A Private Actor’s Role in A Criminal Search Could Be Unlawful
Appellate Docket No.: A-1671-19
Decided March 9, 2022
Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark
In a recent unpublished opinion, the Appellate Division of New Jersey affirmed a denial of a motion to suppress after child pornography was found by a cohabitant, reported to the police, and after police viewing some materials and subsequent interrogation of defendant.
In State v. Lapczynski, before defendant’s arrest, he and Justin Obuch had been roommates for approximately seven years, first in an apartment, and then in Obuch’s house. Defendant paid Obuch rent and initially lived upstairs. As members of Obuch’s family moved in, including his wife and child, defendant relocated to the basement. He shared the common areas of the house, such as the kitchen and the upstairs bathroom. Defendant created office space for himself in the shared basement laundry room and maintained his computers there.
The router for the home internet, listed under Obuch’s name, was connected to defendant’s desktop computer. Obuch, who worked in IT, used defendant’s computer to maintain the internet system and troubleshoot any problems. Defendant acknowledged leaving his desktop computer screen open, and that others could have accessed the computer.
On the day in question, Obuch went downstairs to work on the internet connection because the home system was down. While making the adjustments, Obuch opened a folder on defendant’s screen labeled “pictures.” He found a trove of pornographic images of underage adolescents and children, some 1,725 pages in all. Obuch viewed only a few of the photos, called his wife, and immediately called police. When the officers arrived, Obuch led them downstairs to show them the pictures. The two officers asked Obuch to show them what he had seen. After viewing approximately five photographs, they instructed Obuch to stop.
Police asked defendant to come to the station for questioning upon his return. The officers began by reading defendant his Miranda1 rights, which defendant waived. Stilwell asked defendant about the child pornography on his computer: “it’s a matter of, you know, you explaining what it’s doing there.” Defendant responded: “I would imagine — I don’t want to call it that, but I would call it, you know, teen underage, you know, artistic stuff. And the — I guess I’ve got a problem. I guess I — I (indiscernible) did it for a while.” Defendant denied sharing the materials or having “do[ne] anything.” Defendant then added, “[i]t’s just — it’s a fantasy.” Stilwell responded that if defendant “need[ed] some type of help, I mean, that is — that’s the first — you know, that’s the first step.”
Defendant then signed a consent for police to search his computer. Defendant claimed he only signed the consent because Obuch told him the police had a warrant.
Defendant challenged the search claiming it was an invalid warrantless search. The trial court denied Defendant’s motion to suppress, finding no violations of the Constitution and Defendant voluntarily signed the consent form. Defendant appealed and the Appellate Division affirmed, finding that a search by a private actor can only be suppressed if they are working as an arm of the state. Without any other independent violations, the search is upheld.
This case is important to understand a private actor’s role in a search that could be unlawful:
Police may only search pursuant to a warrant or an exception to the warrant requirement. State v. DeLuca, 168 N.J. 626, 631 (2001). The State must meet that burden by a preponderance of the evidence. State v. Elders, 192 N.J. 224, 246 (2007). Where unlawful police misconduct occurs, evidence is suppressed. In re J.A., 233 N.J. 432, 446-47 (2018); see also State v. Hamlett, 449 N.J. Super. 159, 176 (App. Div. 2017).
Both the federal and New Jersey constitutions enshrine an objectively reasonable expectation of privacy. See State v. Hinton, 216 N.J. 211, 236 (2013). “[A] policeman does not trespass when he enters the common areas [of a multi-resident dwelling] in discharge of his duties.” State v. Smith, 37 N.J. 481, 496 (1962); see also State v. Johnson, 171 N.J. 192, 209 (2002) (Johnson I) (“none of the occupants [of a multi-occupancy premises] can have a reasonable expectation of privacy in areas that are also used by other occupants.”).
The rule against unreasonable searches and seizures, however, only applies to state action. In re J.A., 233 N.J. at 451-52. A private person acting “as an arm of the police” may be treated as a state actor for constitutional purposes. Id. at 452 (quoting State v. Scrotsky, 39 N.J. 410, 416 (1963)). In contrast, a private person who independently obtains a defendant’s property and gives it to police is not a state actor, and such evidence need not be suppressed. Ibid.
The court must exclude evidence obtained by a private party’s search and seizure when “the government ha[d] pre[-]knowledge of and yet acquiesce[d] in” a search that the government “could not have undertaken” itself. State v. Sanders, 185 N.J. Super. 258, 265 (App. Div. 1982) (quoting United States v. Clegg, 509 F.2d 605, 609 (5th Cir. 1975)). “[W]here [government] officials actively participate in a search being conducted by private parties or else stand by watching with approval as the search continues, [government] authorities are clearly implicated in the search and it must comport with [constitutional] requirements.” Id. at 266 (quoting United States v. Mekjian, 505 F.2d 1320, 1327 (5th Cir. 1975)).
Further, “the private search doctrine cannot apply to private dwellings.” State v. Wright, 221 N.J. 456, 476 (2015). And generally, “a landlord does not have the authority to consent to a search of a tenant’s private living space.” Ibid. The private search doctrine recognizes the “special status of the home under federal and state constitutional law . . . .” Id. at 477. “If private parties tell the police about unlawful activities inside a person’s home, the police can use that information to establish probable cause and seek a search warrant.” Id. at 478. “But law enforcement cannot accept a landlord’s invitation to enter a home without a warrant unless an exception to the warrant requirement applies.” Ibid. However, Wright does not “cast doubt on the private search or third-party intervention doctrine in its original form. When the police reexamine property that has been searched by a private actor and presented to law enforcement in a non-residential context, neither the Fourth Amendment nor the State Constitution requires a warrant.” Id. at 479.
Where a private actor performed the initial search, police may perform a subsequent search that “does not exceed the scope of the private search” so long as the police do not violate any constitutional privacy right “that had not already been frustrated as a result of the private conduct.” State v. Shaw, 237 N.J. 588, 608 (2019) (quoting United States v. Jacobsen, 466 U.S. 109, 126 (1984)).
“A co-habitant who possesses common authority over or has a sufficient relationship to the premises or effects sought to be inspected may voluntarily consent to a lawful search.” State v. Lamb, 218 N.J. 300, 315 (2014).
The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements[,] but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
[Id. at 316 (quoting United States v. Matlock, 415 U.S. 164, 171 n.7 (1974)).]
If you or someone you know have been charged with any indictable offense or disorderly persons involving a search and/or questioning of police, or you have questions regarding probable cause and warrantless searches, contact the experienced attorney at Hark & Hark to ensure you are adequately defended, otherwise you could have negative impacts on your case like the defendant above.
At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.
