Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".
Tuesday, October 25, 2016
Hotel guest has reasonable expectation of privacy so police can't search at request of hotel manager
Hotel guest has reasonable expectation of privacy so police can't search at request of hotel manager
NOT FOR PUBLICATION
APPROVAL OF THE APPELLATE
COURT OF NEW JERSEY
STATE OF NEW JERSEY,
NATHAN N. SHAW, a/k/a DION SHAW,
a/k/a LEROY ANDERSON,
On appeal from Superior Court of New Jersey, Law Division,
Monmouth County, Indictment Nos. 12-03-0469 and 12-08-1442.
Margaret McLane, Assistant Deputy Public Defender, argued
the cause for appellant Nathan N. Shaw in A-2711-13 (Joseph E. Krakora, Public
Defender, attorney; Ms. McLane, of counsel and on the briefs).
Alyssa Aiello, Assistant Deputy Public Defender, argued the
cause for appellant Keon L. Bolden in A-4319-13 (Joseph E. Krakora, Public
Defender, attorney; Ms. Aiello, of counsel and on the briefs).
Jenny M. Hsu, Deputy Attorney General, argued the cause for
respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Hsu, of
counsel and on the brief).
Appellant Nathan Shaw filed a pro se supplemental brief.
Keon Bolden and Nathan Shaw pled guilty to drug offenses after the trial court
denied their motions to suppress evidence.
The two were charged after police discovered controlled dangerous
substances (CDS) in a motel room registered to the driver of a vehicle in which
they were passengers. As a result of the
motel room's search, the police stopped the vehicle and ultimately discovered
additional CDS inside. Prior to Bolden's
and Shaw's trials, the court conducted a suppression hearing and concluded that
the warrantless searches of the motel room and the vehicle were proper, and
that statements made by Shaw to the police while being detained by them were
their appeals, which we calendared back-to-back and consolidated for purposes
of this opinion, Bolden challenges the warrantless search of the motel
room. Shaw challenges the admission of a
statement he made to police, arguing it was the product of his unlawful arrest,
and the search of the vehicle, based upon the invalidity of the driver's
consent to the search and it not extending to a specific tote in which CDS was
discovered located in the back of the vehicle.
have considered defendants' arguments in light of the record and our review of
applicable legal principles. We affirm
in part, and vacate and remand in part the denial of their suppression motions.
facts developed at the suppression hearing based upon the testimony of the only
two witnesses who appeared — Neptune Township Police Officer Jason Rademacher
and Ocean County Sheriff's Officer Kurt Kroeper — are not contested, and can be
summarized as follows. The circumstances
leading to defendants' arrest began on Sunday, December 4, 2011, with the
vehicle's driver, Jasmine Hanson, complaining to an employee of a motel where
she was staying
that she had been bitten by bedbugs. In
response, the motel's owner entered the room while it was unoccupied, pulled
back the bed coverings, and discovered a plastic bag containing what he
suspected to be CDS. He then called the
responded to the call at 2:34 p.m., and the motel owner let him into the still
unoccupied room. The officer made no
attempt to secure a warrant prior to entering the room. According to Rademacher, he had no
familiarity with or understanding as to how to apply telephonically for a
Once inside, the
officer observed that the comforter on the bed had been pulled back, exposing a
plastic bag that contained "two separate bags of a rock-like substance
believed to be crack cocaine" and several "smaller cellophane[-]type
bags with stamps" containing what he believed to be heroin. Upon further observation of the room, the
officer also discovered a jar containing "what [he] believe[d] to be
imitation" marijuana, a scale, a glass beaker, and other drug paraphernalia.
contacted headquarters, and Sergeant William Kirchner responded to the
scene. The officers collected the evidence
and Rademacher ran a background check of Hanson,
which revealed an active warrant for her arrest and a traffic ticket recently issued
to her while driving a black 2012 Chevrolet Tahoe.
instructed Rademacher to transport the evidence to headquarters, return in an
unmarked vehicle, and park in the lot adjacent to the motel. Approximately twenty minutes after he
stationed himself in the parking lot, Rademacher observed the black Tahoe,
driven by Hanson, enter the lot and pull into a parking space. Once the vehicle was parked, the front
passenger "immediately exited." The officer left his vehicle,
"unholstered [his] duty weapon and kept it down at [his] side[,] and
ordered [the passenger] back in to the vehicle." He observed that, in addition to the driver
and front-seat passenger, there were two passengers in the back of the vehicle. Hanson rolled down her window and, in
response to the officer's request, provided her license, registration, and
rental agreement for the vehicle. Rademacher then waited until several other
officers arrived as backup on the scene.
Once the other
officers arrived, Rademacher asked Hanson to step out of the vehicle and
advised her that there was an active warrant for her arrest. She was then handcuffed, arrested, and placed
in the rear of a marked patrol car. At
that point, Rademacher "systematically removed each other occupant of the
vehicle and spoke to them individually and identified them."
identified one of the passengers in the rear of the vehicle as Shaw, and determined
there were no outstanding warrants for his arrest. Rademacher then "detained him" and
"secured [him] in the rear of . . . Kirchner's patrol vehicle."
individual located in the rear of the vehicle was later identified as Shakira
Dickerson, though she initially provided the police with a false name. After Dickerson eventually provided her
actual name, the police determined there was an outstanding warrant for her and
officers questioned Bolden, the front seat passenger. Bolden presented a driver's license, and, from
that information, the police determined there were no outstanding warrants for
his arrest. Bolden was then "detained,"
though not handcuffed, and placed in the back of another officer's patrol
Rademacher, once all of the vehicle's occupants were secured in police
vehicles, he asked Hanson if she would consent to a search of the vehicle. Hanson refused. In response, Rademacher and Kirchner "explained
that a K-9 dog would be brought to the location to perform an exterior sniff of
the vehicle." Although the officers
did not explain the reason for the canine sniff to Hanson, Rademacher testified
[i]t was being done because of the drugs that were
originally found in [the motel room], and . . . in addition to her and the rear
passenger of the vehicle having outstanding warrants for their arrest, lying
about their name, [he] believed that criminal activity was possibly afoot. . .
. Possibly the transportation of
Rademacher, the other occupants were secured in separate vehicles and, to his
knowledge, did not hear his conversation with Hanson. To Rademacher's knowledge, none of the
officers present engaged the Tahoe's occupants in conversation during the time
that elapsed between the occupants' detainment and the conclusion of the K-9
explained that "it was probably around half an hour" from the time he
requested a K-9 unit to the time it arrived because they had to "call
surrounding towns to ask whether or not there [was] a K-9 dog available"
and eventually request one from the Monmouth County Sheriff's Office. During that time, the occupants remained secured
in separate marked patrol cars. According
to the Monmouth County Sheriff's Office field report, the K-9 unit was
requested at 4:00 p.m. and arrived twenty minutes later, and the K-9 unit left
the scene at 5:20 p.m. Therefore, the
police detained the vehicle's occupants for at least eighty minutes.
arrived at the scene with his dog to perform the exterior sniff of the
vehicle. During the execution of the
sniff, an unidentified officer told Rademacher that Shaw "uttered to [the
unidentified] officer that he had marijuana inside of the vehicle,"
specifically, "on the floor in the rear passenger seat." As a result, Shaw was arrested and handcuffed.
When the police
advised Hanson of Shaw's statement, she gave consent for the officers to search
the vehicle. Rademacher provided Hanson
with a "standard . . . consent to search form," which he also read to
her. At 4:40 p.m., Hanson initialed almost
all of the advisements and signed the bottom of the form, which was witnessed
by Rademacher and Kirchner. However, she
did not initial the statement on the form that read "I have given this
permission voluntarily of my own free will, without coercion, fear, or
threat," which Rademacher "did not realize . . . until way after the
fact, and there[ was] nothing [he could] do."
Once Hanson signed
the form, Rademacher conducted a search of the vehicle's interior. Rademacher immediately searched the floor of
the rear passenger seat and found a brown bag containing suspected marijuana. In the center console cup holder, Rademacher found
a box of plastic sandwich bags and a container of what he "believe[d] to
be imitation marijuana." Returning his
attention to the back of the vehicle, Rademacher observed a large, green,
fabric tote bag standing up on the middle seat.
The bag was open, and inside were two black plastic bags containing what
appeared to be "decks"
of heroin bearing the same stamp as those found in the motel room. Specifically, the search yielded:
113 glassine bags containing suspected heroin, 24 stamped
Limit 50 in red ink, 5 stamped Ride It in black ink, 84 stamped with pink dots,
[a] Ziploc bag containing a rock-like substance believed to be crack cocaine,
and a plastic twist bag containing a rock-like substance believed to be crack
cocaine from the green and white bag on the rear passenger seat of the vehicle.
the CDS, the police secured the vehicle and transported its four occupants
individually to police headquarters, as "[t]hey were all under arrest for
the items found constructively within the vehicle."
Rademacher's and Kroeper's testimony, the trial court entered orders denying
Shaw's and Bolden's motions to suppress, and issued a written decision
explaining its reasons for doing so.
its decision, the court began by reciting the facts it found from the officers'
testimony and the evidence admitted during the hearing, and determined that
both defendants had standing to challenge the search of the motel room. However, relying on our holding in State
v. Premone, 348 N.J. Super. 505 (App. Div. 2002), the court
concluded that the search was lawful because the motel owner's entry into
Hanson's room was a "private action" and therefore fell beyond the
protections of the federal and state constitutions.
search of Hanson's vehicle, the court found the police were justified in
stopping her based on their knowledge of the outstanding warrant for her
arrest. As to the other occupants, the
court cited State v. Carty, 170 N.J. 632, 640 (2002), and
concluded that "the inquiries of the passengers did not infringe upon any
of [their] constitutional rights[, as t]he police were entitled to ask
the . . . passengers to be identified and [to] check for
warrants." The court specifically
rejected the contention that their detention became a de facto arrest
"because the officers' conduct was not more intrusive than necessary for
an investigative stop." Citing Carty,
the court concluded that the continued detention of the passengers after
background checks were completed was justified because the police had "a
reasonable and articulable basis [to believe] that criminal activity was afoot
. . . based on the totality of the circumstances[,] including the motel room
filled with suspected narcotics, the out-of-state driver's license, and the
brief duration of the [vehicle's] rental agreement." Although the court initially found that the
occupants were removed from the vehicle and placed in police vehicles, it
stated that Kroeper arrived before they were removed, and any "delay [in
their detention] was minimal."
Thus, the court concluded, "the investigative stop did not exceed
the scope of a permissible Terry
the court addressed the issue of Hanson's consent to the vehicle's search. The court reviewed the applicable law
governing consent searches, quoted State v. Johnson, 68 N.J. 349,
354 (1975), and noted "[t]he State ha[d] the 'burden of showing that the
consent was voluntary, an essential element of which is knowledge of the right
to refuse consent.'" Relying on State
v. Chapman, 332 N.J. Super. 452, 467 (App. Div. 2000), the court
concluded the State proved Hanson gave her consent to search the vehicle by
signing the consent form and consenting to the search of "all of [its]
contents," including the tote bag, especially as there was nothing to
identify the bag as belonging to anyone else.
the court entered its orders denying the suppression motions, both Bolden and
Shaw pled guilty. Shaw pled guilty to
one count of third-degree possession of CDS with intent to distribute, N.J.S.A.
2C:35-5(b)(3), in exchange for dismissal of the other charges and a recommended
sentence of five years imprisonment with a three-year period of parole
ineligibility. Bolden pled guilty to one
count of first-degree possession of CDS, N.J.S.A. 2C:35-5(b)(1), under
Indictment No. 12-03-0469, and one count of possession of CDS with intent
distribute within five hundred feet of certain public property, N.J.S.A.
2C:35-7.1, under Indictment No. 12-08-1442, in exchange for the dismissal of
the remaining charges and a recommended aggregate sentence of ten years imprisonment,
subject to a five-year period of parole ineligibility. The two were later sentenced in accordance
with their plea agreements. These
appeal Shaw argues:
THE DEFENDANT'S STATEMENT MUST BE SUPPRESSED AS THE FRUIT
OF HIS UNLAWFUL ARREST.
THE DRIVER'S CONSENT TO SEARCH WAS INVALID AS THE FRUIT OF
DEFENDANT'S UNLAWFUL ARREST AND BECAUSE IT WAS NOT VOLUNTARY. IN THE ALTERNATIVE, THE DRIVER COULD NOT
CONSENT TO THE SEARCH OF THE PASSENGER'S BAG.
In a pro se supplemental brief,
Shaw also argues:
[SHAW'S] ARREST WAS UNLAWFUL ABSENT FINDINGS OF PROBABLE
THE TRIAL COURT ERRED IN ITS DECISION BY DENYING
DEFENDANT'S MOTION TO SUPPRESS BECAUSE OF HOTEL MANAGER'S "LACK OF
KNOWLEDGE OF THE INTRICACIES OF THE FOURTH AMENDMENT."
presents the following argument:
OFFICER RADEMACHER'S WARRANTLESS ENTRY INTO [THE MOTEL
ROOM] VIOLATED THE FEDERAL AND STATE CONSTITUTIONS. THEREFORE, THE TRIAL COURT'S ORDER DENYING
BOLDEN'S MOTION TO SUPPRESS EVIDENCE MUST BE REVERSED AND HIS CONVICTION UNDER
INDICTMENT NO. 12-03-0469 VACATED.
Our review of the
denial of a suppression motion is limited.
SeeState v. Handy, 206 N.J. 39, 44 (2011). A trial court's findings are entitled to
deference if supported by sufficient credible evidence. SeeState v. Scriven, __ N.J.
__, __ (2016) (slip op. at 12-13). We
"must uphold the factual findings underlying the trial court's decision so
long as those findings are supported by sufficient credible evidence in the
record." State v. Elders,
192 N.J. 224, 243 (2007) (citation omitted). We will "not disturb the trial court's
findings merely because '[we] might have reached a different conclusion' . . . or
because 'the trial court decided all evidence or inference conflicts in favor
of one side' in a close case." Id.
at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). It is only where we are "thoroughly
satisfied that the finding is clearly a mistaken one and so plainly unwarranted
that the interests of justice demand intervention and correction [that we will]
appraise the record as if [we] were deciding the matter at inception and make [our]
own findings and conclusions." Johnson,
supra, 42 N.J. at 162.
Issues of law,
however, are reviewed de novo. State
v. Gandhi, 201 N.J. 161, 176 (2010).
The question of whether the trial court's judicially-found facts warrant
suppression is purely legal, and the trial court's decision is subject to
plenary review. Handy, supra,
206 N.J. at 45.
We turn our attention
first to Bolden's challenge to the search of Hanson's motel room. He asserts that the trial court improperly
denied the motion to suppress and erred in (1) failing to distinguish that he had
a reasonable expectation of privacy; (2) applying the private search or
third-party intervention doctrine to the instant matter; and (3) determining
that the warrantless entry and search of the hotel room by the officer was
permissible under the aforementioned exception.
Both the United States and New Jersey constitutions
guarantee "[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const.
art. I, ¶ 7; see alsoScriven, supra, __ N.J. at __
(slip op. at 12). However, a defendant
seeking to invoke the protections afforded by these constitutional provisions
must first "show that a reasonable or legitimate expectation of privacy
was trammeled by government authorities."
State v. Evers, 175 N.J. 355, 369 (2003); see alsoState
v. Taylor, 440 N.J. Super. 515, 522 (App. Div. 2015) ("Absent a
reasonable expectation of privacy in the place or thing searched, an individual
is not entitled to protection under either the Fourth Amendment or Article I,
Paragraph 7 of the New Jersey Constitution."). "Unlike the federal test,[]
the New Jersey constitutional standard does not require the defendant to prove
a subjective expectation of privacy. . . .
Instead, Article I, Paragraph 7 . . . 'requires only that an expectation
of privacy be reasonable.'" State
v.Hinton, 216 N.J. 211, 236 (2013) (quoting State v.
Hempele, 120 N.J. 182, 200 (1990)).
It is well-established that "a person can have a
legally sufficient interest in a place other than his own home[, such] that the
Fourth Amendment protects him from government intrusion into that place." State v. Stott, 171 N.J. 343, 357
(2002) (quoting Rakas v. Illinois, 439 U.S. 128, 142, 99 S.
Ct. 421, 430, 58 L. Ed. 2d 387, 401 (1978)); see alsoState
v. Rose, 357 N.J. Super. 100, 103 (App. Div.), certif. denied,
176 N.J. 429 (2003); State v. Alvarez, 238 N.J. Super.
560, 571 (App. Div. 1990). Applying that
principle, the Court has recognized that hotel guests have a reasonable
expectation of privacy in their rooms, Hoffa v. United States, 385 U.S.
293, 301, 87 S. Ct. 408, 413, 17 L. Ed. 2d 374, 381 (1966); see
alsoState v. Hathaway, 222 N.J. 453, 468 (2015); Alvarez,
supra, 238 N.J. Super. at 571, and that "overnight guests
have the same or similar expectation of privacy in the homes of their hosts as
do the hosts or owners." Stott,
supra, 171 N.J. at 357 (citing Minnesota v. Olson, 495 U.S.
91, 98, 110 S. Ct. 1684, 1689, 109 L. Ed. 2d 85, 94 (1990)). Therefore, "a warrantless search [by
police] of a suspect's [hotel] room is unreasonable and improper unless it falls
within the scope of an exception to the general rule requiring the issuance of
a search warrant." Rose, supra,
357 N.J. Super. at 103; see alsoHathaway, supra, 222
N.J. at 468.
As conceded by the State at oral argument in this case,
the "third-party intervention" or "private search" doctrine
did not create an exception to the requirement that law enforcement obtain a
warrant before searching a guest's hotel room, absent exigent
supra, 221 N.J. at 460 ("Residents . . . run the risk that
any private actor they invite into their home may tell the police what they
have seen. And the police, in turn, can
use that information to apply for a search warrant."). Rather than relying on the third-party
intervention doctrine, the State argues that there was no evidence adduced at
the suppression hearing establishing that any person, other than Hanson, had a
reasonable expectation of privacy in the motel room or the items seized
Although the trial court concluded that Bolden had
standing to challenge the search of the motel room, having determined the
third-party intervention doctrine justified the police search and seizure, it
never addressed whether he had a reasonable expectation of privacy in the room. As we have previously explained, the issue of
standing is distinct from whether a defendant maintained a reasonable
expectation of privacy in the object of a search. We stated:
In New Jersey, "a criminal
defendant [has standing] to bring a motion to suppress evidence obtained in an
unlawful search and seizure if he has a proprietary, possessory or
participatory interest in either the place searched or the property
seized." [State v. Alston,
88 N.J. 211, 228 (1981)]; accord [State v. Brown, 216 N.J.
508, 548-49 (2014)]. "[S]tanding to
seek suppression of evidence" is a "separate issue" from
"the existence of a reasonable expectation of privacy," which
pertains to the merits of the police action.
[Hinton, supra, 216 N.J. at 235]. Defendant's automatic standing to contest the
constitutional validity of the seizure "does not equate to a finding that
he . . . has a substantive right of privacy in the place
searched that mandates the grant of that motion." Ibid.
"[A]lthough we do not use a reasonable expectation of privacy analysis
for standing purposes in criminal cases, we do apply that analysis to determine
whether a person has a substantive right of privacy in a place searched or an
item seized." [Id. at 234]
(quoting [State v. Johnson, 193 N.J. 528, 547 (2008)]). "[T]he objective reasonableness of the
defendant's expectation of privacy in that property, for purposes of Article I,
Paragraph 7, turns in large part on his or her legal right to occupy the
property at issue." [Id. at
[State v. Randolph, 441 N.J. Super. 533,
548-49 (App. Div. 2015) (first, fourth, sixth, and ninth alterations in
original), certif. granted, 224 N.J. 529 (2016).]
The burden of proof to establish a reasonable expectation of
privacy is on the defendant seeking to suppress evidence. SeeHinton, supra, 216 N.J.
Applying that standard to the evidence adduced at the
suppression hearing, we conclude the trial court misapplied the third-party
intervention doctrine and failed to determine whether Bolden maintained a
reasonable expectation of privacy in the room registered to Hanson. Having said that, we recognize there was no
proof presented establishing that Bolden had any connection to the motel room. The evidence presented established only that
Hanson was the registered guest and was staying in the room, as demonstrated by
the motel's registration records and her complaint to the motel employee about
being bitten by bedbugs. Nothing
indicated that the motel room was also Bolden's residence, temporarily or
However, because the inapplicability of the third-party
intervention doctrine was not clear before Wright, which was decided
after the suppression hearing, we vacate the denial of Bolden's motion to
suppress and remand the matter to the trial court for a new hearing at which
Bolden must make a threshold showing that he had a reasonable expectation of
privacy in the motel room. If the trial court determines that he did,
Bolden is to be afforded an opportunity to withdraw his plea, and, if he does,
the evidence seized by law enforcement from the motel room must be suppressed
We turn our attention to Shaw's arguments. On appeal, he asserts that the trial court
improperly denied the motion to suppress and erred in: (1) finding his detention
and subsequent arrest lawful; (2) concluding that the statement uttered by Shaw
was not a result of his unlawful seizure; and (3) failing to conclude that
Hanson's consent to the search was neither involuntary nor "fruit of the
poisonous tree." We address each
argument in turn.
Shaw first contends that his continued detention by
Rademacher was a seizure that was not supported by reasonable suspicion or
probable cause, and "amounted to an arrest because it was more than
minimally intrusive." He argues
that his detention was unlawful and violated the Fourth Amendment because the
stop was an "unreasonable" seizure that exceeded the measures
dictated by Terry. We agree.
"Temporary detention during an investigatory traffic
stop, even if brief and limited, constitutes a seizure of persons." State v. Sloane, 193 N.J. 423,
430 (2008) (citation omitted). While the
"warrantless seizure of a person is 'presumptively invalid as contrary to
the United States and the New Jersey Constitutions,'" State v. Coles,
218 N.J. 322, 342 (2014) (quoting State v. Mann, 203 N.J.
328, 337 (2010)), there remains a critical "balance to be struck between
individual freedom from police interference and the legitimate and reasonable
needs of law enforcement." Id.
at 343. A reviewing court must determine
whether the State has met its burden to establish by a preponderance of the
evidence that the warrantless seizure of an individual was justified in light
of the totality of the circumstances. Mann,
supra, 203 N.J. at 337-38.
The Terry exception to the warrant requirement permits
a police officer to detain an individual for a brief period and to pat him or
her down for the officer's safety if that stop is "based on 'specific and
articulable facts which, taken together with rational inferences from those
facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J.
117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S.
Ct. at 1880, 20 L. Ed. 2d at 906); see alsoState v. Williams,
192 N.J. 1, 9 (2007) (stating a Terry pat down is
constitutionally permissible when the police officer believes the suspect
"may be armed and presently dangerous" (quoting Terry, supra,
392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at
[A]n investigatory detention must, first, be based upon
sufficient evidence to demonstrate that a particular crime has occurred, that
the crime is unsolved and that it is under active investigation. Second, the police must demonstrate a
reasonable and well-grounded basis to believe that the individual sought as the
subject of the investigative detention may have committed the crime under
investigation. Additionally, it must be
shown that the results of the detention will significantly advance the criminal
investigation and will serve to determine whether or not the suspect probably
committed the crime. Further, it must
also appear that these investigative results cannot otherwise practicably be
[State v. Hall, 93 N.J. 552, 562, cert.
denied, 464 U.S. 1008, 104 S. Ct. 526, 78 L. Ed. 2d
When reviewing whether the State has shown a valid basis for
an investigative detention, consideration of the totality of the circumstances
requires we "give weight to 'the officer's knowledge and experience' as
well as 'rational inferences that could be drawn from the facts objectively and
reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154 N.J.
272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11
(1997)). "The fact that purely
innocent connotations can be ascribed to a person's actions does not mean that
an officer cannot base a finding of reasonable suspicion on those actions as
long as 'a reasonable person would find the actions are consistent with
guilt.'" Id. at 279-80
(quoting Arthur, supra, 149 N.J. at 11). "However, an officer's hunch or
subjective good faith — even if correct in the end — cannot justify an
investigatory stop or detention." State
v. Shaw, 213 N.J. 398, 411 (2012).
Whether police conduct has violated constitutional
protections is measured by its "reasonableness." Hathaway, supra, 222 N.J.
at 476 (quoting State v. Judge, 275 N.J. Super. 194, 200 (App.
Div. 1994)). The reasonableness of
police conduct is assessed with regard to circumstances facing the officers,
who must make split second decisions in a fluid situation. SeeState v. Bruzzese, 94 N.J.
210, 228 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct.
1295, 79 L. Ed. 2d 695 (1984).
Such encounters are justified only if the evidence, when
interpreted in an objectively reasonable manner, shows that the encounter was
preceded by activity that would lead a reasonable police officer to have an
articulable suspicion that criminal activity had occurred or would shortly occur. No mathematical formula exists for deciding
whether the totality of circumstances provided the officer with an articulable
or particularized suspicion that the individual in question was involved in
criminal activity. Such a determination
can be made only through a sensitive appraisal of the circumstances in each
[State v. Davis, 104 N.J. 490, 505 (1986).]
"A court must first consider the officer's objective
observations." Id. at 501. This "analysis proceeds with various
objective observations, information from police reports, if such are available,
and consideration of the modes or patterns of operation of certain kinds of
lawbreakers." United States v.
Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695, 66 L. Ed.
2d 621, 629 (1981). "Second, a
court must determine whether the evidence 'raise[s] a suspicion that the
particular individual being stopped is engaged in wrongdoing.'" Davis, supra, 104 N.J. at
501 (alteration in original) (quoting Cortez, supra, 449 U.S.
at 418, 101 S. Ct. at 695, 66 L. Ed. 2d at 629). In considering these factors, courts must
take "a realistic approach to reviewing police behavior in the context of
the ever-increasing violence in society."
State v. Valentine, 134 N.J. 536, 545 (1994). The focus must be narrow and fixed on the
defendant, "the officer's observations, in view of the officer's
experience and knowledge, taken together with rational inferences drawn from
those facts," to determine whether they "warrant a limited intrusion
upon the individual's freedom." State v. Stovall, 170 N.J.
346, 361 (2002) (quoting State v.Caldwell, 158 N.J. 452,
Courts have identified various factors that may help support
a "reasonable suspicion": presence in a high crime area, seeState
v. Richards, 351 N.J. Super. 289, 307 (App. Div. 2002); nervousness
and implausible responses coupled with other factors constituting suspicious
behavior, seeMann, supra, 203 N.J. at 339-340; flight
following a good faith police command to stop, seeWilliams, supra,
192 N.J. at 10-13; unresponsiveness to police questions or commands,
though only when coupled with other factors, seeShaw, supra,
213 N.J. at 410; characteristics contained in "drug courier
profiles," seeStovall, supra, 170 N.J. at
358-360; and warrants, seeCaldwell, supra, 158 N.J.
at 469. Further, while "an
officer's knowledge of a suspect's criminal history alone is not sufficient to
justify the initial stop of a suspect or . . . a frisk of a suspect once
stopped, [that knowledge] in combination with other factors may lead to a
reasonable suspicion that the suspect is armed and dangerous." Valentine, supra, 134 N.J.
at 547; see alsoState v. Privott, 203 N.J. 16, 28-29
However, even with probable cause to arrest or search one
suspect, that suspect's presence "do[es] not confer broad authority on the
police to subject those in the vicinity to the indignity of searches because
they happen to be there." State
v. Rivera, 276 N.J. Super. 346, 351-52 (App. Div. 1994) (holding
that, while "the police had an adequate basis upon which to stop [a
suspect], to question him, and to subject him to a Terry search, that
justification with respect to the [suspect] did not ripen into probable cause in
respect of the others present").
The requirement for "probable cause particularized with respect to [one]
person . . . cannot be undercut or avoided by simply pointing to
the fact that coincidentally there exists probable cause to search or seize
another" person in the suspect's vicinity. Id. at 352 (quoting Ybarra v. Illinois,
444 U.S. 85, 91, 100 S. Ct. 338, 342, 62 L. Ed. 2d 238,
If a detention is initially justified, the question is, at
what point, if ever, does it transform into a warrantless arrest. "[T]here is [no] litmus-paper test
for . . . determining when a seizure exceeds the bounds of an
investigative stop." State v. Dickey,
152 N.J. 468, 476 (1998) (alterations in original) (quoting Florida
v. Royer, 460 U.S. 491, 506, 103 S. Ct. 1319, 1329, 75 L.
Ed. 2d 229, 242 (1983) (plurality opinion)). "Even a stop that lasts no longer than
necessary to complete the investigation for which the stop was made may amount
to an illegal arrest if the stop is more than 'minimally intrusive.'" Id. at 478. Simply put, an investigative stop can cross
the boundary and become a de facto arrest, thereby requiring the support of
probable cause. Ibid. "[W]hen the duration of the detention is
at issue, the proper question is 'whether the police diligently pursued a means
of investigation that was likely to confirm or dispel their suspicions quickly,
during which time it was necessary to detain the defendant.'" Coles,
supra, 218 N.J. at 344 (quoting Dickey, supra, 152 N.J.
Although there are no "bright line" tests to
guide us, courts have identified several factors to aid in the analysis.
Time is an important factor in distinguishing
between an investigative stop and a de facto arrest: There is "no rigid time limitation on Terry
stops," United States v. Sharpe, 470 U.S. 675, 685, 105 S.
Ct. 1568, 1575, 84 L. Ed. 2d 605[, 615] (1985), but a stop may be
too long if it involves "delay unnecessary to the legitimate investigation
of the law enforcement officers," Id. at 687, 105 S. Ct. at
1576[, 84 L. Ed. 2d at 616].
[Dickey, supra, 152 N.J. at 478-79
(alterations in original) (quoting United
States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994), cert. denied, 514 U.S. 1113, 115 S. Ct.
1970, 131 L. Ed. 2d 859 (1995)).]
"[T]he brevity of the invasion of the individual's
Fourth Amendment interests is an important factor in determining whether the
seizure is so minimally intrusive as to be justifiable on reasonable
suspicion." United States v.
Place, 462 U.S. 696, 709, 103 S. Ct. 2637, 2645, 77 L. Ed.
2d 110, 122 (1983). Other factors to be
considered are the extent to which those who have been detained are placed in
fear for their safety and the manner in which they are detained. Dickey, supra, 152 N.J.
at 479. For example, courts have held
that "transporting a suspect to another location or isolating him from
others can create an arrest." Ibid.
(quoting Bloomfield, supra, 40 F.3d at 917).
Guided by these principles, we examine the facts and
circumstances presented in this case.
Here, the trial court did not make any findings as to Shaw other than
that he was in a car with Hanson, who had an outstanding warrant for her arrest
and was the registered guest of a motel room where CDS was discovered. There was no finding by the court, and no
testimony by Rademacher, that Shaw behaved in any way warranting his extended
detention. While the stop of Hanson's
vehicle was justified by the warrant for her arrest and the information
provided by the motel owner, as compared to the officer's search of the motel
room, there was no reason to continue to detain Shaw once it was established
that there were no warrants for his arrest and without any reason to believe he
was connected to the motel room. There
was no "particularized and objective basis for suspecting [Shaw] of criminal
activity" to warrant his continued detention. Caldwell, supra, 158 N.J.
at 464. Despite that lack of a basis,
Shaw, like the others in the car, were confronted by a police officer who
unholstered his weapon, ordered Shaw into the back of a vehicle after
determining there was no reason to hold him, and left him there for at least
thirty-five minutes — and possibly upwards of an hour — in order to secure a
K-9 from somewhere so the police could search Hanson's vehicle. It was only after Shaw was left in isolation
for an extended period that he told an unidentified officer that he had
marijuana in the Tahoe.
The fact that Shaw was unlawfully arrested by the time he
made his statement does not necessarily require that it should have been
suppressed. "[E]vidence is not
subject to exclusion 'simply because it would not have come to light but for
the illegal actions of the police.'"
State v. Casimono, 250 N.J. Super. 173, 182 (App. Div.
1991) (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.
Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963)), certif. denied,
127 N.J. 558 (1992). For example,
"[s]tatements following an illegal arrest must be excluded from evidence
only if they are causally related to the invasion of the suspect's
rights." State v. Barry, 86 N.J.
80, 89, cert. denied, 454 U.S. 1017, 102 S. Ct. 553, 70 L.
Ed. 2d 415 (1981). Thus, the
determination of whether a confession is admissible is fact-sensitive. State v. Worlock, 117 N.J. 596,
If causally related to an illegal arrest, a defendant's
statement must be suppressed as the "fruit of the poisonous
tree." That doctrine provides that
evidence obtained directly or indirectly from a violation of a defendant's
federal or state constitutional rights must be excluded from evidence unless
the State can establish that it obtained the evidence from a source independent
of the illegal conduct. State v.
Johnson, 118 N.J. 639, 651-53 (1990). "[T]he issue is whether the [discovery
of the evidence was] the product of the 'exploitation' of the unlawful stop and
detention or of a 'means sufficiently distinguishable' from the constitutional
violation such that the 'taint' of the violation was 'purged.'" Shaw, supra, 213 N.J. at
414 (quoting Hudson v. Michigan,
547 U.S. 586, 592, 126 S. Ct. 2159, 2164, 165 L. Ed. 2d
56, 65 (2006)). "[T]he exclusionary
rule will not apply when the connection between the unconstitutional police
action and the evidence becomes 'so attenuated as to dissipate the taint' from
the unlawful conduct." State v.
Badessa, 185 N.J. 303, 311 (2005) (quoting Murray v. United
States, 487 U.S. 533, 537, 108 S. Ct. 2529, 2532, 101 L. Ed.
2d 472, 480 (1988)). Under both federal
and state law, "the critical determination is whether the authorities have
obtained the evidence by means that are sufficiently independent to dissipate
the taint of their illegal conduct."
Johnson, supra, 118 N.J. at 653.
In evaluating whether evidence is sufficiently attenuated
from the taint of a constitutional violation, we look to three factors:
"(1) the temporal proximity between the illegal conduct and the challenged
evidence; (2) the presence of intervening circumstances; and (3) the flagrancy
and purpose of the police misconduct."
Ibid.; accordBrown v. Illinois, 422 U.S.
590, 603-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 427
(1975); see alsoShaw, supra, 213 N.J. at 415.
The temporal proximity factor is "the least
determinative" and often most ambiguous of the test. Worlock, supra, 117 N.J. at
622-23. This is so because both temporal
proximity and the lack thereof between the unlawful act and the police
obtaining the evidence may weigh in favor of suppression or admission. Ibid.
Although a confession given shortly after an arrest may
result from pressures generated by the shock of detention, it may also result
from considerations unrelated to the arrest.
. . . A long detention may cause
a defendant to forget the shock of the initial arrest or it may compound the
taint of the confession.
[Id. at 623.]
"The conditions of detention can be as important as the
temporal proximity of the confession and arrest. A congenial atmosphere can neutralize the
assumption that a confession given after a short period of detention is the
product of an illegal arrest." Ibid.
The second factor,
intervening events, "can be the most important factor in determining
whether a confession is tainted" because intervening events are objective
indications of whether the causal connection between the unlawful arrest and
the evidence has been broken. Id.
at 623-24. Yet, identifying intervening
circumstances is sometimes difficult. Id.
at 623. "In the face of egregious police conduct, the State should show
some demonstrably effective break in the chain of events leading from the
illegal arrest to the [evidence], such as actual consultation with counsel or
the accused's presentation before a magistrate for a determination of probable
cause." Johnson, supra,
118 N.J. at 656 (alteration in original) (quoting Worlock, supra,
117 N.J. at 623-24).
circumstances that constitute a purge of the illegal taint have been associated
with a defendant's flight from police, seeState v. Seymour, 289 N.J.
Super. 80, 89 (App. Div. 1996), and resisting arrest, seeCasimono,
supra, 250 N.J. Super. at 184-88.
For example, where the police attempt a pat down based on less than the constitutionally-required
suspicion, the defendant's physical resistance is an intervening act that
"marks 'the point at which the detrimental consequences of illegal police
action become so attenuated that the deterrent effect of the exclusionary rule
no longer justifies its cost.'" Id.
at 185 (quoting United States v. Leon, 468 U.S. 897, 911, 104 S.
Ct. 3405, 3414, 82 L. Ed. 2d 677, 691 (1984)); see also Kevin
G. Byrnes, Arrest, Search & Seizure 875-76 (2016). "The point to all of those cases is that
the law should deter and give no incentive to suspects who would
endanger the police and themselves by not submitting to official
authority." Williams, supra,
192 N.J. at 17 (emphasis in original).
Against the first
two factors, the court considers the final factor, the flagrancy and purpose of
the police misconduct, which "is 'particularly' relevant to determining
whether a confession is the 'fruit' of [an unlawful] arrest." Worlock, supra, 117 N.J.
at 624. The more egregious the police
conduct, the more likely a court will grant a motion to suppress. Seeibid.
the factors applicable to Shaw's circumstances, we conclude that his statement
to police should have been suppressed.
Shaw and the other occupants were initially confronted by Rademacher,
with his weapon unholstered, and Shaw was then secured for an extended period
of time in the back of a police vehicle without any articulable suspicion that
he, as compared to Hanson, was involved in any criminal activity. There was no question that he was not free to
leave the car even though he was not handcuffed until he made his statement,
which occurred approximately thirty minutes after he was removed from Hanson's
vehicle. During that time, he was not
questioned by police and, evidently, was unaware that a K-9 sniff was about to
occur. At all times, Shaw followed the
officer's requests and directions and did nothing to cause his continued
detention. There were no intervening
events between the exploitation of Shaw's right to be free from detention for
an extended period and his making the statement to the unidentified police
disagree with Shaw, however, that because he gave his statement while in
unlawful detention, the evidence seized from the vehicle was fruit of the
poisonous tree that must be excluded.
According to Shaw, but for his confession, Hanson would not have
consented to the search. We find no
merit to that argument. Although we find
Hanson's consent was involuntary for other reasons, we also find there was no
evidence that Shaw maintained a protected interest in the evidence seized from
the tote bag as he never claimed ownership of the bag or its contents.
As with all
exceptions to the warrant requirement, the onus is on the State to demonstrate
that the consent search exception applies. SeeState v. Cushing, __ N.J.
__, __ (2016) (slip op. at 12-14); Johnson, supra, 68 N.J.
at 354. "[W]hether a consent to a
search was in fact 'voluntary' or was the product of duress or coercion,
express or implied, is a question of fact to be determined from the totality of
all the circumstances." Schneckloth
v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48, 36
L. Ed. 2d 854, 862-63 (1973).
articulated in our case law, to determine whether a person's consent was
voluntarily given or coerced, the proper analytical framework is whether a
person has knowingly waived his right to refuse to consent to the search."
State v. Domicz, 188 N.J.
285, 308 (2006). Under our State
Constitution, consent to search is invalid unless the consenting party was
aware of the right to withhold consent. SeeState v. Todd, 355 N.J. Super. 132, 139 (App. Div. 2002).
analysis of consent is a fact-sensitive inquiry, the Court has identified
factors to be considered in determining voluntariness or coercion. State v. King, 44 N.J. 346,
352-53 (1965). The factors that tend to show voluntariness of a consent
include: "(1) that consent was given where the accused had reason to
believe that the police would find no contraband; (2) that the defendant
admitted his [or her] guilt before consent; [and] (3) that the defendant affirmatively
assisted the police officers." Id.
at 353 (citations omitted).
The factors that
tend to show that consent was coerced include:
(1) that consent was made by an individual already
arrested; (2) that consent was obtained despite a denial of guilt; (3) that consent
was obtained only after the accused had refused initial requests for consent to
search; (4) that consent was given where the subsequent search resulted in a
seizure of contraband which the accused must have known would be discovered;
[and] (5) that consent was given while the defendant was handcuffed.
[Id. at 352-53 (citations omitted).]
Here, the trial
court relied only upon State v. Chapman, 332 N.J. Super. 452
(App. Div. 2000),
and Hanson's signing of the consent form to determine that her consent was
voluntary. The court did so without any
analysis of the factors that should be considered by a court making that
determination. Had the court done so, it
would have found that Hanson's situation met the criteria for almost all of the
factors tending to show her consent was involuntary: she was under arrest; she
had initially refused to give consent; considering where the CDS was ultimately
discovered in the vehicle, she must have known it would be discovered; and she
was handcuffed. Under these circumstances,
evidence of the signing and (incomplete) initialing of the consent form was not
enough to demonstrate the voluntariness of Hanson's consent.
that Hanson's consent was not voluntary, we consider whether Shaw had a protected
interest in the tote bag containing the CDS he was charged with
possessing. Here, there was no evidence
that Shaw or anyone else in the vehicle claimed ownership of the tote bag or
objected to its search. As there was no
evidence that Shaw owned the tote, he did not have a protected privacy interest
in its contents. SeeState v.
Suazo, 133 N.J. 315, 321-22 (1993); see alsoState v.
Maristany, 133 N.J. 299, 306-07 (1993). "Absent a reasonable expectation of
privacy in the place or thing searched, [Shaw was] not entitled to protection
under either the Fourth Amendment or Article I, Paragraph 7 of the New Jersey
Constitution," Taylor, supra, 440 N.J. Super. at 522,
and the unlawful search of Hanson's vehicle did not warrant the suppression of
the bag or its contents in Shaw's case.
although we find that the officer's warrantless search of the motel room was
illegal, the record does not permit us to determine whether Bolden maintained a
protected privacy interest in that room.
Accordingly, we vacate the denial of Bolden's suppression motion
regarding the items seized from the motel room and remand to afford Bolden an
opportunity to establish he maintained a protected privacy interest in the
motel room at a new suppression hearing.
If he meets his burden of proof, his suppression motion must be granted
and he must be afforded an opportunity to withdraw his previously entered
guilty plea. R. 3:9-3(f).
As to Shaw, we
affirm the denial of his motion to suppress the contents of the tote bag found
in Hanson's vehicle, but reverse the denial of his motion to suppress his
statement made to police while in their custody. As a result, Shaw may seek to withdraw his
plea and go to trial or accept his earlier conviction and sentence. Seeibid.; see alsoState
v. Cummings, 184 N.J. 84, 100 (2005).
Affirmed in part,
reversed and remanded in part. We do not
Hanson checked in on December 2, 2011, at
3:06 a.m. and was to check out on December 9.
Rademacher learned Hanson's identity upon
his arrival at the motel, when the owner provided him with a copy of the room
registration information, which included a copy of her driver's license.
The rental agreement listed Jasmine Hanson
as the only renter; no other names were present on the document.
The K-9 was not used for the search and was
secured in one of the patrol cars.
A "deck" of heroin is understood
to be between one and fifteen grams, packaged in glassine bags.
A Monmouth County Grand Jury later indicted
and charged the vehicle's occupants under Indictment No. 12-03-0469 with
third-degree possession of CDS (heroin), N.J.S.A. 2C:35-10(a)(1) (count
one); two counts of third-degree possession of CDS (cocaine), N.J.S.A.
2C:35-10(a)(1) (count two and three); first-degree possession of CDS (cocaine)
with intent to distribute, N.J.S.A. 2C:35-5(b)(1) (count four);
third-degree possession of CDS (heroin), N.J.S.A. 2C:35-10(a)(1) (count
five); and third-degree possession of CDS (heroin) with intent to distribute, N.J.S.A.
2C:35-5(b)(3) (count six).
In connection with an
unrelated incident, Bolden was later charged under Monmouth County Indictment
No. 12-08-1442 with third-degree possession of CDS (cocaine), N.J.S.A.
2C:35-10(a)(1) (count one); third-degree possession of CDS (cocaine) with
intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count two); and
third-degree possession of CDS (cocaine) with intent to distribute while on or
within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three).
Terry v. Ohio, 392 U.S. 1, 88 S.
Ct. 1868, 20 L. Ed. 2d 889, (1968).
To be entitled to protection under the
Fourth Amendment, a defendant "must establish that he had both 'an actual
(subjective) expectation of privacy' [in the object of the challenged
search,] and 'one that society is prepared to recognize as reasonable.'"Evers, supra, 175 N.J.
at 369 (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.
Ct. 507, 516, 19 L. Ed. 2d 576, 588 (1967) (Harlan, J.,
The doctrine originally addressed
situations like the following:Private
actors search an item, discover contraband, and notify law enforcement officers
or present the item to them.The police,
in turn, replicate the search without first getting a warrant.See, e.g., United States v.
Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d
85 (1984).Because the original search
is carried out by private actors, it does not implicate the Fourth
Amendment.And if the officers' search
of the item does not exceed the scope of the private search, the police have
not invaded a defendant's protected privacy interest and do not need a warrant.
[State v. Wright, 221 N.J. 456, 459 (2015).]
Bolden asserts that evidence presented to
the grand jury that was considered in an earlier motion to dismiss the
indictment included video tapes of his staying in the motel room.However, as this evidence was not produced at
the suppression hearing, we cannot consider it in our review.SeeRandolph, supra, 441
N.J. Super. at 543 n.1 (citing State v. Robinson, 200 N.J.
1, 15 (2009)).
As noted, the court originally found that
the occupants had been removed from the vehicle prior to the K-9 team's
arrival, but then stated that some occupants remained in the vehicle at that
time.We find no support for that
conclusion.In any event, the court made
no specific finding as to Shaw who, under Rademacher's orders, either remained
in the Tahoe or in the back of a patrol car, or both, for an extended period.
We find the trial court's reliance on our
decision in Chapman, supra, 332 N.J. Super. at 452, to be
inapposite because, in that case, none of the factors tending to show the
consent was coerced were present.In
that case, based on a vehicle's slow and erratic path, the police stopped the
car believing its driver was intoxicated or fatigued.Id. at 456.The defendant, who was driving, could not
produce a driver's license, and his and the other passengers' answers to the
officer's question aroused suspicion.Id.
at 456-58.After indicating his
intention to issue a summons for failure to have a valid license and a warning
for careless driving, the officer sought the defendant's consent to search the
car.Id. at 458-59.After the defendant executed the consent
form, the officers searched the vehicle and found a large quantity of
marijuana.Id. at 459.We "reject[ed] [the] defendants'
contention that the detention ripened into an invalid, de facto
arrest."Id. at 465."We conclude[d] that [the] defendants'
detention was supported by an articulable suspicion that criminal activity
might be afoot, or at the very least, by the need to assure that allowing the
defendants to proceed on their way would not pose a danger to the public."Id. at 465-66 (citation omitted).We also stated that "[w]e would [have]
reach[ed] the same result even were we to find that the detention was
unlawful.In that event, we would
conclude that [the defendant's] consent to search was sufficiently an act of
free will to purge the original taint emanating from the unlawful
detention."Id. at 466.We then extensively considered whether
"the causal chain between an unlawful detention and evidence discovered
afterward [was] broken."Id.