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State of New Jersey v. Gary L. Adorno

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 28, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARY L. ADORNO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-03-0671.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 9, 2011

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:

[POINT I]

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 determining the validity of the consent. Schneckloth, supra, 412 U.S. at 227, 93 S. Ct. at 2048, 36 L. Ed. 2d at 863. In addition, the consenting person must waive his or her right to refuse to consent. Johnson, supra, 68 N.J. at 354.

Relying upon State v. Allen, 254 N.J. Super. 62 (App. Div. 1992), defendant contends the permission Rios gave to police to search her apartment did not extend to the personal possession of another. In Allen, the passenger of a vehicle stopped by police, who was also the registered owner of the vehicle, authorized police to search her vehicle. Id. at 63-64. We held that her consent to search the vehicle did not extend to the luggage in her vehicle owned by the other occupants of her vehicle. Id. at 67. We held that A third person's consent "cannot validate a warrantless search when the circumstances provide no basis for a reasonable belief that shared or exclusive authority to permit inspection exists in the third person. . . ." United States v. Block, 590 F.2d 535, 540 (4th Cir. 1978). A consent to search especially lacks validity where the third person actually disclaims any right of access. Ibid. Even where a third-party has authority to consent to a search of the premises, that authority does not extend to a container in which the third party denies ownership, because the police are left with "no misapprehension as to the limit of [the third party's] authority to consent."

People v. Egan[, 58 Cal. Rptr. 627, 630 (Cal. Dist. Ct. App. 1967)]. In short, a third-person's consent to a search is not valid as to a container over which the third-person disclaims ownership. State v.

Terry Lee, supra. That is exactly the situation here. While Day consented to the search, she denied ownership of the maroon suitcase. Thus, her consent cannot validate the search of that container. [Id. at 67.]

Unlike the circumstances present in Allen, there is no conflicting evidence surrounding ownership of the backpack and vest here. In Allen, there was conflicting testimony whether the defendant claimed ownership of the luggage searched prior to police searching the bag, and the motion judge made no findings to resolve this conflict, a finding which we determined was pivotal to determining the validity of the search. Id. at 68. No such conflict exists here. It is undisputed that not only did Rios deny ownership of the backpack and vest, she also told police that the items belonged to defendant. Defendant denied ownership of the items.

We agree, as defendant urges, that his denial of ownership of the items did not mean that the items had been abandoned or stripped him of his right to challenge the validity of the search. See State v. Johnson, 193 N.J. 528, 551 (2008) (holding that "'a mere disclaimer of ownership in an effort to avoid making an incriminating statement in response to police questioning should not alone be deemed to constitute abandonment[.]'" (quoting 1 LaFave, Search and Seizure § 2.6(b), at 588-89 (3d ed 1996))). However, his denial of ownership did strip him of his right to challenge the validity of the consent Rios gave to police to search the backpack and vest based upon Rios's denial that she. See Allen, supra, 254 N.J. at 68 (noting that if upon remand, the trial court found that police uncovered the drugs before the defendant claimed ownership of the luggage, it would be too late to invalidate the search). Here, defendant denied ownership of the items. Thus, the only question that remains is whether Rios' relationship to the items was such that it justified the objectively reasonable belief of the police that she was authorized to give consent for the search of those items.

Consent may be obtained from either the person whose property is to be searched or a third party, so long as the consenting third party has the authority to bind the accused. Matlock, supra, 415 U.S. at 168-70, 94 S. Ct. at 992-93, 39 L. Ed. 2d at 248-49. State v. Farmer, 366 N.J. Super. 307, 314 (App. Div.), certif. denied, 180 N.J. 456 (2004); State v. Miller, 159 N.J. Super. 552, 558-59 (App. Div.), certif. denied, 78 N.J. 329 (1978). Here, the vest and backpack were located within Rios' apartment. The only other person present in the apartment was defendant, who disclaimed ownership of the items. Hence, the presence of those items within Rios' apartment established a sufficient nexus to Rios that justified her providing written consent to the search of the premises.

Any claim that Rios' consent was involuntary is negated by the Consent to Search Form, which included her written consent and acknowledgement that she had the right to refuse police her consent to search.

Affirmed.

20110328

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