Consent to Search a Home without Exclusive Access and Control of Property

NEW JERSEY CRIMINAL LAW
14-2-2622 State v. CushingApp. Div. (per curiam) (26 pp.)

There are two key issues in this case. The first is the ability of an owner of a property (or their ‘attorney in fact’ agent) to give consent to the police to search a home which they do NOT have exclusive access and control over.  The home in questions was owned by an elder lady whose relative was living in the home with his girlfriend.  A neice came to the home to get in and evict the family member.  Upon entry she went up stairs and saw 16 pot plants growing inside a closed closet. She then called the police.  The owner refused to sign any consent search form after the police arrived and viewed the plants. Once the plants were viewed the police then obtained a search warrant for the home.

The Appellate Division ruled that the owner did not have the exclusive control and access recognized to enable her to give access and consent to the police, and hence neither did the owner’s niece who was at the property allowing the police to enter.  The state then argued, the seizure of the marijuana plants and paraphernalia in defendant’s bedroom closet was lawful pursuant to an independent source, i.e., the search warrant actually secured by police.

In other words, the police would have learned of the plants based on the search warrant they had obtained after the fact.  The court remanded the case for further testimony on this issue and directed the trial court accordingly finding if defendant prevails and the evidence is suppressed, defendant’s guilty pleas shall be vacated. If the State prevails and the evidence is not suppressed, defendant’s conviction is affirmed, but the matter is remanded for resentencing.

Submitted by New Jersey Criminal Attorney, Jeffrey Hark

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