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.
