Conford, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
Pursuant to leave granted, plaintiff appeals from an order of the Essex County Court granting the motion of defendant Martha Powell to suppress certain evidence taken from the latter's apartment by a member of the Newark Police Narcotics Squad.
Following the indictment of defendants Charles Hagan and Martha Powell by the Essex County grand jury for violation of R.S. 24:18-4 (illegal possession of marijuana) they moved to suppress certain evidence obtained by the police as the result of a search of the apartment leased by the latter at 382 Dayton Street, Newark. At the hearing on the motion McNulty, the officer who had obtained the evidence (a bag of marijuana), testified that prior to the time he went to the apartment defendants had been arrested and were in custody at East Orange police headquarters for possession of marijuana. When he telephoned there, defendant Hagan told him that there was another pound of marijuana in a bedroom of the apartment and asked him to retrieve it. Hagan told him where in the bedroom it was located and asked him not to
tell the children he would find in the apartment that "they" were in custody. He and another detective then proceeded to the apartment where they were admitted by two young girls. When a search failed to yield the bag of marijuana, he phoned Hagan again to tell him that the bedroom bureau, where he had been told it would be found, was bare. Hagan told him to try "looking down along the bureau" and when he did so the bag was found.
Based upon the foregoing testimony, the motion to suppress was denied as to Hagan but granted as to Mrs. Powell, the court concluding that Hagan, "being a guest in the apartment, could not lawfully consent to a search" insofar as she was concerned. When plaintiff moved for leave to appeal we remanded the case to the Essex County Court for the taking of testimony and the submission of findings as to the nature of Hagan's relationship to the searched apartment.
At the hearing on remand McNulty testified that Hagan had requested him to go to the apartment and pick up the marijuana. Hagan told him that he "was living there with Martha Powell; * * * his girlfriend;" said there were children in the apartment and cautioned him, "please don't shake the kids up"; and told him there was a sick child in the bedroom where the marijuana would be found in a brown paper bag on the bureau. Although Hagan did not testify, the Newark police were given a different address for him when he was brought there from East Orange.
The county judge found that at the time of the search Hagan was an "occupant" of the apartment with the permission of codefendant Powell, and concluded that his occupancy partook of "the nature of a tenant at sufferance."
Plaintiff's present appeal is buttressed solely upon its contention that Hagan's status was such that his authorization was sufficient to constitute the search a reasonable one so far as the co-defendant was concerned.
Counsel has submitted no New Jersey case in which the cited issue has been passed upon. In general, the rule is well settled that when a co-owner of premises consents to a
search thereof, the fruits of the search are admissible in evidence in a criminal prosecution against his nonconsenting co-owner. This rule has been applied to a defendant's co-owner wife, Roberts v. United States, 332 F.2d 892 (8 Cir. 1964), certiorari denied 380 U.S. 980, 85 S. Ct. 1344, 14 L. Ed. 2 d 274 (1965); State v. Cairo, 74 R.I. 377, 60 A. 2 d 841 (Sup. Ct. 1948). The same rule was applied in a case where the mother of a defendant, as owner, gave consent to a search of his room in her home (which he occupied with his brothers). Maxwell v. Stephens, 348 F.2d 325 (8 Cir. 1965), certiorari denied 382 U.S. 944, 86 S. Ct. 387, 15 L. Ed. 2 d 353 (1965). Compare Reeves v. Warden, Maryland Penitentiary, 346 F.2d 915 (4 Cir. 1965.) The rule applied in Maxwell is to be distinguished from that applicable to the occupant of a room in a boarding house or a guest in a hotel. Stoner v. State of California, 376 U.S. 483, 490, 84 S. Ct. 889, 11 L. Ed. 2 d 856 (1964).
An examination of the authorities in other jurisdictions reveals a number of cases in which the capacity to consent to search has, under special circumstances, been extended to those who, while not possessing legal co-ownership status, exhibit a de facto control over the premises which is coextensive with that of the true owner. Thus, in Drummond v. United States, 350 F.2d 983 (8 Cir. 1965), certiorari denied Castaldi v. United States, 384 U.S. 944, 86 S. Ct. 1469, 16 L. Ed. 2 d 542 (1966), defendant had rented a garage outbuilding in which he carried on a counterfeiting venture. Some weeks after the letting, his lessor became a participant in the activities being carried out there. The court held that the lessee thereafter ...