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State in Interest of C.S.

Decided: December 18, 1990.

STATE IN THE INTEREST OF C.S.


On appeal from the Superior Court of New Jersey, Law Division, Union County.

Dreier and Ashbey. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

[245 NJSuper Page 47] The State appeals by leave granted from a suppression order in this juvenile proceeding. A detective seized various items, including traces of cocaine, marijuana, drug paraphernalia, nunchucks and a switch blade knife from the juvenile's bedroom. On the basis of this seizure, the detective arrested the juvenile at school, where in a search incident to the arrest, the detective also seized brass knuckles and further quantities of marijuana. The juvenile successfully moved to suppress all of the evidence

on the basis that the consent to search his room had been signed only by his father. It is undisputed that the juvenile lived in a home owned solely by his mother, the parents having been divorced for seven years prior to the events in question.

The sole witness on behalf of the State was the arresting officer, a juvenile detective. He testified that he had spoken with the juvenile's parents when, together, they came to his office one evening and "expressed their concern" that their child "appeared to be under the influence on occasion, that he was acting irrational, maybe violent at times. And they just were looking for some guidance at that particular time." The officer gave the parents pamphlets, directions for support groups and general advice.

Some time after the initial contact, the detective received a call from the boy's father. He told the detective that he believed his son had drugs in his room and he wanted the police to come and look into it. The detective went to the house and found the father present. Also present were the boy's maternal grandmother (who lives in the home with the mother), a maternal uncle who also lives at the premises, and possibly two maternal aunts who had been staying with their sister (the boy's mother) for a few months. Although the record does not state the circumstances of the father being on the premises, the mother testified that she assumed that her mother had let him in. She acknowledged that her husband had recently started to play an active role in the boy's upbringing. The father informed the detective that since they had their first conversation, he had been "keeping an eye on the boy and his room." He informed the detective that he saw a pipe in the room and told him it was there. The officer offered the father a form containing a consent to search the premises, and the detective explained it would be used specifically to search the son's room. The items noted earlier were then discovered.

The mother testified that she was the sole owner of the premises, and neither she nor anyone on her behalf had consented

to a search of the house. While her mother may have let her ex-husband into the home on this occasion, the boy's father did not spend much time there.

The Fourth Amendment proscribes unreasonable searches and seizures to insure that citizens will be protected from warrantless searches. And see N.J. Const. (1947), Art. I, para. 7. An exception to the warrant requirement is when a search is supported by voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Miller, 159 N.J. Super. 552, 556, 388 A.2d 993 (App.Div.1978). Such consent can be granted either by the owner of the property or by any third party who possesses common authority over the premises. United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974); State v. Miller, 159 N.J. Super. at 558, 388 A.2d 993. The burden of proof for showing validity of consent falls upon the State, and is satisfied in this context by a showing that the consent was voluntary, State v. Johnson, 68 N.J. 349, 353-354, 346 A.2d 66 (1975), and that

permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. [ State v. Miller, 159 N.J. Super. at 557, 388 A.2d 993 (citing Matlock, 415 U.S. at 171, 94 S. Ct. at 993, 39 L. Ed. 2d at 250)].

The test hinges upon a finding of

mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that others have assumed the risk that one of their number might permit the ...


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