Suppression of Evidence required when police enter a home without a warrant – State v. ADL August 7, 2019


Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In this case the police came to a home in search of a shooter. One officer knocked on the door in plain cloths, however there were 4-5 others right behind him.  In this fact sensitive case the court found there was no ‘knowing and voluntary consent’ by the person answering the door to allow the police to enter. The reasoning is as follows:

“It is well-established that a resident of property may vitiate the warrant requirement by consenting to a search by the police. State v. Domicz, 188 N.J. 285, 305 (2006); see also State v. Legette, 227 N.J. 460, 474-75 (2017) (ruling the State failed to establish consent to justify the warrantless police search of a residence).

An “essential element” of such consent to conduct a warrantless search is the individual’s “knowledge of the right to refuse [it].” State v. Johnson, 68 N.J. 349, 353-54 (1975); see also Legette, 227 N.J. at 475 (reversing a finding of consent by a defendant who had been stopped by an officer on a reasonable suspicion of illegal drug use, because the State had not shown the defendant “thought he could refuse [the officer’s] search into his apartment”). In a noncustodial setting such as the present one, the State does not necessarily have to establish that police officers expressly advised the person who allowed their search of the right to refuse consent, but that burden remains on the State to demonstrate that person’s knowledge of right to refuse. Johnson, 68 N.J. at 354.

“[C]onsent to a warrantless search . . . must be shown to be unequivocal, voluntary, knowing, and intelligent.” State v. Sugar, 108 N.J. 151, 156 (1987). Consent is a factual question determined by an examination of the totality of the circumstances. State v. Koedatich, 112 N.J. 225, 264 (1988).

Applying these legal standards, as we did in Bradley, we respectfully disagree with the court’s conclusion that defendant’s opening of the house’s front door and standing to the side, gave the large group of assembled police officers valid consent to enter and search the dwelling. Sgt. Triarsi did not testify that he or any of the other officers present advised defendant of his right to refuse consent. Nor did the State establish that defendant was already aware of that right.

The video clearly shows that defendant leaned aside after he encountered the officers at the door. See State v. S.S., 229 N.J. 360, 374-81 (2017) (clarifying the limited scope of appellate review of factual findings based on video evidence, but declaring that “[a]ppellate courts have an important role in taking corrective action when factual findings are so clearly mistake – so wide of the mark – that the interest of justice demand intervention”); see also State v. A.M., 237 N.J. 384, 395-96 (2019). This is insufficient proof that he knowingly and voluntarily consented to their search into the dwelling. Wearing garb that identified him as a law enforcement officer, Sgt. Triarsi knocked on the door with several other officers assembled behind him. Rather than identify himself or converse with defendant, Sgt. Triarsi immediately demanded to know “[W]here is he[?]”; referring to Bradley.

The totality of circumstances objectively would have been intimidating or alarming for a citizen opening the door to this encounter. As the Court observed in Johnson, “[m]any persons, perhaps most, would view the request of a police officer to make a search as having the force of law.” 68 N.J. at 354. Hence, “[u]nless it is shown by the State that the person involved knew that he had the right to refuse to accede to such a request, his assenting to the search is not meaningful.” Ibid.; see also State v. Rice, 115 N.J. Super. 128, 130-31 (App. Div. 1971) (ruling that where a police officer knocked on an apartment door and entered, without any words being spoken between the officer and the person who opened the door, the search was not with knowing consent and instead was, “[a]t best . . . permitted in submission to authority”).

Accordingly, we are constrained to rule that the court’s conclusion that defendant’s actions and inactions granted the officers consent to enter the residence is unpersuasive and not supported by substantial credible evidence. We thus conclude the consent exception to a warrantless search does not apply.

We likewise are unpersuaded that the record suffices to establish defendant had apparent authority to allow the officers into this private dwelling. The United States Supreme Court has applied the apparent authority doctrine “when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their search is a resident of the premises[.]” Rodriguez, 497 U.S. at 186 (emphasis added); see also Georgia v. Randolph, 547 U.S. 103, 109 (2006) (noting that police may reasonably rely upon consent given by “a co-occupant whom the police reasonably, but erroneously, believe to possess shared authority as an occupant.” (emphasis added)).

The Court has warned in this context that Fourth Amendment rights must not be “eroded . . . by unrealistic doctrines of ‘apparent authority.'” Stoner v. California, 376 U.S. 483, 488 (1964). The trial court’s analysis here threatens such an erosion. It is not objectively reasonable for police to assume that whenever an adult answers a door to a dwelling, the adult has the apparent authority to consent to the police entering.

None of the officers asked defendant if he owned or lived in the house. They obtained no information before entering about his reason for being on the premises. Defendant’s mere conduct in opening the door in response to Sgt. Triarsi’s knocking, and in thereafter leaning his body away from the officers’ path, does not provide sufficient objective indicia that he possessed the right to decide who may enter the premises.

Indeed, the police appeared to know little about the house other than they suspected Bradley was inside. They had no information about who lived there or whether defendant was their relative or a guest of the residents. There simply is not enough evidence in this record to conclude, as a matter of law, that defendant possessed the apparent authority to consent to the police search.

Having concluded that the record or the applicable law does not support the consent exceptions to the warrant requirement, we must consider the ramifications of that conclusion. It is clear that the firearm and CDS that were seized from the house after their illegal warrantless search were “fruits of the poisonous tree” and should have been suppressed. See State v. O’Neill, 193 N.J. 148, 171 n.13 (2007). Consequently, this matter must be remanded to afford defendant an opportunity to withdraw his guilty pleas to three offenses and have the judgment of conviction vacated.”

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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