State v. Michael Cushing

State v. Michael Cushing (A-68-14) (073925)

Argued February 29, 2016 -- Decided August 3, 2016

LaVECCHIA, J., writing for a unanimous Court.

At issue in this appeal is the validity of a third party’s consent to search an adult household member’s bedroom. The trial court denied defendant’s motion to suppress the evidence seized as a result of the warrantless search. The Appellate Division reversed, concluding that the on-the-scene law enforcement officer had not obtained a valid authorization to enter and inspect items in defendant’s bedroom and interior closet.

On June 24, 2011, Officer Ziarnowski of the Bridgewater Township Police Department responded to a telephone call from a person reporting suspected marijuana found in a single-family residence within the township. According to Ziarnowski, he went to the address provided and Lisa Mylroie answered the door and invited him in. She identified herself as the person who called the police and told the officer that the house belonged to her eighty-five-year-old mother, Betty Cushing, who was not home at the moment. Mylroie told him that her mother was “at a neighbor’s house.” Mylroie’s sister, Charlene Cushing, was also present in the home. Ziarnowski did not question her, as far as the transcript reveals; however, she is reported by Ziarnowski to have nodded in agreement during Mylroie’s statements to him.

Mylroie stated that when she arrived at the house, defendant was not home. She decided to look around upstairs to see why her mother’s electricity bill, which she paid on her mother’s behalf, was unusually expensive. Mylroie told Ziarnowski that she entered defendant’s upstairs bedroom and observed a bright light shining from beneath the door to the room’s interior closet. Mylroie opened the door and saw several plants that she believed to be marijuana. She then called the police. After Mylroie provided that information, she led Ziarnowski upstairs to defendant’s bedroom. There, once Mylroie opened the closet door, Ziarnowski saw the plants she had described, with grow lights above them. He stated that he believed at the time that the plants were marijuana plants. Ziarnowski said he did not touch or move the plants; instead, he returned downstairs, secured the residence, and called his supervisor to inform him of the need to apply for a search warrant.

After Officer Ziarnowski left to obtain a search warrant, Betty Cushing returned home. Another officer presented her with a consent-to-search form, which she signed to authorize a search of the yard and entire house -- except for defendant’s bedroom. Betty told the officer seeking her consent that she could not consent to search defendant’s room because it was his room. Approximately an hour later, Officer Ziarnowski returned with a search warrant. In executing the search warrant, police seized from defendant’s bedroom sixteen marijuana plants, several five-gallon buckets used to hold the plants, ventilation units, and drug paraphernalia. Officers also seized a Ziploc bag of marijuana that was discovered in a backyard shed.

2 On August 31, 2011, defendant was indicted on charges of first-degree maintaining a controlled dangerous substance (CDS) production facility, second-degree possession of marijuana with intent to distribute ten or more but less than fifty marijuana plants, second-degree possession of marijuana with intent to distribute within 500 feet of a public park, third-degree possession of marijuana with intent to distribute within 1000 feet of school property, and fourth-degree failure to notify law enforcement of a change of employment as required under Megan’s Law. Defendant filed a motion to suppress the evidence found in his bedroom. The court framed the question as whether a “non-resident attorney[-]in[-]fact ha[s] the legal authority to consent to a search of premises owned and occupied by her principal[,]” and whether consent was valid in this instance. The court determined that Mylroie’s power of attorney granted her that authority and that the police had a reasonable basis to rely on it. After denying defendant’s motion to suppress, the court sentenced him to an aggregate sentence of ten years’ imprisonment with a forty-month parole disqualifier.

Defendant appealed, arguing that Mylroie lacked actual or apparent authority to give consent to enter and search his bedroom. The Appellate Division agreed and reversed, focusing for the most part on the lack of actual authority by Betty Cushing to have consented to a search of defendant’s bedroom. The panel concluded that because Betty Cushing lacked actual authority, Mylroie could not possess derivative authority to consent to the search.

The State also advanced before the Appellate Division its alternative basis for sustaining the search under the independent-source doctrine. However, the panel declined to apply the doctrine in the first instance, noting that the trial court had not sufficiently addressed the argument. In remanding the matter, the panel ordered the trial court to address whether the independent-source doctrine applies under the circumstances.

The Supreme Court granted the State’s petition for certification. 222 N.J. 311 (2015).

HELD: The record contains ample evidence to support the Appellate Division’s conclusion that Betty Cushing did not have actual authority to consent to the search of defendant’s room, and Betty could not have conferred through any power of attorney an authority that she did not possess herself. In addition, it was not objectively reasonable for Officer Ziarnowski to rely on an apparent authority by Mylroie as the basis for valid third-party consent to his initial search of defendant’s bedroom.

1. The search of a home raises heightened privacy concerns. The United States Supreme Court has recognized, however, that in certain circumstances a third party -- a person other than the defendant -- can validly consent to a search of the defendant’s home. Also, in recognition of the many factual settings that confront a law enforcement agent, an officer may, depending on the circumstances, rely on the apparent authority of a person consenting to a search. This Court also applies, under the State Constitution, the consent exception to third parties who possess actual authority based on their common use of the space searched. See State v. Suazo, 133 N.J. 315, 319-20 (1993). Furthermore, even when the third party does not possess actual authority to consent to a search, this Court has recognized that evidence seized during such a search need not be suppressed under the State’s constitutional requirements if the “officer’s belief that the third party had the authority to consent was objectively reasonable in view of the facts and circumstances known at the time of the search.” State v. Coles, 218 N.J. 322, 340 (2014) (quoting Suazo, supra, 133 N.J. at 320). (pp. 12-15)

2. The question whether an expectation of privacy existed here is easily resolved. Defendant had a clear privacy expectation in his room, which both he and his grandmother recognized. Authority to consent to search a particular area of a home turns on common usage, and Betty Cushing’s evident lack of common use of defendant’s bedroom and her recognition of his exclusive control of that space meant that only defendant possessed the ability to consent to a search of his bedroom and interior space. The record contains ample evidence to support the Appellate Division’s conclusion that Betty Cushing did not have actual authority to consent to the search of defendant’s room. There is no need to address whether Mylroie had actual authority to consent to the search of defendant’s room by virtue of an asserted power of attorney because Betty could not have conferred through any power of attorney an authority that she did not possess herself. (pp. 15-18)

3. The standard for determining whether a police officer may rely on a third party’s apparent authority is whether the officer’s belief at the time was objectively reasonable. That standard is not satisfied in this case based on the proofs presented at the suppression hearing. Although there is no reason to question the officer’s good faith when interacting with Mylroie at the house, the Court cannot conclude that the officer’s belief that Mylroie had authority to consent to entry and inspection of defendant’s bedroom was objectively reasonable. Third parties derive authority from common and joint use of space. That requirement calls for careful scrutiny when applied to parties who are not the homeowners yet are purporting to authorize consent to search the bedroom of an adult in the home in which he resides. Here, the officer failed to ask adequate questions at the scene before he followed Mylroie into defendant’s room and then peered into his closet. Officer Ziarnowski could not have relied on an apparent authority by Mylroie as the basis for valid third-party consent to his initial search of defendant’s bedroom. The Court further agrees with the Appellate Division that this matter requires remand for the trial court to address whether the independent-source doctrine applies under the circumstances. (pp. 18-21)

The judgment of the Appellate Division is AFFIRMED.