{"id":8264,"date":"2013-07-04T08:03:32","date_gmt":"2013-01-22T08:06:24","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-01-22T08:06:24","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=8264","title":{"rendered":"NJ agrees to hear whether police can overcome refusal of consent by removing the accused and asking somebody else with authority"},"content":{"rendered":"

NJ grants a petition for certification on whether a suspect’s objection to a search is still binding on state after they remove him so they can ask somebody else for consent. That is, can the state overcome Randolph<\/a> by removing the objector? State v. Lamb, 213 N.J. 531, 65 A.3d 259 (2013):<\/p>\n

It is ORDERED that the petition for certification is granted limited to the issue of whether consent by an occupant to search premises is constitutionally effective against a third party when an absent co-tenant has objected to the search.<\/p><\/blockquote>\n

The appellate court thought so: State v. Lamb<\/a>, 2012 N.J. Super. Unpub. LEXIS 1521 (June 28, 2012) (unpublished):<\/p>\n

Defendant also argues that even if Karen Marcus’s consent were knowing and voluntary, it was ineffective because Steven Marcus had already denied police permission to enter. We disagree.<\/p>\n

We recognize that a co-occupant’s consent is ineffective when it is countered by the contemporaneous refusal of another co-occupant, who is physically present and is the target of the police investigation. Georgia v. Randolph, 547 U.S. 103, 120, 126 S. Ct. 1515, 1526, 164 L. Ed. 2d 208, 226 (2006). “We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Ibid. (emphasis added). However, the Supreme Court did not address the situation posed here \u2014 “the constitutionality of a search as to a third tenant [in this case, defendant Lamb] against whom the government wishes to use evidence seized after a search with consent of one co-tenant subject to the contemporaneous objection of another[.]” Id. at 120 n. 8, 126 S. Ct. at 1526, 164 L. Ed. 2d at 226.<\/p>\n

Steven Marcus’s objections also did not negate Karen Marcus’s consent; he was no longer present, his refusal no longer contemporaneous, and there was no finding that he was removed for the sake of avoiding his objection. See Id. at 121, 126 S. Ct. at 1527, 164 L. Ed. 2d at 226-27 (consent of one co-occupant not ineffective “[s]o long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection”). See also United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 249 (1974) (“[T]he consent of one who possesses common authority over premises or effects is valid as against<\/em> the absent, nonconsenting person with whom that authority is shared.”) (emphasis added).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-8264","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/8264","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=8264"}],"version-history":[{"count":0,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/8264\/revisions"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8264"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8264"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8264"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}