On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-03-0671.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Sapp-Peterson.
Defendant appeals the denial of his motion to suppress evidence seized from a backpack located in a home where defendant was found. We affirm.
Following his indictment on six counts of narcotics and weapons offenses, defendant filed a motion to suppress the items seized from the backpack. The motion proceeded on the following stipulated facts, which included a stipulation that police were lawfully on the premises where the evidence was seized.
Responding to information that a Hispanic male wearing a black vest was carrying a duffel bag containing a machine gun, the police were given consent to enter the house by the woman who responded to their knock on the door, Wanda Rios. In addition to Rios, defendant was also present in the premises. Upon entry, police observed a bulletproof vest next to a bed. Later, as they walked towards a bedroom, they saw a backpack leaning against a wall. At this point, police detained both Rios and defendant. Rios denied ownership of the backpack and vest. She told police that both items belonged to defendant. When questioned about the bag, defendant also denied ownership. Rios consented to a search of the premises and police provided her with a "Consent to Search" form which she executed. Police searched the backpack, which contained a machine gun and, in a small, clear plastic baggy, suspected cocaine. As a result of the search, defendant was arrested and charged with weapons and narcotics offenses.
Before the motion judge, defendant argued that because Rios repudiated ownership of the vest and backpack, she did not have the right to consent to the search of those items. The court rejected this argument and the denied the motion. The court found that based upon the undisputed facts that it was Rios' apartment, her denial that the items belonged to her, and defendant's denial of any ownership of the items, she had the right to extend her consent to the search of items found in her apartment. On appeal, defendant raises the following arguments:
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY ART. 1, [¶] 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS, ILLEGAL SEARCH AND SEIZURE OF THE BACKPACK.
A. THE DEFENDANT HAS STANDING TO CONTEST THE LEGALITY OF THE SEARCH AND SEIZURE.
B. THE POLICE HAD NEITHER ACTUAL NOR APPARENT AUTHORITY TO SEARCH A BACKPACK BASED UPON THE CONSENT OF A PERSON WHO INFORMED POLICE PRIOR TO THE SEARCH THAT SHE DID NOT OWN THAT BACKPACK AND THAT IT BELONGED TO A THIRD PARTY.
C. THE COURT IMPROPERLY RELIED ON A THEORY OF ABANDONMENT TO JUSTIFY THE WARRANTLESS SEARCH OF THE BACKPACK.
Police violate no constitutional prohibition against the warrantless search of property when the search is preceded by valid consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973); State v. Johnson, 68 N.J. 349, 353-54 (1975). Consent may be obtained from someone other than the suspect if the consenting person has a "'sufficient relationship to[,] the premises or effects sought to be inspected[.]'" State v. Coyle, 119 N.J. 194, 215 (1990) (quoting U.S. v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974)). See also State v. Maristany, 133 N.J. 299, 305 (1993). The searching officer must have an objectively reasonable belief that the consenting person has the authority to consent. State v. Suazo, 133 N.J. 315, 320 (1993). Furthermore, knowledge of the right to refuse consent is a factor the court may consider in ...