Court rules on consent to search objects belonging to a third party

Professional Development 

A recent New Jersey Appellate Court decision clarified that an adult defendant’s aunt and mother did not have authority to consent to a search of closed containers belonging to the defendant even though they were discovered in his mother’s room inside of his aunt’s house.

The decision was made in State v. Yves M. Marcellus (A-4102-19, App. Div. 2022), and it should be noted that it was made notwithstanding the fact that the appellate court specifically pointed out that the trial court never made findings to determine the lawfulness of the consent provided by the defendant’s mother. In short, the appellate court looked past that unresolved issue to determine “whether consent was validly given for a search into an opaque bag and closed shoebox that everyone, including police, knew belonged exclusively to defendant.” Ibid.

This consent search unfolded during the course of a homicide investigation where the police suspected that the defendant’s clothing, worn at the time of the incident, may have been in the home of a third party. In this case, the third party was the defendant’s aunt and mother. The defendant’s aunt told police that the defendant’s mother also lived at her house, but the defendant himself was not allowed on her property. The defendant acknowledged these facts during his statements to police prior to the search, but he also advised the police that he occasionally slept in a shed in his aunt’s yard.

After the defendant’s aunt signed a consent-to-search form in the presence of the defendant’s mother, the police stated that they “were looking for some of the defendant’s belongings … particularly his clothing.” Ibid. The police then entered the defendant’s mother’s room and asked, in English, “Where would his clothes be?” Ibid. The defendant’s mother, who spoke no English, “took [the police] to [a] garbage bag.” Ibid. The police then opened the garbage bag, which contained “slacks, [a] shirt [and] a sock.” Ibid. The police then observed “a box of Converse sneakers [and they] opened the box” and found “Converse sneakers covered in mud.” Ibid.

Based in part on the physical evidence discovered by police during a warrantless consent search, the defendant later pleaded guilty to aggravated manslaughter. The appeal contesting the warrantless search was subsequently filed.

Although it is well established that officers may rely on a third party’s consent to a search “when the consenter has common authority for most purposes over the searched space” (quoting State v. Coles, 218 N.J. 322, 340), the question addressed in this decision is “whether the officer’s belief that the third party had the authority to consent was objectively reasonable in view of the facts and circumstances known at the time of the search.” State v. Yves M. Marcellus quoting State v. Suazo, 133 N.J. 315, 320 (1993).

According to the court, “Although the record presents grave questions about whether defendant’s mother gave police consent to search her room, even an assumption that she validly consented takes the legality of this search only so far. A thorough search of the record finds no evidence that would permit even an inference that the police possessed an objectively reasonable belief that either the defendant’s aunt or the defendant’s mother had a possessory interest in the opaque bag and shoebox. The police well understood that those items and their contents belonged to no one but defendant. So, it would not have been objectively reasonable for police to believe that either defendant’s aunt or defendant’s mother, neither of whom ever claimed ownership of the bag, the shoebox or their contents, had the authority to permit a search into them.” Ibid.

“The circumstances facing the police at the moment they decided to open the bag and shoebox without a warrant was hardly different from what occurred in Suazo, where the Court acknowledged that a driver with ‘immediate possession of and control over’ a motor vehicle may consent to a search of the vehicle, but ‘in the absence of evidence of joint access to or control over property found in the vehicle, a driver’s apparent authority to consent to a search of the car does not include the authority to permit a search of the personal belongings of other passengers.’” 133 N.J. at 321 (citing numerous cases in support) Ibid.

In other words, as “explained in another case, [e]ven where a third-party has authority to consent to a search of the premises, that authority does not extend to a container in which the third party denies ownership, because the police are left with ‘no misapprehension as to the limit of [the third party’s] authority to consent.’” Ibid. (internal citations omitted) For example, if a person left a backpack in another person’s home, the owner of the backpack would have no reasonable expectation of privacy “in the premises” that would deter a warrantless search of the premises. However, our courts have continued to rule that the person would have a reasonable expectation of privacy in the backpack and its contents.