June 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL W. LAMB, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-09-0490.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 29, 2012
Before Judges Sapp-Peterson and Ostrer.
Following denial of his motion to suppress evidence seized from a warrantless search of a residence, defendant Michael Lamb entered a plea of guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Pursuant to the plea agreement, the court sentenced defendant to a term of five years, with a three-year period of parole ineligibility, and upon the State's motion, dismissed the balance of the indictment, which included two counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a. Defendant now appeals from the denial of his suppression motion. We affirm, as we discern substantial credible evidence to support the trial court's conclusion that the search and seizure of Lamb's handgun was conducted pursuant to the valid consent of Lamb's mother.
Two witnesses testified at the suppression hearing, Pennsville Township Police Detective Greg Acton, and defendant's mother, Karen Marcus.
Det. Acton responded to a report of a shooting by defendant against Miquel Acevedo and Alicia Hill on July 3, 2009. According to Det. Acton - who took taped statements from the alleged victims, and relied on an interviews by his fellow officer - defendant approached Acevedo and his girlfriend, Hill, as they were standing near a parked car in the early evening. He was described as a short white man with dirty blonde hair, wearing a tee-shirt and jeans. He inquired if they knew the whereabouts of a man named Aaron Bradway. Acevedo knew Bradway, but declined to answer.
Defendant left, but then returned in a vehicle driven by a white woman with brown hair. Acevedo said the vehicle was small and silver; Hill described it as small, and dark, either black or dark blue. Defendant introduced himself by name and inquired again about Bradway. When Hill began to respond to Lamb's questions, Acevedo stopped her. Lamb then displayed a black and silver, semi-automatic pistol. Acevedo grabbed the gun and pushed it down toward the interior of the car. The driver then pulled away, Acevedo let go, and then Lamb leaned out the window and discharged a single shot toward Acevedo and Hill. Police later recovered a single .45 spent shell casing in the vicinity.
Based on his prior police record, police determined that Lamb resided at Lot 18 of the South Bridge mobile home community. Det. Acton reconnoitered the area in an unmarked vehicle and found a small, silver-colored vehicle, as Acevedo had described, parked in front of the address. As Det. Acton began to exit his vehicle, he saw a middle-aged white man who had been on the first step of the trailer, immediately run into the trailer and close the door. Det. Acton and Officer Bill Tall began to knock on the door. Two other officers remained outside the perimeter of the trailer.
They heard a man from within loudly command them, "Get the fuck off my property." They knocked again and announced they were looking for Michael Lamb. The door was then opened, and a white man later identified as Steven Marcus, the husband of Lamb's mother, insisted that they leave and said, "Get the fuck off my property. You're not coming in. You don't have a warrant." Det. Acton said that he might have taken a step or two inside the laundry room to which the door opened, or he may have stood in the doorway. He did not recall. Det. Acton asked again for Michael Lamb and Steven Marcus said he was not there.
At that point, a white female in her mid-twenties with brown hair walked toward the door. Police later learned she was Jennifer Garcia. Det. Acton asked her if she was Lamb's girlfriend, and she said she was. As Steven Marcus continued to yell that he get off the property, Det. Acton escorted the young woman out of the trailer. She then told Det. Acton that she was Lamb's girlfriend, and when the officers started banging on the door, Lamb had hid under a bed in the back bedroom. She also said she had seen Lamb with a weapon, but was unsure if he still possessed it. She also recounted the events earlier in the day, explaining that she was driving Lamb in the Deepwater area of Pennsville when Lamb ordered her to pull over. She then described Lamb's two interactions with Acevedo, Lamb's brandishing of a handgun (that he retrieved from the car trunk after the first interchange), and his discharge of the weapon, which she said was "into the air." The woman also informed Det. Acton that along with Lamb and his step-father, the trailer was then occupied by Lamb's mother, Karen Marcus, and three children, between the ages of ten months and eight years.
Police then evacuated the neighboring homes, maintaining a perimeter around the residence. Lieutenant Dave Corman and Sergeant Fred Parkell from the Salem County Prosecutor's office soon arrived. An officer called into the trailer and spoke to, and negotiated with Karen Marcus for five to as many as fifteen minutes. Soon thereafter, Steven Marcus left the trailer. He was then taken into custody and handcuffed and removed from the immediate area.
Det. Acton said the conversations continued with Karen Marcus, who was also arguing with her son. After another ten minutes, Lamb exited the trailer and was placed under arrest.
Det. Acton obtained Garcia's written consent to search her vehicle, but no weapon was recovered. He then spoke to Karen Marcus while she was in her trailer. He requested her consent to search the trailer.
I explained to her the nature of the investigation; that what had apparently occurred in Deepwater; and that we were looking for a firearm. And, at that time, she expressed concern that she didn't want any firearms in her house. And, at that time, I asked her for consent if we would - if she would consent to the search so that we could locate this firearm. And I explained to her that we would be interested in starting the search only in that particular bedroom where Michael was. And, if, you know, if it wasn't in there, then we'd expand it from there; but that we had already checked the vehicle, and it was not in the vehicle.
Det. Acton said he then gave Karen Marcus a written consent form. He advised her she had a right to refuse. She read the form and signed it in his presence at 2:23 a.m. on July 4, 2009. During the subsequent search, Karen Marcus never withdrew her consent. Rather, she told Det. Acton if there was a gun in her house, "she wanted it out of there." Police recovered a Taurus .45 caliber semi-automatic handgun, with a silver-colored slide and a black grip and frame, in a box with a board game. The weapon was loaded with a single magazine that had a six round capacity, but contained five rounds, none in the chamber.
According to Karen Marcus, after her husband opened the door, and the police inquired as to Lamb's whereabouts, Steven Marcus told the officer that Lamb was not there. The officer then asked if Jennifer Garcia was there, Steven Marcus said she was, and then the officer commanded that she come out. Then Steven Marcus asked the officer if he had a warrant, and "the officer said if he had to get a warrant, he was going to rip my f'ing house and everything in it apart." According to Karen Marcus, Steven Marcus then awoke Jennifer Garcia and told her to come to the door, which she did. After Garcia exited, the police commanded Steven Marcus to remain in the trailer after he attempted to see where Garcia was taken. After about forty-five minutes, Steven Marcus attempted to leave the trailer again, and police told him again to remain.
She confirmed Det. Acton's testimony that police called, spoke to her, and requested that Steven Marcus and Lamb come out. She added that the police asked her if there was anyone who could take care of the children, and to exit the trailer with the children, which she refused to do. According to Karen Marcus, she did not know where Lamb was at the time, and Steven Marcus told her to check under the beds. Steven Marcus then exited and was forcefully escorted across a parking area. Karen Marcus located Lamb under the bed, started beating him with a small slat of wood, berating him, and telling him, "You don't bring stuff to my house." Michael then exited.
After that, Lieutenant Krell asked Karen Marcus to come to the back door, which she did. She said officers patted her down to make sure she did not have a weapon, and then allowed her to return to the house with the children.
Lt. Krell and two other officers met with her in the kitchen. She admitted the police told her a gun was in the house, but denied they told her Lamb was a shooting suspect.
She expressed concern about the presence of a gun. She testified that she consented to the search after police told her that if she did not, the police would obtain a warrant and she might be arrested. She stated she did not read the consent form, although she was a high school graduate, nor did an officer read it to her. However, an officer told her she could refuse consent and withdraw her consent at any time.
A. They gave me a form, told me there was a gun in the house, and asked me if I would sign the form. Of course, I asked a few questions.
Q. Okay. What did you ask?
A. I asked - I said, "What if I don't sign the form?" "We'll just get a search warrant."
Q. Did they explain it to you or -
Q. Nothing on the form at all they explained?
A. Just they - if I didn't sign - that I could stop the search at any time. I said, "If I stop the search, then what?"
Q. What did they say?
A. "We'll get a warrant." . . . .
Q. And, the only question you asked was what would happen if you didn't sign the form?
A. What would happen if I didn't sign the form - I asked them that. They said that we could all possibly go to jail. At that time, I didn't know what was going to happen to the kids if we all went to jail. I did not know what was going on outside with my husband. I didn't know what was going on - I didn't know what was going on, period. I felt like I was in the dark. I was just - I didn't want - my daughter was standing there. I didn't want any more stress on her. I didn't know what was going on. I didn't know if they'd come in and take the kids away if I didn't let them, or if we all - if we did go to jail, what would happen with the kids being there. I didn't want, you know, DYFS coming in and taking the kids. I had several things running through my mind at that time. It was a long night.
Q. Do, how would you describe your feelings? How did you feel?
A. I felt like that I was - I had to sign the form just so that my house would be staying in one piece, and my kids would stay where they needed to stay, and just to get it all over with.
In argument before the trial court, both the State and the defense focused on whether Karen Marcus acted voluntarily and free from coercion. In his oral decision denying the motion to suppress, Judge Timothy G. Farrell found that Karen Marcus's consent was freely and voluntarily given. The judge generally credited and adopted Det. Acton's version of events. He found that the officer did stand in the threshold of the doorway when he first spoke to Steven Marcus. He did not resolve the inconsistency between Det. Acton's version, and Karen Marcus's regarding how Jennifer Garcia came to exit the trailer. However, he did not credit Karen Marcus's testimony that Steven Marcus twice attempted to leave the trailer, only to be told to remain, "not because I think Ms. Marcus is lying, but I think she's confused[.]"
Judge Farrell found that the search of the trailer and seizure of the weapon and ammunition were authorized by Karen Marcus's knowing and voluntary consent. He rejected her claim that she did not read the form and the police did not explain it to her, crediting instead Det. Acton's testimony that she did read the form, and noting her own admission that the police advised her she could refuse and withdraw her consent. He found the police statement that if she refused they would get a warrant was a truthful statement, in view of the evident probable cause to search.
He found that Karen Marcus was not coerced to consent. He did not credit Karen Marcus's statement that the police stated her house would be "a lot messier" and arrests would be made if she did not consent but, he stated that even if the "discussion was somewhat similar to that testified by Ms. Marcus," it would have been an accurate prediction if police were compelled to conduct the search without anyone assisting in locating the weapon. Likewise, the prediction of arrests was also accurate, as "[m]ultiple folks that evening could have been arrested based on the facts." Judge Farrell also held that Steven Marcus's insistence that police leave his home did not preclude Karen Marcus from exercising her equal right to consent to a search.
Defendant appeals and raises the following points:
THE OFFICERS' WARRANTLESS ENTRY WHILE DEFENDANT WAS IN CUSTODY, AND THE LACK OF VOLUNTARY CONSENT, NECESSITATE SUPPRESSION OF ALL EVIDENCE SEIZED. U.S. CONST., AMENDS. IV, XIV: N.J. CONST. (1947), ART. 1. PAR. 7.
A. The Officers Lacked Valid Consent to Enter and Search.
B. The Officers Lacked the Necessary Warrant and Exigent Circumstances, and Their Unlawful Entry Negated Any Subsequent Consent.
We defer to the trial court's factual findings on a motion to suppress, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). However, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).
We discern ample support in the record for Judge Farrell's finding that Karen Marcus's consent to search was "unequivocal, voluntary, knowing and intelligent." State v. Sugar, 108 N.J. 151, 156 (1987) (Sugar III). See also State v. King, 44 N.J. 346, 352 (1965) (State must establish consent by "clear and positive testimony"). She was authorized to consent to a search of a bedroom occupied by her adult son. See State v. Crumb, 307 N.J. Super. 204, 243-44 (App. Div. 1997). Her consent was "knowing," as she was informed she had the right to refuse consent. See State v. Johnson, 68 N.J. 349, 354 (1975) (requiring proof that a defendant knew he had the right to refuse consent to search, in order to establish that consent was voluntary); King, supra, 44 N.J. at 353 (trial court must consider the totality of circumstances in assessing voluntariness of consent). She read the consent form and signed it. See State v. Carty, 170 N.J. 632, 639 (2002) (discussing State Police's development of consent to search form).
Karen Marcus's consent was also voluntary. In many cases, the person suspected of possessing contraband or of other criminal activity, is the person from whom consent is sought. One may naturally be skeptical that a person would freely assist police in seizing incriminating evidence. Thus, our Court has found that factors tending to demonstrate lack of voluntariness include that the consenter was under arrest, or handcuffed, or aware that incriminating evidence would be found. King, supra,
44 N.J. at 352. None of those factors are present here. Karen Marcus was not a suspect and was neither restrained nor under arrest.
Whether a family member of a suspect is willing, or reluctant, to assist the police in a search for evidence that would incriminate the suspect, depends on the facts and circumstances. In this case, Karen Marcus was concerned about the risk an undiscovered firearm would pose to the occupants of her home, which included small children. She was also upset that Lamb's actions had drawn the police to her home, creating stress and emotional turmoil for her family. Even before she gave consent to search, Karen Marcus had demonstrated a willingness to assist the police, by persuading both her husband, and her son, to exit the home and surrender to police. See King, supra, 44 N.J. at 353 (defendant's affirmative assistance of police is a voluntariness-positive factor). The fact that police sought consent from Karen Marcus while she was in her own home also tends to support a finding of voluntariness. See State v. Domicz, 188 N.J. 285, 306 (2006) (noting that the greater compulsion to consent to a search along a highway "than when a person is secure in his own home and not under any form of detention").
Obviously, Karen Marcus was under stress, given the events of that evening. She also wanted to avoid prolonging the police's activity in and about her home. Those facts may explain Karen Marcus's motivation to consent, but do not establish that her will was overborne. See State v. Carvajal, 202 N.J. 214, 226 (2010) ("To act voluntarily is to act with a free and unconstrained will, a will that is not overborne by physical or psychological duress or coercion."). See also Wayne R. LaFave, Search and Seizure § 8.2(e) at 92 (4th ed. 2004) (stating that courts will generally reject claim that emotional upset vitiated voluntariness "unless the 'emotional distress was so profound as to impair [the] capacity for self-determination or understanding'" quoting United States v. Duran, 957 F.2d 499, 503 (7th Cir. 1992)).
Nor was her consent involuntary because, according to Karen Marcus, the police officer predicted that if she did not consent, the police would obtain a warrant, the search would likely be more disruptive, and possibly everyone would be arrested. We agree with Judge Farrell's assessment that there was probable cause to conduct a search of the home for the handgun. Acevedo, Hill and Garcia all stated Lamb possessed and discharged the handgun, which was not found in Garcia's vehicle, and which Garcia said Lamb might have possessed in the home. The officer's statement that a warrant would be obtained was permissible, because it "was a fair prediction of events that would follow, not a deceptive threat made to deprive [defendant] of the ability to make an informed consent." State v. Cancel, 256 N.J. Super. 430, 434 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993).
As for Karen Marcus's claim that the officer threatened that the warrant-based search would be more disruptive, and "we could all possibly go to jail," Judge Farrell was not persuaded that the dual threat was made. In any event, he found "even if the discussion was somewhat similar to that testified by Ms. Marcus," such a statement would have been accurate. The record evidence supports the judge's conclusion. Consequently, like the prediction of a warrant, the alleged statements did not vitiate voluntariness.
Defendant also argues that even if Karen Marcus's consent were knowing and voluntary, it was ineffective because Steven Marcus had already denied police permission to enter. We disagree.
We recognize that a co-occupant's consent is ineffective when it is countered by the contemporaneous refusal of another co-occupant, who is physically present and is the target of the police investigation. Georgia v. Randolph, 547 U.S. 103, 120, 126 S. Ct. 1515, 1526, 164 L. Ed. 2d 208, 226 (2006). "We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." Ibid. (emphasis added). However, the Supreme Court did not address the situation posed here - "the constitutionality of a search as to a third tenant [in this case, defendant Lamb] against whom the government wishes to use evidence seized after a search with consent of one co-tenant subject to the contemporaneous objection of another[.]" Id. at 120 n. 8, 126 S. Ct. at 1526, 164 L. Ed. 2d at 226.
Steven Marcus's objections also did not negate Karen Marcus's consent; he was no longer present, his refusal no longer contemporaneous, and there was no finding that he was removed for the sake of avoiding his objection. See Id. at 121, 126 S. Ct. at 1527, 164 L. Ed. 2d at 226-27 (consent of one co-occupant not ineffective "[s]o long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection"). See also United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 249 (1974) ("[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared.") (emphasis added).
Other courts have persuasively held that when a non-consenting suspect was arrested on non-pretextual grounds, his prior objection did not invalidate the subsequent consent of a co-occupant. See United States v. Henderson, 536 F.3d 776, 777-78 (7th Cir. 2008) (where husband-defendant commands police, who were responding to wife's 911 call of domestic violence, to "[g]et the [expletive] out of my house," and is arrested on domestic violence assault charges and removed from the home, wife's subsequent consent to search the home, resulting in seizure of weapons and drugs, was valid); United States v. Hudspeth, 518 F.3d 954, 955-56 (8th Cir. 2008) (wife's consent to search of home computer not overridden by husband-defendant's prior objection made after he was arrested at his place of business on child pornography charges); People v. Strimple, 267 P.3d 1219, 1221-22 (Colo. 2012) (where police responded to common law wife's call of domestic abuse, and defendant-common-law-husband refused to let police in, threatened to kill them if they entered, but eventually surrendered and was taken into custody, defendant's objection to entry did not override wife's consent to search and seizure of firearms, explosives and drugs); State v. St. Martin, 800 N.W.2d 858, 859-60 (Wis. 2011) (girlfriend's consent to search attic valid, notwithstanding that boyfriend, in police custody in nearby police van, thereafter objected to search), cert. denied, ___ U.S. ___, 132 S. Ct. 1003, 181 L. Ed. 2d 745 (2012).
The trial judge did not expressly determine why police obtained Steven Marcus's removal from the home, as defendant did not raise the issue. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (appellate courts generally will decline to consider issues not properly presented to the trial court). However, we will address the issue.
It is apparent from Det. Acton's testimony, which Judge Farrell credited, that the police removed Steven Marcus out of concern that he might assist defendant in resisting. Det. Acton testified, "We took him [Steven Marcus] into custody. He was handcuffed, and we secured him in an area of safety around from - in case there was any kind of escalation in anything occurred." Det. Acton's concerns were well-founded; Steven Marcus had denied defendant was present in the home, but Garcia told police that was false. Police reasonably could conclude that Steve Marcus was intent upon hindering Lamb's apprehension. See N.J.S.A. 2C:29-3a(1).
Under the facts of this case, it would be unreasonable to invalidate Karen Marcus's consent simply on the grounds that her husband vigorously objected to the police presence earlier in the evening. First, it is unclear that Steven Marcus would have continued to object under the circumstances that had developed by the time the police asked Karen Marcus for consent. At least according to Karen Marcus, she and her husband were both unaware that Lamb was in the house. Once Steven Marcus understood that he was there, he told his wife to look under the beds for him.
Second, Karen Marcus, as the remaining adult in the home, should not be denied her independent authority to manage and control a situation that would affect her and three small children for whom she was then responsible. The Eighth Circuit Court of Appeals recognized that a consenting co-occupant should be free to further her own interests in the absence of the objecting co-occupant.
The authorized co-tenant may give consent for several reasons, including . . . a desire to protect oneself or others (as here, Mrs. Hudspeth, in the self-interest of herself and her children, consented to the seizure of the home computer to prevent the placement of an armed, uniformed law enforcement officer in her home to guard the evidence while a search warrant was obtained).
[Hudspeth, supra, 518 F.3d at 961.]
Finally, we reject defendant's argument that Karen Marcus's consent was invalid because the police allegedly entered the home illegally to obtain it. We are not persuaded the police entry was unlawful. See State v. Speid, 255 N.J. Super. 398, 403 (Law Div. 1992) ("The police may, with probable cause, enter a home to secure it while a search warrant is obtained."). Nor was the consent the direct product of the police entry, as the police had been communicating with Karen Marcus, and obtaining her cooperation, for a significant period of time before requesting consent to search. See State v. Chapman, 332 N.J. Super. 452, 470 (App. Div. 2000) (sustaining consent search following allegedly illegal detention). See also State v. Williams, 192 N.J. 1, 15 (2007) (exclusionary rule will not apply where connection between police illegality and seizure of evidence is sufficiently attenuated, based on application of three factors: temporal proximity between illegal conduct and challenged evidence, presence of intervening circumstances, and flagrancy and purpose of police misconduct).
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