The defendant moved to suppress evidence seized from his car during a warrantless search. The State sought to justify the search as a consent search on the basis that the defendant had signed a form (Appendix A) stating that he consented to the search. Although the defendant admitted that he had signed the form, he argued that he had not voluntarily consented to the search. After a hearing this Court held that the defendant's consent was involuntary based on the law applicable to the State's version of the facts surrounding the signing of the consent form. The prosecutor immediately announced her intention to move for leave to appeal, and this opinion is intended to supplement the Court's decision pursuant to R. 2:5-6(c).
At 9:15 a.m., August 1, 1988, a search warrant was issued to search the person of George Hladun and his residence at 1480 Easton Avenue, Franklin Township, Somerset County, New Jersey. The warrant was executed one hour and 5 minutes later at 10:20 a.m. The officers knocked on the rear door of the defendant's residence, and when he raised a window shade and looked out they announced their identity. Because the defendant did not open the door, the officers had to break open the
door in order to gain entry into the residence. Entering the premises with guns drawn, the officers saw the defendant standing in the living room. They told him they had a warrant to search him and his residence and the defendant was asked to lie down on the floor. When he refused, the officers forced him to lie down and he was handcuffed. The officers then saw that there was marijuana on a coffee table in the living room and the defendant was told that he was under arrest. Still handcuffed, he was placed on a sofa in the living room. The defendant was very angry and shouted obscenities at the officers but after a few minutes he calmed down, the handcuffs were removed, and the defendant was given Miranda warnings. After a few more minutes, he resumed shouting obscenities at the officers and they handcuffed him again. The officer in charge then directed other officers to remove the defendant from the premises and to take him to Franklin Township Police Headquarters. When the defendant refused to accompany the officers he was dragged barefoot from his residence to a police car and taken to police headquarters.
Before he was removed from his residence, one of the detectives from the prosecutor's office asked the defendant to sign a form consenting to the search of his car. The defendant refused. At police headquarters, the defendant was again given Miranda warnings and asked to sign the form by the same detective. The defendant again refused. Finally, the defendant was approached by a Franklin Township officer who told him that the officers from the prosecutor's office were leaving, that marijuana had been found in his home, that they did not have a search warrant to search his car but could apply for a warrant, and that while defendant could refuse to sign the form it would be faster if he consented since they would not have to get the warrant. The defendant then stated, "you know what's in there." The detective replied that he did not know what was in the car and that was why they were asking for his consent. Defendant then stated: "You must know what's in there if you want to search the car. You guys are
going to get it one way or the other. I have to be honest with you. There's a suitcase of marijuana in there." The defendant then signed the consent form. It was then 11:10 a.m., approximately 50 minutes after the officers knocked on the door of the defendant's residence to execute the warrant.
The motion to suppress evidence raises a number of issues which have not heretofore been discussed in the published opinions of the courts of the State of New Jersey. First, what is the effect of the prior refusals to consent during the 50 minutes before the consent form was signed? Second, what is the effect of the officer's statement that the police could apply for a search warrant if the defendant refused to consent to the search of his car?
Where valid consent is given, a search may be conducted without a warrant and without probable cause. Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970). In the federal courts, a consent to search is valid if the search is "voluntary" which means that it was free of duress or coercion. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). In New Jersey, in order for the consent to be "voluntary" it must not only be free of coercion but also must be knowing, i.e., with knowledge of the right to refuse consent. State v. Johnson, 68 N.J. 349 (1975). The voluntariness of a consent must be determined from the totality of the circumstances, Schneckloth v. Bustamonte, 412 U.S. at 218, 93 S. Ct. at 2043, and the State has the burden of proving by clear and positive testimony that the consent was voluntarily given. State v. King, 44 N.J. 346 (1965), habeas corpus den. sub nom. King v. Pinto, 256 F. Supp. 522 (D.N.J.1966).
A number of factors have been identified as being relevant in determining whether a consent to search is or is not voluntary. W. LaFave, Search and Seizure Sec. 8.2 (1987). Among the factors weighing against a finding of voluntariness in this case are the following:
1. Suspect under arrest. In this case the defendant was under arrest in police headquarters at the time he signed the consent form. Such circumstances weigh against a finding of voluntariness. United States v. Hall, 565 F.2d 917, 921 (5th ...