State v. Michael Lamb (071262)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State of New Jersey v. Michael W. Lamb (A-37-12) (071262)

Argued October 22, 2013 -- Decided May 19, 2014

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers the validity of a warrantless search of a house, specifically addressing
whether the knowing and voluntary consent by an occupant to search a premises is constitutionally effective against
a third party when an absent co-occupant has objected to the search.

On July 3, 2009, Pennsville police received a report of a shooting on a city street. The victims told police
that defendant Michael W. Lamb pulled up next to them in a car driven by his girlfriend, Jennifer Garcia. Garcia
stopped the car and defendant questioned the victims about the location of another man. After going back and forth
about whether the victims knew the man, defendant produced a handgun. One victim reached through the car
window, grabbed defendant’s arm and pushed the gun toward the floor. Garcia started to drive away, and defendant
fired at the victims as they ran into a nearby yard.

Outside of a home in the community where defendant allegedly lived, Pennsville Township Police
Detective Greg Acton located two cars matching the description provided by the victims. Acton and another officer
knocked on the door multiple times while defendant’s stepfather, Steven Marcus, yelled that they should leave.
Although Marcus ultimately opened the door, he insisted defendant was not there and again demanded that the
officers leave the premises. Acton removed Garcia from the house when she approached the front door. She told
Acton that defendant was hiding under the bed in the room they shared and confirmed that she had been driving the
car, that she saw the gun, and that defendant fired a shot into the air. According to Garcia, in addition to defendant
and Marcus, three young children and defendant’s mother, Karen Marcus, were in the house.

Police called the residence in an effort to persuade either defendant or Marcus to come outside. Once
Marcus left the home, he was placed in custody and removed from the area. At the insistence of his mother,
defendant also left and was arrested. Acton then spoke to Karen, who later admitted that she signed a consent-to-
search form after being told the police would obtain a search warrant if she refused. She explained that one of her
young children was distraught, she did not want her new home torn apart in a search, and she was upset about her
son’s behavior. Karen took the officers to defendant’s room, where they found a handgun.

Defendant was indicted on two counts of attempted murder, four counts of aggravated assault, one count of
unlawful possession of a handgun, and one count of possession of a handgun for an unlawful purpose. He moved to
suppress the evidence seized from his bedroom, arguing that Karen’s will was overborne by police. The trial court
denied the motion, finding that Karen acted voluntarily and without coercion. The court noted that although Karen
undoubtedly was upset and fearful, these emotions did not overwhelm her ability to consent to a search. Moreover,
the court concluded that the police had no obligation to leave the premises as directed by Marcus, explaining that his
earlier refusal to permit entry did not nullify Karen’s subsequent consent. Defendant entered a conditional guilty
plea to second-degree unlawful possession of a handgun and was sentenced to a five-year prison term subject to
three years of parole ineligibility.

Defendant appealed the denial of his motion to suppress. The Appellate Division affirmed, finding that
Karen knowingly consented to the search. It agreed that her consent was not nullified by Marcus’s earlier refusal,
emphasizing that Marcus was not present when Karen consented, his refusal was not contemporaneous, and there
was no evidence he was removed from the home to avoid his objection. The Court granted defendant’s petition for
certification limited to the issue of whether consent by an occupant to search a premises is constitutionally effective
against a third party when an absent co-occupant has objected to the search. 213 N.J. 531 (2013).

1
HELD: Under the circumstances of this appeal, an occupant’s knowing and voluntary consent to search a premises
is constitutionally effective against a third party and is not nullified by the prior objections of an absent co-occupant
whose absence is not the result of a police effort to avoid an objection.

1. Appellate courts reviewing the grant or denial of a motion to suppress are required to uphold the trial court’s
factual findings when supported by sufficient credible evidence, reversing only when demanded by the interests of
justice. Deference is not given to a trial court’s interpretation of the law, which is reviewed de novo. (p. 14)

2. Under the automatic standing rule, virtually all defendants are permitted to contest a search or seizure where they
have either a possessory, participatory or proprietary interest in the place searched or property seized, or if
possession of the seized evidence is an essential element of guilt. Here, defendant has automatic standing to contest
the search and seizure since he clearly had a possessory interest in the seized handgun, possession of which is an
essential element in several of the charged offenses. (pp. 14-16)

3. The preference for police officers to obtain a warrant prior to searching an individual’s home arises from the
Fourth Amendment of the United States Constitution and Article I of the New Jersey Constitution, which guarantee
the right to be free of unreasonable searches and seizures in one’s home. Where consent to search is freely and
voluntarily given, it is a recognized exception to the warrant requirement. If multiple people reside in the same
home, any occupant with common authority over the premises or effects sought to be inspected may voluntarily
consent to a lawful search. However, a co-occupant’s consent is insufficient basis for a reasonable search if a
potential defendant with self-interest in objecting is physically present and objects. Georgia v. Randolph, 547 U.S.
103, 121 (2006). In contrast, a potentially objecting occupant who is nearby but not part of the conversation need
not be considered so long as he or she has not been removed by police for the purpose of avoiding a possible
objection. Id. at 121-22. Recently, in Fernandez v. California, 571 U.S. ___, ___ (2014), the Supreme Court
underscored the limited scope of Randolph, holding “that an occupant who is absent due to a lawful detention or
arrest stands in the same shoes as an occupant who is absent for any other reason.” Since it would be inconsistent
with the narrow exception in Randolph, the Supreme Court also declined to place a durational limit on an
objection’s effectiveness. Id. at ___. In New Jersey, no prior cases have considered the constitutionality of a search
as to a third occupant against whom the government wished to use the seized evidence when the search was
conducted with consent of one co-occupant subject to the contemporaneous objection of another. (pp. 16-23)

4. Here, the focus of the challenge is whether Karen’s consent was overridden by Marcus’s prior strenuously
expressed demands that the police leave the premises. The Court concludes that the rule announced in Randolph
does not render Karen’s consent invalid and the search unreasonable. The Randolph holding is very narrow and
emphasizes that a search predicated on the consent of one occupant over the objection of another renders the
warrantless search constitutionally infirm only as to the objecting occupant. Thus, the search here is not
unreasonable as to defendant even in the face of Marcus’s demands. Moreover, there was no suggestion that Marcus
renewed his objection after leaving the house, and the record likewise provides no support for a conclusion that the
police engineered the departures of Marcus or defendant in order to prevent them from objecting to the warrantless
search of defendant’s room. In fact, the police had probable cause to arrest defendant for the earlier shooting and to
detain Marcus once he left the house. Any doubt that the police did not comport with the limited holding in
Randolph is resolved by Fernandez, supra, which places an occupant who is absent due to a lawful detention or
arrest in the same position as any other absent occupant. 571 U.S. at ___. Since Marcus’s lawful removal nullified
his earlier objection, Karen had full authority to consent to the search. The Court also recognizes that the
circumstances here were infused with exigency since the home was in close proximity to other residences and Karen
was inside with three small children and a loaded gun. The record attests to a reasonable police response, with no
suggestion that any occupant’s absence was contrived to avoid a potential objection to the search. Karen provided
knowing and voluntary consent, rendering the warrantless search reasonable under the circumstances of this appeal.
(pp. 23-27)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN and PATTERSON; and JUDGE
RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-37 September Term 2012
071262

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL W. LAMB,

Defendant-Appellant.

Argued October 22, 2013 – Decided May 19, 2014

On certification to the Superior Court,
Appellate Division.

Jay L. Wilensky, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).

Frank J. Ducoat, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).

JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

This appeal involves the validity of a warrantless consent

search of a house. An investigation of a reported shooting in

another part of town led Pennsville police to the house in which

police knew defendant Michael W. Lamb had resided at one time.

When police arrived, defendant’s stepfather emphatically

1
informed police that they were not welcome on his property or in

his house.

While defendant’s stepfather informed police that they

could not enter his home, defendant’s girlfriend appeared at the

door and left the house. She supplied information to police

that provided probable cause for defendant’s arrest and

confirmed his presence in the house.

Later, defendant’s stepfather agreed to leave the house.

Soon thereafter, defendant left the house at the insistence of

his mother. She remained in the house with three children

between the ages of eight months and nine years and a loaded

gun.

Defendant’s mother permitted police officers to enter the

house and agreed to a search of the room where her son and his

girlfriend were staying. Police located a loaded handgun and

ammunition similar to the equipment used in the earlier

shooting.

We conclude that the consent to search provided by

defendant’s mother was knowing, voluntary, and valid. The

absence of defendant and his stepfather from the home permitted

defendant’s mother to provide or withhold consent. Fernandez v.

California, 571 U.S. ___, 134 S. Ct. 1126, 188 L. Ed. 2d 25

(2014). Furthermore, the initial opposition expressed by

2
defendant’s stepfather was no longer effective once he was not

physically present in his home.

Under the totality of the circumstances, we hold that the

warrantless search of defendant’s bedroom was solidly anchored

to the knowing and voluntary consent to search given by

defendant’s mother.

I.

We derive the facts from the evidentiary hearing conducted

by the motion court in response to defendant’s motion to

suppress the handgun seized following a consent search of his

mother and stepfather’s home authorized by his mother.

On July 3, 2009, Pennsville police received a report of a

discharge of a firearm on a city street in the Deepwater section

of town. The victims, a man and a woman, told police that they

encountered defendant, first on foot and then as a passenger in

a car. Defendant initially approached the victims and inquired

about the location of a particular individual. The male victim

advised defendant that he did not know the man. Defendant left

but returned moments later in a car driven by his girlfriend,

Jennifer Garcia. She stopped the car alongside the male victim,

and defendant, who was seated in the front passenger seat,

resumed his questioning about the whereabouts of the man he was

trying to locate. During this conversation, defendant

3
identified himself as Michael Lamb and told the victims he was

from Quinton, a town about ten miles from Pennsville.

The male victim reiterated his earlier statement that he

did not know the man whom defendant sought, but the female

victim started to volunteer some information. The male victim

silenced her, and defendant and the male victim continued to

discuss whether the male victim had any knowledge of the other

person. Then, defendant produced a handgun. The male victim

reached through the open window, grabbed defendant’s arm, and

pushed the gun toward the floor of the car. Garcia started to

drive from the scene and the male victim removed his hand from

defendant’s arm. As the car pulled away, the male victim saw

defendant lean out of the front passenger seat window and point

the gun in his direction. As the male and female victims ran

into a yard, the male victim saw a flash from the muzzle of the

gun and heard a discharge. Police later found a .45 caliber

spent shell casing close to the curb where defendant had

discharged the gun.

A police database search revealed that defendant had lived

with his parents at Lot 18 of the South Bridge Community Mobile

Home Park in Pennsville. In an attempt to locate defendant,

Pennsville Township Police Detective Greg Acton drove through

the community in an unmarked car and observed two cars at Lot 18

that matched the descriptions provided by the victims. After

4
securing the area, Detective Acton drove to the residence and

observed a middle-aged white male standing on a step. As the

detective exited his car, the male, later identified as Steven

Marcus, defendant’s stepfather, immediately entered the house.

Acton and another officer approached the door and knocked.

When Acton received no response, he knocked harder. Through the

unopened door, the detective heard a male voice yell that the

police should leave the property. The detective banged on the

door again, and Marcus opened the door. The detective told

Marcus that he was looking for defendant. Marcus stated that

defendant was not there and emphatically demanded that the

police leave the premises.

The detective observed, standing behind Marcus, a young

woman, who matched the description of the driver of the car

carrying defendant and who was later identified as Garcia. The

officer asked whether the young woman was defendant’s girlfriend

and if defendant was in the house. As Garcia approached the

door, the detective took her arm and removed her from the house.

All the while, Marcus was yelling for the police to get out of

the house and leave his property.

Garcia told the officer that defendant was in the house and

hiding under a bed in the room they occupied when they visited

defendant’s mother and stepfather. She also confirmed that she

had driven defendant to the Deepwater section of Pennsville,

5
that a conversation occurred between defendant and another male

that escalated into a verbal argument, and that she saw the gun

and observed defendant fire a shot into the air. Garcia told

the detective that she did not know whether defendant remained

in possession of the gun. Detective Acton also learned that, in

addition to defendant, two adults and three children between the

ages of eight months and nine years were in the house.

Detective Acton ordered other officers to evacuate nearby

residences and requested assistance from the police department

and the county prosecutor. Once the area was secure, police

placed a telephone call to the residence to persuade either

defendant or Marcus to leave the residence. After approximately

ten to fifteen minutes, Marcus left the residence. He was

placed in custody and removed to a safe area. Police continued

to speak with Karen Marcus, the mother of defendant and wife of

Marcus. Approximately ten minutes later, at the insistence of

his mother, defendant left the house and was arrested. Officers

from the county prosecutor’s office and Detective Acton went to

the entrance of the house to speak with Karen.1

Karen later admitted that she signed a consent-to-search

form but insisted that she did not do so voluntarily. She

testified that the police informed her that they would obtain a

search warrant if she refused to consent to a search. Karen

1
We refer to Karen Marcus by her first name to avoid confusion.
6
also related that the police threatened that the entire family

might spend the night in jail, if she refused to consent to the

search. Karen testified that one of her daughters was very

distraught, that she did not want her new home torn apart in a

search, and that she was very upset that her son’s behavior had

brought the police to her home. Therefore, she signed the form

without reading it and unwillingly guided the officers to the

room used by defendant when he stayed at the house. Police

found a Taurus .45 caliber semi-automatic handgun with five

rounds in the chamber and an extra magazine in a box in a closet

of the bedroom.

II.

A.

Defendant was indicted on two counts of attempted murder,

N.J.S.A. 2C:5-1, 2C:11-3(a); four counts of aggravated assault,

N.J.S.A. 2C:12-1(b)(1); one count of unlawful possession of a

handgun, N.J.S.A. 2C:39-5(b); and one count of possession of a

handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a).

Defendant filed a motion to suppress the evidence seized

from his bedroom. Defendant argued that his mother’s will had

been overborne by police. He emphasized that she was frightened

and believed she had no choice but to consent to a search of her

house. Under the circumstances, defendant insisted that her

consent to search was not voluntary.

7
 The State argued that the warrantless search of the Marcus

residence was reasonable because Karen consented to the search.

The State emphasized that Karen read the consent-to-search form,

knew she could refuse consent, and knew that the search would

focus initially on the room recently occupied by her son. The

State acknowledged that police informed Karen that they would

obtain a search warrant if she refused consent, but argued that

providing accurate information does not undermine an otherwise

knowing and voluntary consent to search.

The motion court denied the motion to suppress, finding

that Karen acted voluntarily and without coercion. The court

generally credited and adopted Detective Acton’s version of the

events. The motion court noted that Karen admitted that the

police advised her she could refuse and withdraw consent. The

trial court further found that there was probable cause to

search the premises, and therefore, it was not improper for the

police to suggest that they would obtain a search warrant if

Karen refused consent. The motion court acknowledged that Karen

was undoubtedly upset and frightened and noted her admission

that she yelled at her son for bringing trouble and “stuff” into

her house. Yet, the motion court found that her fear about the

presence of a gun and police officers in her house did not

overwhelm her ability to consent to a search of the house.

8
 The motion court also held that the police had no

obligation to leave the premises as directed by Marcus.

Furthermore, Marcus’s earlier refusal to permit entry into his

house did not nullify Karen’s later consent. Additionally, the

court mentioned that exigent circumstances justified the search,

although the State had not advanced this argument.

Following the denial of his motion to suppress, defendant

entered a conditional guilty plea to second-degree unlawful

possession of a handgun. Pursuant to the plea agreement,

defendant was sentenced to a five-year term of imprisonment

subject to a three-year period of parole ineligibility. The

remaining charges were dismissed.

B.

Defendant appealed the denial of the motion to suppress to

the Appellate Division, which affirmed the denial of the motion.

The panel found that Karen knowingly consented to a search of

her adult son’s bedroom because she was informed of her right to

refuse, read the consent form, and signed it. The appellate

panel also concluded that Karen’s consent to search was not

negated by her husband’s earlier refusal. The panel emphasized

that Marcus was not present when Karen consented to the search,

“his refusal [was] no longer contemporaneous, and there was no

finding that he was removed for the sake of avoiding his

9
objection” or that he would have continued to object by the time

Karen agreed to the search.

This Court granted defendant’s petition for certification

limited to the issue of whether consent by an occupant to search

premises is constitutionally effective against a third party

when an absent co-tenant has objected to the search. 213 N.J.

531 (2013).

III.

A.

Defendant contends that Karen’s consent to search after

Marcus refused to grant consent was invalid under Georgia v.

Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208

(2006). Defendant maintains that there is a distinction between

an objecting tenant who has been validly arrested and taken from

the scene, and a tenant who has been taken and remains only a

short distance away. Defendant urges this Court to reject a

literal reading of the “physically present and objecting”

requirements of Randolph, arguing that an objector’s absence

from the doorstep of his home should not necessarily preclude

the objector from exercising his or her right to refuse consent,

especially when the co-tenant remains in close proximity to his

or her house. Defendant further contends that a co-tenant

without superior authority over shared property should not be

10
permitted to overcome an objecting co-tenant’s right to refuse

consent.

Defendant further argues that the exception to the physical

presence rule articulated in Randolph should not be limited to

pretextual removals of an objector because it may be difficult

to determine why a suspect was removed from the scene by the

police. Defendant argues that, in this case, the appellate

panel merely speculated that Marcus would have changed his

refusal to consent after the police removed him from the

premises.

Finally, defendant urges this Court to reject the language

in Randolph implying that a third party has no standing to

contest a search when he is not the objector to the search.

Defendant contends that this language is dicta, and runs afoul

of State v. Alston, 88 N.J. 211, 228-29 (1981) (granting

automatic standing to any person who “has a proprietary,

possessory or participatory interest in either the place

searched or the property seized”). Defendant maintains that the

automatic standing doctrine is firmly established and grants him

standing to challenge the search of his parents’ home in this

State. Accordingly, the portion of the Randolph rule which

indicates that standing is limited to the objecting co-tenant

was based upon established federal law which has not been

followed under our State Constitution.

11
 B.

The State maintains that a co-tenant’s consent is valid

against an absent and objecting co-tenant because the absent co-

tenant “assumed the risk by living with others [who] . . . could

grant police consent to enter and search.” United States v.

Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974).

Furthermore, the United States Supreme Court’s decision in

Randolph established that a co-tenant must be physically present

in order for his or her refusal to consent to be valid.

The State maintains that the Randolph rule should be

limited to a common-authority tenant who is physically present

and contesting the search’s validity. Accordingly, it should

not apply to cases where the evidence obtained over disputed

consent is used against a non-objecting co-inhabitant. The

State contends that a rule limiting the constitutional

effectiveness of one’s objection to only the objector best

protects the diverging interests that are at stake in cases like

the one before the Court. The State further contends that a

different result would negate the validly accorded consent of a

co-tenant to a search and result in police uncertainty about

their authority to search.

Further, the State contends that Marcus’s statements that

police could not come into his home and should get off his

property are irrelevant under Randolph because the police never

12
requested his consent to search. The State also emphasizes that

no evidence exists to support the suggestion that police removed

Marcus or defendant for the purpose of thwarting denial of

consent. Moreover, forty-five minutes elapsed between Marcus’s

statements and Karen’s consent, thus undermining the contention

that Marcus’s statements should be considered an “immediate

challenge” to Karen’s consent.

The State argues that Marcus’s removal from the scene was

proper, and his initial objection lost its force once he was

validly arrested and detained. Another co-tenant may later

consent to a search of a shared premises because social custom

does not vest the objection with perpetual effectiveness.

Finally, the State contends that, even in light of Marcus’s

objection, the police acted reasonably because there was

probable cause to believe a loaded firearm was inside the

trailer where Karen and three young children were present. The

State refers to Justice Breyer’s concurrence from Randolph,

stating that “the risk of an ongoing crime or other exigent

circumstance can make a critical difference” and would thus make

it reasonable for police to enter “even in the face of direct

objection by the other.” Randolph, supra, 547 U.S. at 126-27,

126 S. Ct. at 1530, 164 L. Ed. 2d at 229-30 (Breyer, J.,

concurring).

IV.

13
 Appellate courts reviewing a grant or denial of a motion to

suppress must uphold the factual findings underlying the trial

court’s decision so long as those findings are supported by

sufficient credible evidence in the record. State v. Elders,

192 N.J. 224, 243 (2007). We accord deference to those factual

findings because they “are substantially influenced by [an]

opportunity to hear and see the witnesses and to have the ‘feel’

of the case, which a reviewing court cannot enjoy.” Id. at 244

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Thus,

appellate courts should reverse only when the trial court’s

determination is “so clearly mistaken ‘that the interests of

justice demand intervention and correction.’” Ibid.

A trial court’s interpretation of the law, however, and the

consequences that flow from established facts are not entitled

to any special deference. State v. K.W., 214 N.J. 499, 507

(2013). Therefore, a trial court’s legal conclusions are

reviewed de novo. State v. Gandhi, 201 N.J. 161, 176 (2010).

Here, defendant accepts the facts as found by the trial court

but urges that the governing law dictates that Karen’s consent

did not permit the warrantless search of his bedroom.

A.

New Jersey has retained the automatic standing rule of

Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d

14
697 (1960), overruled by United States v. Salvucci, 448 U.S. 83,

100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). Under the automatic

standing rule, virtually all defendants have standing to contest

a search or seizure by police where they have either “a

proprietary, possessory or participatory interest in either the

place searched or the property seized,” or if “possession of the

seized evidence at the time of the contested search is an

essential element of guilt.” Alston, supra, 88 N.J. at 228. In

this way, our courts have construed the New Jersey Constitution

as affording New Jersey citizens greater protection against

unreasonable searches and seizures than accorded under the

United States Constitution. State v. Johnson, 193 N.J. 528, 541

(2008).

The conclusion that a defendant has standing to challenge a

search on state constitutional grounds is independent of and

unrelated to whether that defendant has a reasonable expectation

of privacy in the place searched or item seized. Alston, supra,

88 N.J. at 225-27; see State v. De La Paz, 337 N.J. Super. 181,

193 (App. Div.) (holding that absence of evidence at suppression

hearing regarding defendant’s status and his expectation of

privacy in place searched does not preclude determination of

whether defendant’s state constitutional rights were violated by

warrantless search), certif. denied, 168 N.J. 295 (2001). The

rule’s purpose is to avoid the need to sacrifice a defendant’s

15
Fifth Amendment rights and admit to criminal activity in order

to assert his Fourth Amendment rights to challenge the search or

seizure. Johnson, supra, 193 N.J. at 551.

Here, defendant clearly had a possessory interest in the

property seized. Alston, supra, 88 N.J. at 228-29. Possession

of the handgun is an essential element of several offenses faced

by defendant. Therefore, under New Jersey law, defendant has

automatic standing to challenge the search and seizure of the

firearm and ammunition.

B.

Both the United States Constitution and the New Jersey

Constitution guarantee the right of people to be free of

unreasonable searches and seizures in their homes. U.S. Const.

amend. IV; N.J. Const. art. I, ¶ 7. “Indeed, ‘physical entry of

the home is the chief evil against which the wording of the

Fourth Amendment is directed.’” State v. Vargas, 213 N.J. 301,

313 (2013) (quoting United States v. U.S. Dist. Court, 407 U.S.

297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972)).

Thus, “our jurisprudence expresses a clear preference for police

officers to secure a warrant before entering and searching a

home.” State v. Brown, 216 N.J. 508, 527 (2014). Warrantless

searches are presumptively invalid. Ibid.; State v. Frankel,

179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108,

160 L. Ed. 2d 128 (2004), overruled in part by State v. Edmunds,

16
211 N.J. 117 (2012). When a defendant challenges a warrantless

search of a home, the State bears the burden of proving by a

preponderance of the evidence that the search falls within one

of the recognized exceptions to the warrant requirement. Brown,

supra, 216 N.J. at 527.

Federal and New Jersey courts recognize the consent to

search exception to the warrant requirement. Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L.

Ed. 2d 854, 858 (1973); State v. Domicz, 188 N.J. 285, 305

(2006). The Fourth and Fourteenth Amendments of the United

States Constitution require that consent must be voluntarily

given and not the result of duress or coercion, express or

implied. Schneckloth, supra, 412 U.S. at 248, 93 S. Ct. at

2059, 36 L. Ed. 2d at 875; Domicz, supra, 188 N.J. at 307. To

determine whether a person voluntarily consented to a search,

the focus of the analysis is “whether a person has knowingly

waived [his or her] right to refuse to consent to the search.”

Domicz, supra, 188 N.J. at 308; see State v. Johnson, 68 N.J.

348, 353-54 (1975) (establishing standard of voluntary consent

under state constitution “as knowing and intelligent waiver,

which includes knowledge of right to refuse consent”). The

State has the burden of proving consent was given freely and

voluntarily. Schneckloth, supra, 412 U.S. at 248, 93 S. Ct. at

2059, 36 L. Ed. 2d at 875; Elders, supra, 192 N.J. at 246.

17
 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. Matlock,

supra, 415 U.S. at 171, 94 S. Ct. at 993, 39 L. Ed. 2d at 250.

In Matlock, the defendant was arrested outside of his home. Id.

at 166, 94 S. Ct. at 991, 39 L. Ed. 2d at 247. Without asking

the defendant, police knocked on the door and asked the

defendant’s wife for consent to search the home. Ibid. The

wife consented, and the defendant sought to suppress the

evidence recovered during the search. Id. at 166-69, 94 S.

Ct. 991-92, 39 L. Ed. 2d 247-48.

In explaining its rationale supporting the effectiveness of

the wife’s consent, the United States Supreme Court stated:

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 171 n.7, 94 S. Ct. at 993 n.7, 39 L.
Ed. 2d at 250 n.7 (citations omitted).]

The Court concluded that the defendant’s wife could have

had actual authority to consent to a search but remanded to

determine if the government presented sufficient evidence

18
establishing the wife’s mutual control and use of the shared

space. Id. at 177, 94 S. Ct. at 996-97, 39 L. Ed. 2d at 253.

In Randolph, supra, the United States Supreme Court

addressed whether the consent to search of one co-tenant

overrides the objection of another physically present co-tenant.

547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208. The Court

held that a warrantless search of a shared dwelling for evidence

against a co-inhabitant over the express refusal of consent by a

physically present resident cannot be justified as reasonable as

to him on the basis of consent given to the police by another

resident. Id. at 120, 126 S. Ct. at 1526, 164 L. Ed. 2d at

226.

The Court emphasized that “[t]he constant element in

assessing . . . reasonableness in the consent cases . . . is the

great significance given to widely shared social expectations.”

Id. at 111, 126 S. Ct. at 1521, 164 L. Ed. 2d at 220. The

reasonableness of a search is “a function of commonly held

understanding about the authority that co-inhabitants may

exercise in ways that affect each other’s interest.” Ibid.

However, “there is no common understanding that one co-tenant

generally has a right or authority to prevail over the express

wishes of another, whether the issue is the color of the

curtains or invitations to outsiders.” Id. at 114, 126 S. Ct.

at 1523, 164 L. Ed. 2d at 222.

19
 The Supreme Court, however, distinguished between an

objector who is physically present and a potential objector who

is nearby but not part of the conversation. Id. at 121, 126 S.

Ct. at 1527, 164 L. Ed. 2d at 226. It stated that “if a

potential defendant with self-interest in objecting is in fact

at the door and objects, the co-tenant’s permission does not

suffice for a reasonable search, whereas the potential objector,

nearby but not invited to take part in the threshold colloquy,

loses out.” Ibid. The majority noted that the distinction was

formalistic, ibid., but stressed that

[s]o long as there is no evidence that the
police have removed the potentially
objecting tenant from the entrance for the
sake of avoiding a possible objection, there
is practical value in the simple clarity of
complementary rules, one recognizing the co-
tenant’s permission when there is no fellow
occupant on hand, the other according
dispositive weight to the fellow occupant’s
contrary indication when he expresses it.

[Id. at 121-22, 126 S. Ct. at 1527, 164 L.
Ed. 2d at 226-27.]

Recently, the Supreme Court underscored the limited scope

of Randolph in Fernandez, supra, 571 U.S. ___, 134 S. Ct. 1126,

188 L. Ed. 2d 25, by refusing to extend its ruling in Randolph

to a situation in which a co-occupant consented to a search of

the home she shared with the defendant after his arrest and

removal from the scene. In Fernandez, the defendant was charged

with various offenses, including robbery, and moved to suppress

20
the evidence seized from the search based on his prior refusal

to consent to a search of the apartment. Id. at ___, 134 S. Ct.

at 1131, 188 L. Ed. 2d at 32. In affirming the denial of his

motion to suppress, the Court reiterated that the consent of one

resident of jointly occupied premises is generally sufficient to

justify a warrantless search. Id. at ___, 134 S. Ct. at 1133,

188 L. Ed. 2d at 34. The Court characterized the rule in

Randolph as “a narrow exception,” and emphasized that the rule

is premised on the physical presence of the objecting occupant.

Ibid.

In Fernandez, the police arrived at the residence in

pursuit of the defendant, who had been identified as a

participant in an armed robbery. Id. at ___, 134 S. Ct. at

1130, 188 L. Ed. 2d at 31. As they entered the building, police

heard screams coming from an apartment. Ibid. A woman showing

signs of recent injury answered a knock by police. Ibid. The

defendant appeared at the door and refused consent for police

entry to conduct a protective sweep. Ibid. Suspecting the

defendant of assaulting the woman, police arrested the defendant

and removed him from the apartment. Ibid. Approximately an

hour later, police returned to the apartment, told the woman

that the defendant had been arrested, and asked for and received

oral and written consent to search the apartment. Ibid. The

search uncovered gang paraphernalia, a knife, clothing matching

21
the description of the robbery victim, and ammunition. Id. at

___, 134 S. Ct. at 1130-31, 188 L. Ed. 2d at 31.

The Supreme Court characterized the discussion in Randolph

of the effect of removal of the objecting occupant by police as

dictum. Id. at ___, 134 S. Ct. at 1134, 188 L. Ed. 2d at 35.

The Supreme Court explained that this discussion “is best

understood . . . to refer to situations in which the removal of

the potential objector is not objectively reasonable,” and held

“that an occupant who is absent due to a lawful detention or

arrest stands in the same shoes as an occupant who is absent for

any other reason.” Ibid.

The Court also declined to place any limits on how long an

objection may be effective. Id. at ___, 134 S. Ct. at 1135, 188

L. Ed. 2d at 35-36. Indeed, the Court noted that a durational

limit divorced from the objecting occupant’s presence is not

consistent with the narrow exception crafted by Randolph. Ibid.

In New Jersey, as under federal law, consent may be

obtained from a third party so long as the consenting party has

the authority to bind the other party. State v. Suazo, 133 N.J.

315, 320 (1993); State v. Crumb, 307 N.J. Super. 204, 242 (App.

Div. 1997), certif. denied, 153 N.J. 215 (1998). In order to

determine whether valid consent to search an area was given by a

third party, the State must prove the third party possessed

common authority over or other sufficient relationship to the

22
premises or the effects sought to be inspected. State v.

Douglas, 204 N.J. Super. 265, 276 (App. Div.) (quoting Matlock,

supra, 415 U.S. at 168-70, 94 S. Ct. at 992-93, 39 L. Ed. 2d at

248-50), certif. denied, 102 N.J. 378 (1985); see also Illinois

v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801, 111 L.

Ed. 2d 148, 161 (1990) (holding police had reasonable basis to

believe that former girlfriend and roommate, who invited police

to search defendant’s apartment and produced key to premises,

had control of premises to authorize entry and search).

Further, a search may still be effective even where the occupant

requests that no consent be given by the co-occupant. Douglas,

supra, 204 N.J. Super. at 277 (citing 2 W. LaFave, Search and

Seizure § 8.3, 710-11 (1978)). No New Jersey cases have

considered the constitutionality of a search as to a third

tenant against whom the government wished to use evidence seized

after a search with consent of one co-tenant subject to the

contemporaneous objection of another.

V.

We acknowledge that defendant has standing to challenge the

consent to search granted by his mother. The record reveals

that he stayed on an occasional but recurring basis in the home

of his mother and stepfather, and occupied the same bedroom in

the house whenever he visited.

23
 The focus of this appeal is whether the strenuously

expressed statements by defendant’s stepfather that the police

should remove themselves immediately from the premises overrides

the later consent given by defendant’s mother. We conclude the

rule announced in Randolph, supra, does not render the consent

given by defendant’s mother nugatory and the search

unreasonable.

First, Randolph is a very narrow holding. The Supreme

Court recognized that it was drawing a fine and formal line but

justified the ruling as providing “practical value in the simple

clarity of complementary rules, one recognizing the co-tenant’s

permission when there is no fellow occupant on hand, the other

according dispositive weight to the fellow occupant’s contrary

indication when he expresses it.” 547 U.S. at 121, 126 S. Ct.

at 1526, 164 L. Ed. 2d at 226-27.

The Supreme Court also emphasized that a search predicated

on the consent of one co-tenant over the objection of another

co-tenant renders the warrantless search constitutionally infirm

as to the objecting co-tenant. Id. at 120, 126 S. Ct. at 526,

164 L. Ed. 2d at 225-26. Thus, even in the face of Marcus’s

demand that the police leave his property, Karen’s consent does

not render the search constitutionally unreasonable as to

defendant. We also note that neither Detective Acton nor Karen

testified that Marcus renewed his objection to the police

24
presence at the time he agreed to leave the house almost an hour

after his initial objections.

In addition, despite defendant’s authority to consent or

refuse consent to a warrantless search of the house, the record

clearly reveals that defendant agreed to leave the house after

protracted telephonic discussions between the police and Marcus

and then Karen. The record provides no support that defendant’s

removal and Marcus’s earlier exit from the house were designed

to prevent either occupant from objecting to the warrantless

search of the room defendant occupied over this holiday weekend.

Indeed, the police had probable cause to arrest defendant for

the earlier shooting and to detain Marcus once he left the

house.

Finally, any doubt that police conduct did not comport with

the limited holding in Randolph is resolved by Fernandez. As

recognized in Fernandez, supra, an occupant who is absent due to

a lawful detention or arrest is in the same position as an

occupant who is absent for any reason. 571 U.S. at ___, 134 S.

Ct. at 1134, 188 L. Ed. 2d at 35. Thus, we are not confronted

with the exception to the fine and formal rule announced in

Randolph, supra, of police removal of an objecting co-tenant to

avoid a possible refusal. 547 U.S. at 121, 126 S. Ct. at 121-

22, 164 L. Ed. 2d at 227. Moreover, by virtue of his removal

from the immediate scene, Marcus’s earlier objection to police

25
was no longer effective, Fernandez, supra, 571 U.S. at ___, 134

S. Ct. at 1135-36, 164 L. Ed. 2d at 35-37, and Karen had full

authority to consent to a search of her home, id. at ___, 134 S.

Ct. at 1137, 164 L. Ed. 2d at 38.

Finally, this Court must recognize, as did the motion court

and the appellate panel, that the circumstances surrounding the

consent obtained from Karen were infused with exigency. To be

sure, the State did not rely on exigency to support the validity

of the consent search of the Marcus house. Nevertheless, once

police located defendant and received information from his

girlfriend that corroborated the earlier report of a shooting

and that the gun may have been in the house, the police were

faced with a critical situation. The Marcus house was small, no

more than 880 square feet, and located in close proximity to

other dwellings. Once defendant’s girlfriend, Marcus, and

finally defendant left the dwelling, Karen remained inside with

three very young children in close proximity to a loaded gun.

See De La Paz, supra, 337 N.J. Super. at 195-96 (identifying

several factors that indicate exigent situation justifying

warrantless entry).2

2
We also conclude that the motion judge’s finding that Karen’s
consent to search her house was knowing and voluntary is
consistent with governing law. The entire incident, lasting
from 11:30 p.m. on July 3 to 2:30 a.m. on July 4, was
undoubtedly stressful. Police had arrived at her home seeking
her son, who dove under a bed to hide from police. Karen was
26
 Reasonableness is the touchstone of the Fourth Amendment

analysis. Rodriguez, supra, 497 U.S. at 185, 110 S. Ct. at

2800, 111 L. Ed. 2d at 159. The record in this appeal attests

to a reasonable police response to a violent episode calculated

to obtain the expeditious arrest of the shooter and seizure of a

potentially loaded weapon. There is no suggestion that the

police contrived the absence of any occupant to frustrate a

physically present occupant’s ability to consent to a search of

the home. The police procured from the remaining adult occupant

a knowing and voluntary consent to search the residence in which

the suspected shooter was staying and the warrantless search was

reasonable under the circumstances of this appeal.

VI.

The judgment of the Appellate Division is, therefore,

affirmed.

clearly fearful that police would rip apart her new home, and
she was also extremely annoyed that her son had brought a gun
into her home. She also had to cope with three young children
who were emotionally distraught by the commotion caused by the
arrival of the police. Nevertheless, the record clearly
supports the determination of the Appellate Division that the
police requested her consent only after they had been in
communication with her for a significant period of time. Her
will had not been overborne, her decision was not rushed, and
she knew she could refuse consent. In fact, the record reveals
that the police communicated with Karen in a deliberate but firm
manner that seemed to be calculated to permit a reasonable and
timely resolution to a very tense and possibly explosive
situation.

27
 CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and
PATTERSON, and JUDGE RODRÍGUEZ (temporarily assigned) join in
JUDGE CUFF’s opinion.

28
 SUPREME COURT OF NEW JERSEY

NO. A-37 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL W. LAMB,

Defendant-Appellant.

DECIDED May 19, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6

1