NJ: Joint occupancy by adults with separate bedrooms doesn’t give apparent authority over each other’s rooms

Because of the heightened privacy protection in the home, it was unreasonable for the officer here to conclude that one adult resident of a home could consent to a search of the room of another adult resident. “Third parties derive authority from common and joint use of space. That requirement calls for careful scrutiny when applied to parties who are not the homeowners yet are purporting to authorize consent to search the bedroom of an adult in the home in which he resides. Here, the officer failed to ask adequate questions at the scene before he followed Mylroie into defendant’s room and then peered into his closet. Officer Ziarnowski could not have relied on an apparent authority by Mylroie as the basis for valid third-party consent to his initial search of defendant’s bedroom.” State v. Cushing, 2016 N.J. LEXIS 723 (Aug. 3, 2016). Syllabus:

The record contains ample evidence to support the Appellate Division’s conclusion that Betty Cushing did not have actual authority to consent to the search of defendant’s room, and Betty could not have conferred through any power of attorney an authority that she did not possess herself. In addition, it was not objectively reasonable for Officer Ziarnowski to rely on an apparent authority by Mylroie as the basis for valid third-party consent to his initial search of defendant’s bedroom.

1. The search of a home raises heightened privacy concerns. The United States Supreme Court has recognized, however, that in certain circumstances a third party — a person other than the defendant — can validly consent to a search of the defendant’s home. Also, in recognition of the many factual settings that confront a law enforcement agent, an officer may, depending on the circumstances, rely on the apparent authority of a person consenting to a search. This Court also applies, under the State Constitution, the consent exception to third parties who possess actual authority based on their common use of the space searched. See State v. Suazo, 133 N.J. 315, 319-20 (1993). Furthermore, even when the third party does not possess actual authority to consent to a search, this Court has recognized that evidence seized during such a search need not be suppressed under the State’s constitutional requirements if 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. Coles, 218 N.J. 322, 340 (2014) (quoting Suazo, supra, 133 N.J. at 320). (pp. 12-15)

2. The question whether an expectation of privacy existed here is easily resolved. Defendant had a clear privacy expectation in his room, which both he and his grandmother recognized. Authority to consent to search a particular area of a home turns on common usage, and Betty Cushing’s evident lack of common use of defendant’s bedroom and her recognition of his exclusive control of that space meant that only defendant possessed the ability to consent to a search of his bedroom and interior space. The record contains ample evidence to support the Appellate Division’s conclusion that Betty Cushing did not have actual authority to consent to the search of defendant’s room. There is no need to address whether Mylroie had actual authority to consent to the search of defendant’s room by virtue of an asserted power of attorney because Betty could not have conferred through any power of attorney an authority that she did not possess herself. (pp. 15-18)

3. The standard for determining whether a police officer may rely on a third party’s apparent authority is whether the officer’s belief at the time was objectively reasonable. That standard is not satisfied in this case based on the proofs presented at the suppression hearing. Although there is no reason to question the officer’s good faith when interacting with Mylroie at the house, the Court cannot conclude that the officer’s belief that Mylroie had authority to consent to entry and inspection of defendant’s bedroom was objectively reasonable. Third parties derive authority from common and joint use of space. That requirement calls for careful scrutiny when applied to parties who are not the homeowners yet are purporting to authorize consent to search the bedroom of an adult in the home in which he resides. Here, the officer failed to ask adequate questions at the scene before he followed Mylroie into defendant’s room and then peered into his closet. Officer Ziarnowski could not have relied on an apparent authority by Mylroie as the basis for valid third-party consent to his initial search of defendant’s bedroom. The Court further agrees with the Appellate Division that this matter requires remand for the trial court to address whether the independent-source doctrine applies under the circumstances. (pp. 18-21)