On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-08-2780.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Maven.
Following the entry of a guilty plea to the second-degree crime of certain persons not to possess weapons, N.J.S.A. 2C:39-7(b), defendant Byseem T. Coles appeals the denial of his motion to suppress the guns found in his bedroom in his aunt's home. We agree with defendant's contention that his aunt did not have common authority over his bedroom, and therefore could not consent to the search. Moreover, the failure of the police to ask defendant for his consent --especially when defendant was nearby and was being held in police custody under circumstances that were, at best, questionable -- rendered the ensuing search unlawful. We reverse the denial of defendant's motion to suppress.*fn1
On May 19, 2009, at approximately 11:30 p.m., Sergeant Zsakhiem James of the Camden Police Department received a dispatch directing him to proceed to the 1100 block of Lakeshore Drive to investigate the report of a robbery in that area. The dispatcher told him that the victim provided a description of the suspect, stating he was a black male wearing black pants and a gray hooded sweatshirt, with a mask obscuring his face. The victim informed the police that her assailant fled on Lakeshore Drive toward the intersection of 12th Street and Lakeshore. Within minutes, James arrived at that location, and almost immediately, saw defendant, who "was the only male on the street." Because defendant's clothing "exactly" matched the description the victim had provided, James exited his vehicle and approached defendant. James left his K-9 partner in the back of his patrol vehicle.
James testified that he asked defendant "where he was coming from." Defendant's response and demeanor caused James to become suspicious, especially when defendant began "looking around as he if was going to run." At that point, James decided to detain him; however, James called for another police unit because the dog took up the entire rear area of James's patrol car.
When the other police officer arrived, the two officers patted defendant down for weapons, found none and secured him in the back of the second police vehicle. When asked for his address and identification, defendant provided a specific address in the 1200-block of Lakeshore Drive, but was unable to provide any identification. James testified that he asked for identification to definitively establish defendant's identity, because there had been a number of robberies in the area in which suspects had been providing false addresses when stopped and questioned.
James asked defendant if there was anyone home who would be able to identify him. Defendant responded that his aunt and cousin were home. In the meantime, the victim was brought to the scene, but was unable to identify defendant. She stated that although defendant was wearing "the exact same clothes" as her assailant, she was unable to identify him "by face because the robber had a mask on." In light of the victim's statement that defendant was wearing "the exact same clothes," James decided to conduct a further investigation. With defendant still seated in the rear of the police vehicle, James proceeded to the address on Lakeshore Drive that defendant had provided, which was only "six houses" away from where defendant was secured in the rear of the police vehicle.
Upon arriving at the house, owned by defendant's aunt, Thelma Coles, James informed her that he was in the process of investigating a robbery and had in his custody Byseem Coles, who claimed to live at that address. Ms. Coles responded that it was not possible for police to have her nephew in custody because "she just heard him inside . . . his room moving and banging around." James did not ask defendant's aunt to come outside and look in the police vehicle to determine if the person in police custody was indeed her nephew. Instead, Ms. Coles sent a family member upstairs to check, and learned that defendant was not home.
At that point, James asked Ms. Coles for permission to search defendant's bedroom because James believed that defendant may have "run into his room, . . . dropped off the weapon and then come back out." To be certain that Ms. Coles possessed the authority to consent to the search of defendant's bedroom, James asked her if she was the homeowner, and whether defendant resided at the house, to which she answered in the affirmative. James testified that he specifically advised Ms. Coles that she had the right to refuse consent. Although he sought permission to search the "entire home," James told Ms. Coles that his main concern was defendant's bedroom. Although several of the adults in the home were urging Ms. Coles to refuse to consent, she ultimately agreed to allow James and the other three officers to search defendant's bedroom, and signed a written consent form.
She followed James to the second floor, and pointed to defendant's bedroom. James noticed a padlock hanging from the door of defendant's bedroom. When James asked her about the padlock, and specifically asked her if she had access to the room, she stated that she sometimes "slept in that room, and just slept in that room recently." She also explained that she had placed the padlock on the door before defendant moved in because "she didn't want her grandchildren getting into other people's stuff."
Because the door to defendant's bedroom was ajar, James was able to enter the room merely by pushing the door open. Upon entering the room, James began visually surveying its contents, looking for places where evidence relating to the reported robbery, such as a handgun, a purse or its contents, might be hidden. Opening the closet, James observed a black and yellow duffle bag in the lower right side of the closet. When he grabbed the duffle bag to move it out of the way, James was able to immediately determine that there was a shotgun inside. James explained that he was familiar with the feel of a shotgun grip because he owned one himself. When the original duffle bag was moved, a gray and black bag underneath it fell and made a loud "thump." James ...