The New Jersey Supreme Court recently decided two cases that comment on the United States Supreme Court’s decision in Fernandez v. California. These cases are important to understand the latest New Jersey developments in the important area of consent searches, and should be read carefully by all defense attorneys.
State v. Michael Lamb relies heavily upon Fernandez to validate a consent search. Pennsville police were investigating a shooting in a particular part of town, and their investigation eventually led them to Lamb’s home. A detective came to the front door, and Lamb’s stepfather emphatically instructed him to leave the property. Lamb’s girlfriend then came to the door, and the police took her by her arm and removed her from the house while Lamb’s father continued yelling at them to leave. The girlfriend told the police that Lamb was in the house hiding under a bed. Lamb’s stepfather eventually left the home, and the police arrested him and removed him to a “safe area”. Lamb’s mother then insisted that he leave the house. He did so, and was arrested.
The police then approached the entrance and spoke with Lamb’s mother, who ultimately signed a consent-to-search form and guided the officers to the room that Lamb occupied when he stayed at the house. There the officers located a handgun and a spare magazine. At a motion hearing, the mother testified that she consented to the search because the police threatened her. She testified further that she was upset because one of her other children was distraught, and because her son’s behavior had brought the police to her home. She was also concerned that the police would tear her house apart while searching it. Thus, the record revealed serious issues concerning the circumstances under which the police obtained her consent. Nevertheless, the motion court rejected her testimony, credited the officer’s version of events (which apparently asserted that the officers’ conduct was not threatening or coercive, and that appropriate procedures were followed), found that the mother’s consent was knowing and voluntary, and denied suppression.
This case differed factually from Fernandez in that Lamb’s stepfather, as opposed to Lamb, objected to the search. As to this issue, the New Jersey Supreme Court acknowledged that there were no New Jersey cases which reviewed the constitutionality of a consent search in this factual context (e.g., where someone other than the defendant objected to the search). After making this observation, the Court went on to find that the search was valid because, among other things, the person objecting to the search (Lamb’s stepfather) was not present and voicing his objection when Lamb’s mother purportedly gave her consent. (Apparently, the Court did not believe that the police manufactured the circumstances under which the stepfather was removed from the scene, even though they removed him.)
Regardless of the factual distinction, Lamb’s reasoning is consistent with Fernandez. As such, it is unlikely that the result would have been different had Lamb been the objecting party. (Given the fact that Lamb was hiding under a bed when the police came, it seems unlikely that he would have knowingly and voluntarily consented to a search.) But both Lamb and Fernandez are problematic for the same reasons. They both invite law enforcement to manufacture situations where an objector or potential objector to a consent search is removed from the scene, leaving the occupant who appears more likely to consent to fend for themselves with the police. The officers – many of whom are professional witnesses – then come into court for the suppression hearing and testify that all procedures were followed, and the motion judge finds that the consent was validly given and denies suppression.
Like Fernandez, Lamb ignores the simple fact that there is something patently wrong when someone with a legally cognizable interest in the property to be searched objects to the search in a manner that is clear and unequivocal, as well as contemporaneous with the police activity, and their objection is ignored because they left the scene – particularly when they departed from the scene because the police removed them. No amount of legal reasoning will change this.
The other recent New Jersey decision is State v. Byseem T. Coles, which relied, at least in part, on Fernandez to invalidate a consent search. Coles lived in his aunt’s home in Camden. He had his own bedroom that was padlocked. One night in March, 2008, Coles was detained by police officers investigating a robbery in the area. The police held a show-up at which the victim could not identify him, and searched his person but found no evidence linking him to the robbery. However, they continued to hold him because he had no identifying documents. One of Coles’ relatives was nearby (as was his home), and he asked the police to speak with that person to verify the address he had given them. But the police did much more than that. They also sought and received permission from his aunt to search Coles’ bedroom, and found weapons unrelated to the robbery.
The Court concluded that Coles’ detention ceased to be lawful after show-up failed to produce an identification, and after the search of his person failed to produce evidence of the robbery. Thus, when the police sought consent to search Coles’ room, his detention was no longer lawful, and the circumstances surrounding the granting of consent to search his room were not objectively reasonable. Accordingly, and contrary to the motion court’s conclusion, the search was unlawful and the weapons should have been suppressed.
The Coles Court noted that Fernandez: (a) reaffirmed that consent to search much be granted under circumstances that are objectively reasonable, and (b) the police cannot manufacture circumstances under which the defendant was not present at the scene to object to the search. The consent to search in Coles failed on both points. As noted above, the circumstances under which the aunt gave consent were not objectively reasonable, and Coles was not present to object to the search because by that point, the police were detaining him unlawfully. Thus, the Court relied on, among other things, Fernandez to reach the conclusion that the weapons should have been suppressed.
As the NJ Supreme Court found, there can be no dispute that Coles’ continued detention was unlawful, and that the weapons discovered during the subsequent illegal consent search had to be suppressed. But the result in Lamb remains troublesome because of the manner in which the objecting party was removed from the scene. Any defense attorney who has moved to suppress evidence discovered during a consent search knows that these applications can be uphill battles. If at all possible, clients must be told that they should not consent to a search of anything. Since that is usually impossible, defense attorneys need to develop an understanding of the facts and circumstances surrounding the granting of consent as early as possible in the case. This means obtaining the discovery concerning the consent search (which should consist of more than just the signed consent form), and reviewing it thoroughly with the client. Finally, defense counsel needs to stay on top of the case law in this area, since Lamb and Coles are undoubtedly not or Supreme Court’s final word on this subject.