NJ: Defendant’s stepfather’s refusal to consent didn’t bar his mother’s consent under Randolph and Fernandez

Defendant’s stepfather’s refusal to consent didn’t bar his mother’s consent under Randolph and Fernandez. State v. Lamb, 218 N.J. 300, 95 A.3d 123 (2014):

The focus of this appeal is whether the strenuously expressed statements by defendant’s stepfather that the police should remove themselves immediately from the premises overrides the later consent given by defendant’s mother. We conclude the rule announced in Randolph, supra, does not render the consent given by defendant’s mother nugatory and the search unreasonable.

First, Randolph is a very narrow holding. The Supreme Court recognized that it was drawing a fine and formal line but justified the ruling as providing “practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it.” 547 U.S. at 121, 126 S. Ct. at 1526, 164 L. Ed. 2d at 226-27.

The Supreme Court also emphasized that a search predicated on the consent of one co-tenant over the objection of another co-tenant renders the warrantless search constitutionally infirm as to the objecting co-tenant. Id. at 120, 126 S. Ct. at 1526, 164 L. Ed. 2d at 225-26. Thus, even in the face of Marcus’s demand that the police leave his property, Karen’s consent does not render the search constitutionally unreasonable as to defendant. We also note that neither Detective Acton nor Karen testified that Marcus renewed his objection to the police presence at the time he agreed to leave the house almost an hour after his initial objections.

In addition, despite defendant’s authority to consent or refuse consent to a warrantless search of the house, the record clearly reveals that defendant agreed to leave the house after protracted telephonic discussions between the police and Marcus and then Karen. The record provides no support that defendant’s removal and Marcus’s earlier exit from the house were designed to prevent either occupant from objecting to the warrantless search of the room defendant occupied over this holiday weekend. Indeed, the police had probable cause to arrest defendant for the earlier shooting and to detain Marcus once he left the house.

Finally, any doubt that police conduct did not comport with the limited holding in Randolph is resolved by Fernandez. As recognized in Fernandez, supra, an occupant who is absent due to a lawful detention or arrest is in the same position as an occupant who is absent for any reason. 571 U.S. at __, 134 S. Ct. at 1134, 188 L. Ed. 2d at 35. Thus, we are not confronted with the exception to the fine and formal rule announced in Randolph, supra, of police removal of an objecting co-tenant to avoid a possible refusal. 547 U.S. at 121, 126 S. Ct. at 121-22, 164 L. Ed. 2d at 227. Moreover, by virtue of his removal from the immediate scene, Marcus’s earlier objection to police was no longer effective, Fernandez, supra, 571 U.S. at _ _, 134 S. Ct. at 1135-36, 164 L. Ed. 2d at 35-37, and Karen had full authority to consent to a search of her home, id. at __,134 S. Ct. at 1137, 164 L. Ed. 2d at 38.

Finally, this Court must recognize, as did the motion court and the appellate panel, that the circumstances surrounding the consent obtained from Karen were infused with exigency. To be sure, the State did not rely on exigency to support the validity of the consent search of the Marcus house. Nevertheless, once police located defendant and received information from his girlfriend that corroborated the earlier report of a shooting and that the gun may have been in the house, the police were faced with a critical situation. The Marcus house was small, no more than 880 square feet, and located in close proximity to other dwellings. Once defendant’s girlfriend, Marcus, and finally defendant left the dwelling, Karen remained inside with three very young children in close proximity to a loaded gun. See De La Paz, supra, 337 N.J. Super. at 195-96, 766 A.2d 820 (identifying several factors that indicate exigent situation justifying warrantless entry).