State v. Nathan Shaw State v. Keon L. Bolden (078247) (Monmouth County and Statewide)

SYLLABUS

This syllabus is not part of the Court’s opinion. 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
Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Nathan N. Shaw (A-33/34-16) (078247)

Argued January 28, 2019 -- Decided May 13, 2019

TIMPONE, J., writing for the Court.

In this case, the Court considers whether evidence found in a motel room and vehicle
and defendant Nathan Shaw’s statement to police should have been suppressed.

Jasmine Hanson was staying at the Crystal Inn motel in Neptune City. She called the
front desk to complain she had been bitten by bed bugs. The motel owner inspected
Hanson’s room using his pass key. He saw a plastic bag containing what he suspected were
narcotics and called the police. Officer Jason Rademacher had the motel owner lead him to
Hanson’s room where, again using his pass key, the motel owner unlocked the door for the
officer to enter. Inside, Rademacher saw what appeared to be drugs, as well as a measuring
cup and scale. A criminal history check on Hanson revealed an outstanding traffic warrant
and a recently issued traffic summons on a 2012 black Chevrolet Tahoe, and its plate number.

Rademacher transported the evidence to the station and returned in an unmarked
vehicle to wait for Hanson’s arrival. Shortly thereafter, the black Tahoe pulled into a parking
space. The front passenger was Keon Bolden, Hanson was in the driver’s seat, and in the
back seat were Shakera Dickerson and Shaw. Rademacher arrested Hanson. The officer
asked to search the Tahoe; Hanson refused consent. A drug-detection canine was brought to
perform an exterior sniff of the vehicle. The officers conducted warrant checks on the
remaining passengers. Only Dickerson’s came back positive. She was arrested and placed in
a second patrol car. Shaw and Bolden were patted down and seated in separate patrol cars,
uncuffed. Hanson again refused to consent to a search of the vehicle.

The handler led the canine to the Tahoe. Shaw told an officer that he had a bag of
marijuana in the car, and the canine alerted to the presence of narcotics. Shaw was arrested.
An officer told Hanson that Shaw admitted he had marijuana in the vehicle and, at that point,
she consented to the vehicle search. She signed a consent-to-search form, but did not initial
the line attesting that she gave her consent free of coercion.

The officers found drugs in the car and within a tote bag on the back seat of the car.
All four passengers were charged with multiple counts of possession and possession with
intent to distribute the drugs found in both the motel room and the tote bag.

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 All defendants moved to suppress the drug evidence seized from the motel room and
the Tahoe. The motion court denied their suppression motion. Shaw pleaded guilty to one
count of third-degree possession of CDS with intent to distribute.

The Appellate Division affirmed the denial of Shaw’s motion to suppress the contents
of the tote bag, finding he lacked standing to challenge its search, but reversed the denial of
his motion to suppress his statement made to police while in their custody. In response to an
argument by a co-defendant, the panel also found that the warrantless search of the motel
room was illegal.

The Court granted Shaw’s petition for certification, 228 N.J. 506 (2017), and the
State’s cross-petition, 228 N.J. 518 (2017). Following oral argument on November 8, 2017,
the Court ordered this case remanded to the Law Division for the court “to address the
application of the inevitable discovery doctrine and the independent source doctrine to the
admissibility of the evidence seized in the motor vehicle.”

On remand, the parties presented no further testimony. Relying on the record as it had
been developed at the suppression hearing, the court determined the inevitable discovery and
the independent source doctrines both applied and that the evidence was admissible.

HELD: Defendant’s confession and the drug evidence must be suppressed.

1. Under the third-party intervention doctrine, a person’s reasonable expectation of privacy is
not violated by the actions or search of a private actor. See State v. Wright, 221 N.J. 456, 459
(2015). Fourth Amendment protections apply only to governmental action, and a subsequent
search by law enforcement -- so long as it does not exceed the scope of the private search --
may not require a warrant if it does not infringe any constitutionally protected privacy interest
that had not already been frustrated as a result of the private conduct. The doctrine
traditionally applied to searches of objects either physically conveyed or reported to the
police. See id. at 459, 468-69. In Wright, the Court held that the doctrine could not be
applied to searches of private dwellings -- including rented apartments -- under our State
Constitution. Id. at 476. Although Wright discussed apartments, its reasoning applies with
equal force to motel rooms. Where a motel owner or employee finds contraband in a guest’s
room, “the police can use that information to obtain a search warrant and then conduct a
search.” Id. at 478-79. “In the time it takes to get the warrant, police officers can secure the
[motel room] from the outside, for a reasonable period of time, if reasonably necessary to
avoid any tampering with or destruction of evidence.” Id. at 478. Here, the motel search was
unconstitutional and the illegal fruits of that search must be suppressed. (pp. 17-24)

2. Police must have particularized suspicion in order to conduct an investigatory stop, and
the duration of an investigative stop must be limited in time and scope to the purpose that
justified the stop in the first place. If the officer’s conduct is more intrusive than necessary,
the investigative stop turns into a de facto arrest. Once it was determined that Shaw was

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unarmed and had no outstanding warrants, there was no particularized suspicion that Shaw
was engaged in criminal activity that would justify Shaw’s further detention. Under the
circumstances here, isolating Shaw in the back of a patrol car despite a negative warrant
check was a de facto and an unlawful arrest. (pp. 24-27)

3. It was during that period of unlawful detention that Shaw stated there was marijuana in the
bag. To decide whether to suppress a statement obtained after an unlawful arrest, courts
consider three factors: the temporal proximity of the arrest and the confession, the presence
of intervening circumstances, and, particularly, the purpose and flagrancy of the official
misconduct. Here, Shaw’s confession was a product of his unlawful de facto arrest and must
be suppressed. Shaw’s confession occurred during his unlawful detention, and the Court is
not persuaded that the presence of the drug-detection canine purged the taint of the illegal
arrest. Shaw was never informed of his right to remain silent and was held without
individualized suspicion. Although his confession was not made in response to an
interrogation, the Court is not convinced it was a product of his own free will. (pp. 27-30)

4. The Court next addresses Shaw’s standing to challenge the search of the tote bag.
Whenever a defendant is charged with committing a possessory drug offense -- as in this case
-- standing is automatic, unless the State can show that the property was abandoned or the
accused was a trespasser. The tote bag was found in the back seat of a car that had four
occupants. They were ordered out of the car. The State simply has not established that the
bag was abandoned property. The trespasser exception has even less relevancy. The record
is devoid of any evidence that Shaw put the drugs in the tote bag without Dickerson’s
knowledge. Shaw had automatic standing to challenge the search of the bag. (pp. 30-33)

5. The Court thus considers whether the search fell within the consent-search exception to
the warrant requirement. An individual’s voluntary consent to search a constitutionally
protected area eliminates the need for law enforcement to obtain a warrant. When Hanson
consented to the search, she had already been arrested and handcuffed. The officers asked
her multiple times for consent to search the vehicle. She relented only after an officer
informed her of Shaw’s unlawfully obtained confession. The warrantless search of the Tahoe
was unconstitutional and the evidence seized through that search is therefore subject to
suppression. Nor can the evidence come in through Shaw’s confession. (pp. 34-36)

6. The State failed to make the necessary showing under either inevitable discovery or the
independent source exceptions to the exclusionary rule. Accordingly, the unconstitutionally
obtained evidence remains suppressed. (pp. 36-39)

The judgment of the Appellate Division is affirmed in part and reversed in part
and the matter is remanded to the trial court.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’S opinion.

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 SUPREME COURT OF NEW JERSEY
A-33/34 September Term 2016
078247

State of New Jersey,

Plaintiff-Respondent/
Cross-Appellant,

v.

Nathan N. Shaw, a/k/a Dion Shaw,
a/k/a Leroy Anderson,

Defendant-Appellant/
Cross-Respondent.

State of New Jersey,

Plaintiff,

v.

Keon L. Bolden,

Defendant.

On certification to the Superior Court,
Appellate Division.

Argued Decided
January 28, 2019 May 13, 2019

Margaret McLane, Assistant Deputy Public Defender,
argued the cause for appellant/cross-respondent (Joseph

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 E. Krakora, Public Defender, attorney; Margaret McLane,
of counsel and on the briefs).

Frank Muroski, Deputy Attorney General, argued the
cause for respondent/cross-appellant (Gurbir S. Grewal,
Attorney General, attorney; Frank Muroski and Jenny M.
Hsu, Deputy Attorney General, of counsel and on the
briefs).

Alexander Shalom argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation and
Rutgers Constitutional Rights Clinic Center for Law and
Justice, attorneys; Alexander Shalom, Edward L. Barocas
and Jeanne M. LoCicero, of counsel and on the briefs,
and Ronald K. Chen on the briefs).

JUSTICE TIMPONE delivered the opinion of the Court.

This appeal concerns a cascade of missteps by police, resulting in

several constitutional violations. The case begins with the warrantless search

of a motel room, followed by the extended detention of automobile passengers

without reasonable suspicion. One defendant then involuntarily consents to a

search of an automobile, culminating in the warrantless search of a tote bag

found in the car in which another defendant was a passenger. The State raises

a number of well-expressed arguments in support of the admissibility of the

evidence obtained from the searches. Nevertheless, the record before us

compels the suppression of all evidence seized.

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 To provide an overview, we will begin our analysis by considering the

application of the third-party intervention doctrine -- a recognition that law

enforcement need not obtain a warrant to “reexamine property that has been

searched by a private actor and presented to law enforcement” under certain

circumstances, State v. Wright, 221 N.J. 456, 479 (2015) -- to the warrantless

search of a motel room. Next, we examine whether a confession

spontaneously made during an extended detention not predicated on

individualized reasonable suspicion must be suppressed under the

circumstances. Thereafter, we review the events surrounding the search of a

tote bag and assess whether a passenger had standing to challenge the search

of a tote bag that ultimately proved to belong to another passenger. We

consider whether the principles of the trespasser and abandoned property

exceptions to automatic standing apply under these circumstances, and whether

the driver’s consent to the vehicle search justified the search of the tote bag.

Lastly, we address the applicability of the inevitable discovery doctrine and

independent source rule to this case.

For the reasons stated below, we hold that the police’s warrantless

search of the motel room ran afoul of the Fourth Amendment to the U.S.

Constitution and Article I, Section 7 of the New Jersey Constitution. We

further find the third-party intervention doctrine does not apply to motel rooms

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and that the State’s warrantless entry into the room was unlawful. We also

find the defendant’s extended detention constituted a de facto arrest and that

the State failed to show his confession was not a by-product of that arrest.

Concerning the tote bag, we find defendant had automatic standing, the

trespass and abandoned property exceptions do not apply, and the State failed

to show the voluntariness of the driver’s consent. Finally, we will not apply

the inevitable discovery or independent source exceptions to the exclusionary

rule because on remand the State chose not to develop the record on those

issues.

With that, we find defendant’s confession and the drug evidence must be

suppressed.

I.

A.

The facts are culled from the testimony elicited at the suppression

hearing. Florida resident Jasmine Hanson was staying at the Crystal Inn motel

in Neptune City, New Jersey. She called the front desk to complain she had

been bitten by bed bugs and demanded a full refund. She was referred to the

motel’s owner. Later that afternoon, the motel owner inspected Hanson’s

room. When no one answered his knocks, he entered her room using his pass

key. In search of bed bugs, the motel owner pulled a bed comforter down,

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revealing a plastic bag containing what he suspected were narcotics. The

motel owner called the police and reported his suspicion.

Upon his arrival, Officer Jason Rademacher had the motel owner lead

him to Hanson’s room where, again using his pass key, the motel owner

unlocked the door for the officer to enter. Inside, Rademacher saw a clear

plastic bag containing what appeared to him to be two other clear plastic bags

of crack cocaine and several small glassine bags of heroin. Nearby, the officer

saw a jar of what he suspected was synthetic marijuana on the nightstand and a

glass measuring cup containing a spoon and a white, rock-like substance in a

drawer. Next to the measuring cup was a black scale dusted with a white

powder.

Rademacher contacted his supervisor, who sent Sergeant William

Kirchner to the motel as backup. The officer requested a criminal history

check on Hanson. It revealed an outstanding traffic warrant and a recently

issued traffic summons on a 2012 black Chevrolet Tahoe, and its plate number.

Rademacher collected all the drug evidence and photographed Hanson’s motel

room.

Rademacher transported the evidence to the station and returned in an

unmarked vehicle to wait for Hanson’s arrival. Shortly thereafter, the black

Tahoe pulled into a parking space. The front passenger, Keon Bolden,

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immediately exited the vehicle. Rademacher drew his weapon and, keeping it

at his side, ordered Bolden back into the Tahoe. Hanson was in the driver’s

seat. In the back seat were Shakera Dickerson and Nathan Shaw. Rademacher

stood by the driver’s door awaiting backup.

At least three units arrived on the scene. Hanson produced her license

and the Tahoe’s rental agreement. Rademacher informed Hanson she had an

active warrant and arrested her. The police patted Hanson down, handcuffed

her, and placed her in the back of a patrol car. The officer asked to search the

Tahoe; Hanson refused consent. Rademacher and Kirchner explained that a

drug-detection canine would be brought to perform an exterior sniff of the

vehicle. Hanson did not change her mind. Rademacher testified that they

waited until all of the occupants of the Tahoe were removed from the vehicle

before they requested the canine. The canine’s handler testified that when he

arrived there were still occupants in the vehicle, and he had to wait for them to

be removed before he could conduct the exterior sniff. The trial court adopted

the handler’s narrative, while the Appellate Division endorsed the officer’s

version of events.

The officers conducted warrant checks on the remaining passengers.

Only Dickerson’s warrant check came back positive. She was arrested and

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placed in a second patrol car. Shaw and Bolden were patted down and each

seated in separate patrol cars, uncuffed.

The canine’s handler attempted to explain the sniff procedure to Hanson;

Hanson refused to speak to him and again refused to consent to a search of the

vehicle. The handler led the canine to the Tahoe. During the sniff, Shaw told

an officer that he had a bag of marijuana in the car. The canine alerted to the

presence of narcotics. Shaw was arrested. An officer told Hanson that Shaw

admitted he had marijuana in the vehicle and, at that point, she consented to

the vehicle search. She signed a consent-to-search form, but did not initial the

line attesting that she gave her consent free of coercion.

Rademacher searched the car, immediately finding the brown bag

containing marijuana. Meanwhile, other officers found a bag of synthetic

marijuana and a box of plastic bags in the center console. On the backseat, in

between where Dickerson and Shaw were sitting, Rademacher found a green

and white tote bag. From inside the tote bag he recovered 113 stamped

glassine bags of heroin, a plastic bag containing suspected crack cocaine, and a

purse in which he found a plastic bag of what appeared to be marijuana.

Twenty-four of the glassine bags of heroin were stamped in red ink with the

phrase “Limit 50.” That mark resembled the stamp found on the glassine bags

of heroin in Hanson’s motel room.

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 Laboratory testing confirmed the suspected drugs were marijuana, crack

cocaine, and heroin. All four passengers were charged with multiple counts of

possession and possession with intent to distribute the drugs found in both the

motel room and the tote bag.

B.

All defendants moved before the Superior Court, Law Division to

suppress the drug evidence seized from the motel room and the Tahoe.

After finding that the charged defendants had automatic standing to

challenge the search, the motion court denied their suppression motion with

the following findings:

(1) The motel owner’s initial entry into Hanson’s motel room did not

violate the Fourth Amendment because the Fourth Amendment

affords individuals protection only from unreasonable state action --

not from private individuals like the motel owner. The court found

the motel owner “surrendered that evidence to the officer by reporting

the drugs and asking for someone to come and investigate.”

(2) The initial stop of the Tahoe was lawful due to Hanson’s outstanding

traffic warrant, and the stop did not turn into a de facto arrest of Shaw

or Bolden because the officers had “a reasonable and articulable basis

that criminal activity was afoot to continue the detention after

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 completion of the background checks based on the totality of the

circumstances including[] the motel room filled with suspected

narcotics, the out-of-state driver’s license, and the brief duration of

the rental car agreement.” Highlighting Shaw and Bolden had not

been handcuffed, the court found it reasonable to place them in patrol

cars during the canine sniff and found the extension of the stop

minimal because the drug-detection canine was already on the scene

when the passengers were removed.

(3) Hanson’s consent justified a search of the vehicle and all of its

contents, including the tote bag. Distinguishing State v. Suazo, 133

N.J. 315, 322 (1993), the court emphasized that no one claimed

ownership of the tote bag, thus it was reasonable for the officer to

assume it was Hanson’s and that she had consented to its search. The

court remarked that the location of the tote bag was insufficient to put

Rademacher on notice that the passengers had a superior privacy

interest in it.

C.

Shaw and Bolden entered guilty pleas; Shaw pleaded guilty to one count

of third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-

5(b)(3), and Bolden pleaded guilty to one count of first-degree possession of

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CDS, N.J.S.A. 2C:35-5(b)(1), and one count of possession of CDS with intent to

distribute within five hundred feet of certain public property, N.J.S.A. 2C:35-

7.1. On appeal, Shaw argued his statement must be suppressed because it was

the fruit of an unlawful arrest, and that the drug evidence from the Tahoe must

be suppressed because Hanson did not have the authority to consent to a search

of the tote bag or because her consent was a product of his unlawful arrest.

Bolden asserted that the drug evidence from Hanson’s motel room must

be suppressed because Rademacher’s warrantless search was illegal.

The Appellate Division first addressed Bolden’s argument. The State

abandoned its initial assertion that the motel search was exempt under the

third-party intervention doctrine and, instead, argued Bolden did not have

standing to challenge the search of Hanson’s motel room because there was no

evidence establishing that he had an expectation of privacy in Hanson’s room.

The appellate panel noted that the inapplicability of the third-party

intervention doctrine only crystalized after this Court’s decision in Wright, and

found a remand proper to give Bolden the opportunity to establish a reasonable

expectation of privacy in Hanson’s motel room. The Appellate Division

vacated the denial of Bolden’s suppression motion and ordered the case

remanded.

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 Turning to Shaw’s arguments, the Appellate Division found the

extension of his initial detention was unlawful because it exceeded the dictates

of Terry v. Ohio, 392 U.S. 1 (1968). The panel highlighted that the trial court

made no findings as to Shaw except to hold that he was in a car with Hanson,

who had an outstanding arrest warrant and was the registered guest of the

motel room where CDS was discovered. The panel found that there was no

reason to continue to detain Shaw once the warrant search on him came up

empty and without any evidence of a connection to Hanson’s motel room.

The panel examined the circumstances around Shaw’s admission that he

had marijuana in the vehicle, emphasizing that Shaw was secured in a police

vehicle for an extended period of time without cause and was not free to leave.

Based on those findings, the panel determined the admission to be the fruit of

an illegal detention that necessitated suppression under State v. Johnson, 118

N.J. 639, 653 (1990).

The panel concluded Hanson’s consent to the search of the Tahoe was

involuntary and the trial court erred by not considering the guidelines outlined

in State v. King, 44 N.J. 346, 352-53 (1965). The appellate panel noted that,

had the trial court considered the King factors, it would have recognized the

presence of an abundance of factors suggesting coercion that could not be

overcome by Hanson’s incomplete consent form.

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 Lastly, having found Hanson’s consent invalid, the Appellate Division

concluded that Shaw did not have standing to challenge the search of the tote

bag. Without evidence that any of the passengers claimed ownership of the

tote bag or objected to its search, the panel found Shaw without a protected

privacy interest in its contents.

D.

We granted Shaw’s petition for certification, 228 N.J. 506 (2017), and

the State’s cross-petition, 228 N.J. 518 (2017). We also granted the American

Civil Liberties Union of New Jersey (ACLU) amicus curiae status.

Following oral argument on November 8, 2017, we ordered this case

remanded to the Law Division for the court “to address the application of the

inevitable discovery doctrine and the independent source doctrine to the

admissibility of the evidence seized in the motor vehicle.” In that order we

noted that the remand court could take testimony and make new fact findings.

E.

On remand, the parties presented no further testimony. Instead, the court

relied on the record as it had been developed at the suppression hearing. The

court determined the inevitable discovery doctrine and the independent source

doctrine both applied.

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 Beginning with the inevitable discovery doctrine, the remand court

found it applied for three reasons: (1) Hanson would have been arrested due to

her warrant, and the vehicle would have been searched following her arrest

pursuant to a lawful inventory search; (2) the positive indication by the drug-

detection canine gave police probable cause to obtain a search warrant; and (3)

Shaw admitted the marijuana in the car was his.

As for the independent source doctrine, the remand court determined it

applied despite the officers’ unlawful entry into the motel room because the

phone call by the motel owner reporting suspected narcotics, alone, would

have been sufficient to give police reasonable suspicion to stop Hanson and

search her vehicle.

II.

A.

In his petition, Shaw contends that he had automatic standing under

State v. Alston, 88 N.J. 211 (1981), to challenge the search of the tote bag and

the Appellate Division erred by requiring him to demonstrate a reasonable

expectation of privacy. An expectation of privacy analysis, Shaw submits, is

appropriate only when a court must determine whether there can be a

reasonable expectation of privacy in a novel class of objects, and tote bags, he

states, are not a novel class of objects.

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 In support of Shaw, the ACLU asks us to extend Wright and hold the

third-party intervention doctrine cannot exempt a search of a motel room from

the warrant requirement. The ACLU also asks us to find the Appellate

Division erred by placing the burden on Bolden to prove he had a reasonable

expectation of privacy in the motel room. The ACLU further argues the

officers did not have reasonable suspicion even to ask for Hanson’s consent

because the evidence from the motel was unlawfully obtained.

The State responds to Shaw’s petition by submitting that a reasonable

expectation of privacy analysis is proper because this Court has not yet

addressed whether someone can have a reasonable expectation of privacy in

another’s bag. The State contends that Shaw lacked any expectation of privacy

in Dickerson’s tote bag because he hid contraband in it without her knowledge.

The State also argues that the trespasser exception to automatic standing

should apply.

Additionally, the State argues the evidence seized from the tote bag is

admissible under the inevitable discovery doctrine. Specifically, the State

alleges the drug evidence in the tote bag would have been inevitably

discovered pursuant to the lawful consent search or, alternatively, pursuant to a

warrant that would have been granted due to the positive indication by the

drug-detection canine.

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 In its separate response to the ACLU, the State alleges amicus is

injecting new arguments that are not before the Court, highlighting that only

Bolden challenged the search of the motel room on appeal and he did not

petition for review. Alternatively, the State asserts that neither Shaw nor

Hanson had a reasonable expectation of privacy in the motel room because

Hanson’s guest status was either relinquished or terminated when she

demanded a full refund or when the motel owner found the drugs. The State

urges this Court not to extend Wright and to apply the third-party intervention

doctrine. Lastly, the State claims the motel owner’s phone call reporting

unlawful narcotics is an independent source to suspect Hanson and her cohorts

of unlawful drug activities.

B.

In its cross-petition, the State raises five arguments.

Emphasizing “[Shaw] was in the close confines of an automobile with

Hanson that had just arrived at the motel where evidence of drug trafficking

was seized,” the State alleges it was reasonable for the police to assume the

passengers were Hanson’s confederates and thus it was lawful for them to

detain Shaw, even after their fruitless warrant check.

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 Flowing from that point, the State argues Shaw’s detention from the ti me

Rademacher stopped the vehicle to when Shaw confessed was not

unreasonable or a de facto arrest under the circumstances.

The State submits Shaw’s spontaneous admission was voluntary,

because he knew when he saw the drug-detection canine that his marijuana

would inevitably be discovered.

The State also maintains Hanson’s consent was voluntary under the

circumstances, considering that the officers honored her previous refusals, and

it was reasonable for the officers to believe Hanson had authority to consent to

a search of the entire vehicle and its contents.

Finally, citing the framework for inevitable discovery in State v. Sugar,

100 N.J. 214, 238, 240 (1985), the State submits “the dog sniff gave the police

an ‘independent source’ of knowledge to arrest defendant for constructive or

joint possession of the drugs found inside of Hanson’s vehicle.”

Shaw responds that, while the initial stop may have been legal, his

continued detention and prolonged isolation in a police vehicle was unlawful

and a de facto arrest. Because his confession was a product of the illegal

arrest, he reasons, it must be suppressed as fruit of the poisonous tree. As for

Hanson’s consent, he argues it was either a product of his unlawful arrest or

coerced.

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 Lastly, Shaw argues the independent source and inevitable discovery

doctrines do not apply because they were not raised before the trial court. On

the merits, Shaw contends there was no separate search to serve as an

independent source for the drug evidence, and the police cannot show by clear

and convincing evidence that a hypothetical warrant would have been granted.

C.

Following the remand and arguing the State failed to produce evidence

that a warrant would have been sought and obtained, Shaw maintains the

inevitable discovery and independent source doctrines do not apply. The State

reasserts the doctrines do apply because the motel owner’s report served as an

independent source for lawfully detaining the vehicle, and police would

inevitably have discovered the drug evidence in the vehicle because the police

would have obtained a warrant in accord with police procedure after the drug

dog’s positive indication.

III.

We address chronologically each issue as it arose during the course of

the motel and vehicle search, using the search of the motel as the starting

point. As usual, we defer to the fact findings of the trial court, provided they

are supported by substantial credible evidence in the record, State v. Davila,

17
203 N.J. 97, 109 (2010), but review the trial and remand courts’ legal

conclusions de novo, State v. Vargas, 213 N.J. 301, 327 (2013).

Although Shaw did not challenge the search of the motel room on appeal

to the Appellate Division or this Court, the Appellate Division found the motel

search unlawful based on Bolden’s challenge. The illegality of that search was

not appealed by the State. Yet the State argues, in part, that the extended

investigatory detention of Shaw was based on a reasonable suspicion of illicit

activity in light of the drugs found in Hanson’s motel room. Because the

search of the motel room is so entangled with the parties’ arguments about the

validity of Shaw’s extended detention, because consideration of the search’s

constitutionality “is necessary to the complete determination” of this matter,

and because the record before us is adequate to permit review of this issue, we

now exercise original jurisdiction and review the validity of the search of

Hanson’s motel room. R. 2:10-5; Price v. Himeji, LLC, 214 N.J. 263, 294-95

(2013).

The Fourth Amendment of the United States Constitution and Article I,

Paragraph 7 of the New Jersey Constitution both safeguard the right of all

individuals to be secure in their houses against unreasonable searches and

seizures. State v. Hathaway, 222 N.J. 453, 468 (2015) (quoting U.S. Const.

amend. IV) (citing N.J. Const. art. I, ¶ 7). When law enforcement undertakes a

18
search without a warrant, that search is presumptively unlawful. State v.

Pineiro, 181 N.J. 13, 19 (2004). To overcome the presumption, the State has

the burden of demonstrating the search fell within a recognized exception to

the warrant requirement. Vargas, 213 N.J. at 314.

Under the third-party intervention doctrine, a person’s reasonable

expectation of privacy is not violated by the actions or search of a private,

rather than government, actor. See Wright, 221 N.J. at 459. In such a

situation, the initial search by the private actor does not trigger Fourth

Amendment protections, which apply only to governmental action. See

Burdeau v. McDowell, 256 U.S. 465, 475 (1921). And the subsequent search

by law enforcement -- so long as it does not exceed the scope of the private

search -- may not require a warrant if it does “not infringe any constitutionally

protected privacy interest that had not already been frustrated as a result of the

private conduct.” United States v. Jacobsen, 466 U.S. 109, 120, 123 (1984).

As the United States Supreme Court has explained, “[o]nce frustration of the

original expectation of privacy occurs, the Fourth Amendment does not

prohibit governmental use of the now-nonprivate information.” Id. at 117.

The third-party intervention doctrine traditionally applied to searches of

objects either physically conveyed or reported to the police, such as

incriminating evidence taken from an office and misdirected or damaged

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packages. See Wright, 221 N.J. at 459, 468-69. In Wright, we held that the

doctrine could not be applied to searches of private dwellings -- including

rented apartments -- under our State Constitution. 221 N.J. at 476.

We first distinguished searches of the home from the searches to which

the doctrine had been previously applied, stressing that “[h]omes are filled

with intimate, private details about peoples’ lives that are ordinarily free from

government scrutiny,” and “[a]n officer’s entry into a home is a far greater

intrusion than a search of a package presented to the police.” Id. at 460. We

noted that the principles applicable to privately owned houses are equally

applicable to rental units, observing that tenants do not cede their state and

federal rights to their landlord when they rent an apartment. Id. at 475. We

acknowledged that, under certain circumstances, landlords are permitted entry

into a tenant’s apartment, but emphasized that, generally, “a landlord does not

have the authority to consent to a search of a tenant’s private living space.” Id.

at 476 (citing Chapman v. United States, 365 U.S. 610 (1961); State v. Coyle,

119 N.J. 194, 215-16 (1990)).

Critically, we said “[a] landlord, like any other guest, may tell the police

about contraband he or she has observed. And the police, in turn, can use that

information to apply for a search warrant. But that course of events does not

create an exception to the warrant requirement.” Id. at 476-77 (citation

20
omitted). Stressing that the United States Supreme Court had never extended

the doctrine to home searches, and predicting from case law that it would not,

we likewise declined to expand the doctrine in that way. Id. at 476.

One of the cases on which we relied in reaching that conclusion, id. at

472, was United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997), in which

the United States Court of Appeals for the Sixth Circuit refused to extend the

third-party intervention doctrine to a motel room. Allen had paid for his motel

room in cash, including an additional deposit for any telephone charges he

might incur. Allen, 106 F.3d at 697. When he depleted his balance, the motel

clerk called to inform him that his remaining credit was insufficient to cover

his stay that night. Ibid. When Allen failed to pay or to answer his phone, the

motel manager went to Allen’s room and, after her knock went unanswered,

used her key to enter. Ibid. Inside, she saw loose marijuana and bricks of

marijuana lying about. Ibid. She then exited the room, used a special key to

deadbolt the door, and called the police. Ibid. When police arrived, they

entered the room and observed the marijuana the motel manager had reported.

Ibid. Allen was arrested upon his return, and police obtained a search warrant

for the motel room, his vehicle, and his briefcase. Ibid.

On appeal from the denial of Allen’s suppression motion, “[t]he

government argue[d] that the police officers’ warrantless search of Allen’s

21
motel room was not illegal because it did not exceed in scope the initial private

search conducted by the motel manager.” Id. at 698. The Sixth Circuit

declined to apply the third-party intervention doctrine and found “the motel

manager’s search of Allen’s room did not extinguish Allen’s privacy interest

in the room’s contents.” Id. at 699.

We agree that hotel guests have a reasonable expectation of privacy in

their rooms akin to that held by property owners and tenants. See Georgia v.

Randolph, 547 U.S. 103, 112 (2006) (“[A] hotel guest customarily has no

reason to expect the manager to allow anyone but his own employees into his

room.” (citing Stoner v. California, 376 U.S. 483, 489 (1964); United States v.

Jeffers, 342 U.S. 48, 51 (1951))). This Court has acknowledged the warrant

requirement extends to hotel rooms, Hathaway, 222 N.J. at 468 (citing Stoner,

376 U.S. at 486), and has noted that federal courts have as well, see Hinton,

216 N.J. at 232 n.6 (citing United States v. Young, 573 F.3d 711, 716, 720-21

(9th Cir. 2009); United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004)).

While a hotel or motel guest’s expectation of privacy may be somewhat lesser

in consideration of the realities of the relationship between a guest and motel

owner, it is not so reduced that mere entry by the motel owner can be said to

entirely deprive the guest of his or her privacy interests.

22
 Although Wright discussed apartments, its reasoning applies with equal

force to motel rooms. We therefore reject the State’s argument and decline to

extend the private search doctrine to hotel and motel rooms. The third-party

intervention doctrine cannot excuse law enforcement’s search of a motel room

from the warrant requirement. To reiterate the guidance we provided in

Wright, where a motel owner or employee finds contraband in a guest’s room,

“the police can use that information to obtain a search warrant and then

conduct a search.” Wright, 221 N.J. at 478-79. “In the time it takes to get the

warrant, police officers can secure the [motel room] from the outside, for a

reasonable period of time, if reasonably necessary to avoid any tampering with

or destruction of evidence.” Id. at 478.

Here, the State’s reliance on the third-party intervention doctrine was

misplaced, and the State failed to show the warrantless search of the motel

room was exempt from the warrant requirement. As a result, we find the motel

search was unconstitutional and that the illegal fruits of that search must be

suppressed.

We note, as a general matter, that the third-party intervention doctrine is

a poor fit to living spaces. Rather, a standing analysis seems more appropriate.

See, e.g., Allen, 106 F.3d at 699 (finding that, while the third-party

intervention doctrine did not apply, termination of Allen’s guest status

23
eliminated any expectation of privacy he had in his motel room). In response

to an argument raised by amicus -- one that was not discussed below -- the

State asserts Shaw does not have standing to challenge the search of the motel

room because he did not demonstrate a connection to the motel room or

because Hanson’s privacy interest in the room was terminated. As part of that

argument, however, the State highlights that Shaw was charged with

constructive possession of the drugs recovered from the motel room. Because

this was not raised earlier, we decline to engage in a lengthy discussion of the

issue. Nevertheless, we highlight that the State’s argument neglects our

automatic standing jurisprudence, Alston, 88 N.J. at 228-30, and incorrectly

attempts to shift the burden onto Shaw to prove a privacy interest in the motel

room, see State v. Brown, 216 N.J. 508, 529 (2014).

IV.

We next consider whether Shaw was lawfully detained and whether, as a

result, his statement that he had a bag of marijuana in the car was admissible

against him.

A.

Under the Fourth Amendment and Article 1, Paragraph 7, the

warrantless seizure of an individual is presumptively unlawful. State v. Coles,

218 N.J. 322, 342 (2014). In limited circumstances, however, police may

24
lawfully detain someone for investigatory purposes. Ibid.; see also Terry, 392

U.S. at 24. Police must have particularized suspicion in order to conduct an

investigatory stop, State v. Chisum, 236 N.J. 530, 545 (2019), meaning “[t]he

stop must be reasonable and justified by articulable facts; it may not be based

on arbitrary police practices, the officer’s subjective good faith, or a mere

hunch,” Coles, 218 N.J. at 343.

Moreover, “[t]he duration of an investigative stop must be limited in

time and scope to the purpose that justified the stop in the first place.” State v.

Gibson, 218 N.J. 277, 292 (2014). An extended detention will be found

unreasonable if it lasts longer than necessary to effectuate the purpose of the

continued detention, or if law enforcement uses more intrusive means than

necessary to conduct the investigation. Chisum, 236 N.J. at 547. If the

officer’s conduct is more intrusive than necessary, the investigative stop turns

into a de facto arrest. State v. Dickey, 152 N.J. 468, 478 (1998). “Thus, the

detention must be reasonable both at its inception and throughout its entire

execution.” Coles, 218 N.J. at 344.

There is no simple test for determining at which point a prolonged

investigative stop turns into a de facto arrest, but important factors include

unnecessary delays, handcuffing the suspect, confining the suspect in a police

25
car, transporting the suspect, isolating the suspect, and the degree of fear and

humiliation engendered by the police conduct. Ibid.

Here, when Rademacher approached the vehicle, all he knew was that a

substantial amount of drugs were found in Hanson’s motel room, that she was

driving a rental car, and that she was not a New Jersey resident. On that basis,

the State attempts to justify seizing Shaw, patting him down, and thereafter

isolating him in a police car to wait until a drug-detection canine arrived on the

scene and sniffed Hanson’s vehicle.

Once it was determined that Shaw was unarmed and had no outstanding

warrants, however, there was no particularized suspicion that Shaw was

engaged in criminal activity that would justify Shaw’s further detention. We

do not accept the State’s argument that a person’s mere presence in the car of a

suspected drug dealer warrants indefinite detention without any individualized

suspicion. Rather than conducting a true investigatory stop, the officers appear

to have been operating from the assumption that the passengers were Hanson’s

confederates. While such a hunch may be reasonable, it is insufficient to

justify the extent of the investigatory detention here. Our Constitution requires

officers to pursue the least intrusive means when they conduct an extended

investigatory detention. Where an officer’s hunch proves correct, we still

cannot sanction an extended investigatory detention of a passenger if the

26
officer lacked particularized suspicion based on articulable facts. Our

Constitution does not provide hindsight as a justification for an investigatory

detention.

In short, we agree with the Appellate Division that the State failed to

demonstrate any reason for continuing the investigatory detention of Shaw

after his warrant check returned negative. On the record established at the

suppression hearing, the police lacked the constitutional minimum to hold

Shaw while they obtained the drug-detection canine and had the dog sniff the

vehicle. Under the circumstances here, isolating Shaw in the back of a patrol

car despite a negative warrant check was a de facto and an unlawful arrest.

It was during that period of unlawful detention that Shaw stated there

was marijuana in the bag. We next consider whether that statement is

admissible.

B.

“As a general rule, a confession obtained through custodial interrogation

after an illegal arrest should be excluded unless the chain of causation between

the illegal arrest and the confession is sufficiently attenuated so that the

confession was ‘sufficiently an act of free will to purge the primary taint.’” State

v. Worlock, 117 N.J. 596, 621 (1990) (quoting Wong Sun v. United

States, 371 U.S. 471, 486 (1963)). “The question whether a confession is the

27
product of a free will under Wong Sun must be answered on the facts of each

case. No single fact is dispositive.” Brown, 422 U.S. at 603.

In State v. Barry, we explained that, when considering confessions made

during illegal arrests, the overarching question is “whether the confession falls

on one side or the other of the line that separates confessions which resulted

from an exploitation of an illegal arrest from those which were the product of

the defendant’s free will, the taint of the illegal arrest having been sufficiently

attenuated.” 86 N.J. 80, 87 (1981). To reach that determination and, thus, to

decide whether to suppress a statement obtained after an unlawful arrest, we

consider three factors: “the temporal proximity of the arrest and the

confession, the presence of intervening circumstances, and, particularly, the

purpose and flagrancy of the official misconduct.” Barry, 86 N.J. at 87; accord

Brown, 422 U.S. at 603-04.

The length of time between the unlawful arrest and the confession is the

least determinative due to its ambiguity; a long detention could suggest

increasing pressure or dissipation of the initial shock of arrest, and a short

detention could indicate the confession was a product of the initial shock or

that the confession was unrelated to the arrest. Worlock, 117 N.J. at 622-23.

The conditions of the unlawful detention should be considered because they

“can be as important as the temporal proximity.” Id. at 623.

28
 The presence of intervening circumstances that break the causal

connection between the arrest and confession can be the most important

consideration. Ibid. Such intervening circumstances could include

termination of the unlawful detention, Wong Sun, 371 U.S. at 491; presenting

the detainee with new evidence, Barry, 86 N.J. at 89-90; or evidence that the

defendant intended to turn himself in, Worlock, 117 N.J. at 624.

And, finally, the purposefulness and flagrancy of the police misconduct

is particularly relevant in determining whether a confession was the fruit of an

unlawful arrest and has justified suppression where the illegal conduct was

“calculated to cause surprise, fright, and confusion.” Brown, 422 U.S. at 605;

see also Worlock, 117 N.J. at 624 (1990).

Applying those principles here, we agree with the Appellate Division

and find Shaw’s confession was a product of his unlawful de facto arrest and

must be suppressed. Shaw’s confession occurred during his unlawful

detention, and we are not persuaded that the presence of the drug-detection

canine purged the taint of the illegal arrest. Shaw was never informed of his

right to remain silent and was held without individualized suspicion so the

police could investigate his connection to suspected drug activity. Although

his confession was not made in response to an interrogation, we are not

convinced it was a product of his own free will. The aim of the exclusionary

29
rule is to prevent exploitation of unlawful means by police; to vindicate that

aim and the constitutional protections against unlawful seizures, we find

suppression of Shaw’s admission appropriate.

V.

We now turn to the search of the tote bag. We begin with whether Shaw

had automatic standing to challenge that search, then consider the applicability

of exceptions to the automatic standing rule, and finally determine whether

Hanson’s consent to search provided an exception to the warrant requirement.

A.

The New Jersey Constitution provides greater protections from

warrantless searches and seizures than the Fourth Amendment of the

Constitution of the United States. Alston, 88 N.J. at 226. Despite our

Constitution’s similar language, in Alston, we strengthened our legitimate

expectation of privacy standard. Id. at 228. “[U]nder Article I, Paragraph 7 of

the New Jersey Constitution, ‘a criminal defendant is entitled to bring a motion

to suppress evidence obtained in an unlawful search and seizure if he has a

proprietary, possessory or participatory interest in either the place searched or

the property seized.’” State v. Randolph, 228 N.J. 566, 581 (2017) (quoting

Alston, 88 N.J. at 228).

30
 Our standard both incorporates the legitimate expectation of privacy

standard and offers broader protections that advance three important State

interests. State v. Johnson, 193 N.J. 528, 543 (2008). The first is the State’s

interest in protecting defendants from having to admit possession to vindicate

their constitutional right against unreasonable searches and seizures. Ibid.

The second is to prevent the State from arguing a defendant should be subject

to criminal liability for possessing contraband, while asserting the same

defendant had no privacy interest in the area from which police obtained the

contraband without a warrant. Ibid. Our third aim is to increase privacy

protections for our citizens and to promote respect for our Constitution by

discouraging law enforcement from carrying out warrantless searches and

seizures where unnecessary. Ibid.

Whenever a defendant “is charged with committing a possessory drug

offense -- as in this case -- standing is automatic, unless the State can show

that the property was abandoned or the accused was a trespasser.” Randolph,

228 N.J. at 571-72. “[T]he State bears the burden of showing that defendant

has no proprietary, possessory, or participatory interest” in the property

searched. Id. at 582. We have repeatedly rejected arguments that “automatic

standing does not relieve defendant of his obligation to show that he had a

reasonable expectation of privacy in the [area] searched.” Id. at 583

31
(discussing Johnson, 193 N.J. at 546). Importantly, we will not assess whether

someone has a reasonable expectation of privacy if we have already

determined that the location from which the contraband was seized enjoys

constitutional protection and there are no new or unusual circumstances

necessitating such an analysis. Id. at 584.

We find no reason to engage in an expectation of privacy analysis here.

The State alleges Shaw was akin to a trespasser because he put the drugs in

Dickerson’s bag without her knowledge. But the State failed to produce any

evidence to support that point. During the suppression hearing, counsel made

passing reference to the tote bag being Dickerson’s, but the record is bereft of

anything suggesting Shaw put the heroin in the tote bag without her consent.

By arguing Shaw possessed the drugs and had no expectation of privacy

in the tote bag, the State appears to do exactly what this Court discouraged in

Alston, that is, arguing Shaw has no expectation of privacy in the tote bag, but

was so inextricably linked to drugs found within it that he should be held

criminally liable for possession. Because the State failed to produce any

evidence that would warrant scrutiny of Shaw’s privacy interests, we find

Shaw had automatic standing to challenge the search of the tote bag.

32
 B.

Our inquiry cannot end there. In Randolph, “we recognize[d] three

exceptions to the automatic standing rule in cases concerning real property.”

Id. at 585. Under two of those exceptions, we held someone accused of

possession will not have standing to challenge the search if the State shows the

police officer who conducted the search had an objectively reasonable basis,

based on the totality of the circumstances, to believe the defendant was

trespassing on the property or that the building was abandoned. Id. at 585, 587

(citing Brown, 216 N.J. at 532).

The State asks us to apply by analogy either the trespasser or abandoned

property exception to the drug evidence found in the tote bag. We cannot , and

we dispense with both arguments quickly.

The tote bag was found in the back seat of a car that had four occupants.

They were ordered out of the car. The State simply has not established that the

bag was abandoned property. See State v. Carvajal, 202 N.J. 214, 223-24

(2010).

The trespasser exception has even less relevancy. The record is devoid

of any evidence that Shaw put the drugs in the tote bag without Dickerson’s

knowledge, or that the officer had an objectively reasonable basis to believe he

had done so.

33
 C.

Finally, having established that Shaw had automatic standing to

challenge the search of the tote bag, we address whether Rademacher’s

warrantless search of it fell within the consent-search exception to the warrant

requirement and whether the drug evidence obtained must be suppressed.

An individual’s consent to search a constitutionally protected area

eliminates the need for law enforcement to obtain a warrant. Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973). The consent must be voluntary, that is,

“‘unequivocal and specific’ and ‘freely and intelligently given.’” King, 44

N.J. at 352 (quoting Judd v. United States, 190 F.2d 649, 651 (D.C. Cir.

1951)). “The burden of proof is on the State to establish by clear and positive

testimony that the consent was so given.” Ibid. The ultimate determination

must rest on the facts of each individual case. State v. Hagans, 233 N.J. 30, 40

(2018). And a court’s determination must be based on the totality of the

circumstances and be supported by sufficient credible evidence in the record.

Id. at 42-43.

New Jersey’s Constitution also provides greater protections than the

federal constitution when it comes to consent searches. State v. Carty, 170

N.J. 632, 639, 647, modified on other grounds, 174 N.J. 351 (2002). Law

enforcement must have a “reasonable and articulable suspicion to believe that

34
an errant motorist or passenger has engaged in, or is about to engage in,

criminal activity,” before officers may ask for consent to search a vehicle. Id.

at 647. This prophylactic rule protects the public from the unjustified

extension of motor vehicle stops and from fishing expeditions unrelated to the

reason for the initial stop. Ibid.

Leaving aside the unconstitutional search of Hanson’s motel room --

which the State uses in part to try to justify the motor vehicle stop and search

-- we find the State failed to demonstrate Hanson’s consent was voluntary.

The trial court did not make specific findings on this issue, but did recite the

requirement that the State prove Hanson’s consent was given voluntarily. The

trial court appears to have relied on the consent-to-search form, on which

Hanson tellingly left uninitialed the affirmation that her consent was not a

product of coercion.

We agree with the Appellate Division’s assessment of Hanson’s ultimate

consent to search. At the time, Hanson had already been arrested and

handcuffed. The officers asked her three different times for consent to search

the vehicle. She relented only after an officer informed her of Shaw’s

unlawfully obtained confession.

Based on this record, we find the trial court’s ruling of no coercion in

Hanson’s consent to search not supported by sufficient credible evidence. We

35
conclude the warrantless search of the Tahoe was unconstitutional and that the

evidence seized through that search is subject to suppression. Nor can the

evidence come in through Shaw’s confession, obtained -- as discussed above --

as the result of an unlawful detention and which law enforcement used to

secure Hanson’s consent to search. Whether viewed through the lens of

Hanson’s non-voluntary consent or Shaw’s coerced confession, the evidence

obtained from the vehicle is subject to exclusion as fruit of the poisonous tree.

See State v. O’Neill, 193 N.J. 148, 171 n.13 (2007) (“The fruit-of-the-

poisonous-tree doctrine denies the prosecution the use of derivative evidence

obtained as a result of a Fourth or Fifth Amendment violation.”); Johnson, 118

N.J. at 652.

V.

Lastly, we address whether the inevitable discovery doctrine or

independent source rule should be applied to resurrect the suppressed evidence

obtained in violation of the constitution.

“When the seizure of evidence is the result of the State’s

unconstitutional action, the principal remedy for violation of the constitutional

right to be free from unreasonable searches and seizures is exclusion of the

evidence seized.” State v. Bryant, 227 N.J. 60, 71 (2016). The purpose of the

exclusion is its deterrent effect. Ibid. (citing State v. Novembrino, 105 N.J.

36
95, 137-38 (1987)). The two exceptions to the exclusionary rule the State asks

us to apply in this case -- the inevitable discovery doctrine and the independent

source rule -- bear a facial similarity but have different conceptual bases.

State v. Smith, 212 N.J. 365, 393-95 (2012).

The inevitable discovery doctrine emanates from a recognition by both

this Court and the Supreme Court of the United States that the exclusionary

rule’s purpose of preventing the use of evidence unlawfully obtained by law

enforcement is not served -- especially in light of the heavy societal cost --

where the police would have inevitably discovered the evidence. Sugar, 100

N.J. at 237. In circumstances in which the State can show law enforcement

would have discovered the evidence absent their illegal conduct, we have held

the exclusionary rule should not be applied because to do so would place the

prosecution at an unjustified disadvantage. Id. at 237-38. For the inevitable

discovery exception to apply, the State must prove that

(1) proper, normal and specific investigatory
procedures would have been pursued in order to
complete the investigation of the case; (2) under all of
the surrounding relevant circumstances the pursuit of
those procedures would have inevitably resulted in the
discovery of the evidence; and (3) the discovery of the
evidence through the use of such procedures would
have occurred wholly independently of the discovery of
such evidence by unlawful means.

[Smith, 212 N.J. at 391 (quoting Sugar, 100 N.J. at 238
(citations omitted)).]
37
“[A]s with the [independent source rule], [the State] must establish all three

elements by clear and convincing evidence,” and its “failure to satisfy any one

prong of the standard will result in suppression of the challenged evidence.”

Id. at 395 (quoting State v. Holland, 176 N.J. 344, 363 (2003)).

The independent source rule, like the inevitable discovery doctrine,

allows the admission of evidence that was discovered wholly independently

from the constitutional violation. Holland, 176 N.J. at 354.

First, the State must demonstrate that probable cause
existed to conduct the challenged search without the
unlawfully obtained information. It must make that
showing by relying on factors wholly independent from
the knowledge, evidence, or other information acquired
as a result of the prior illegal search. Second, the State
must demonstrate in accordance with an elevated
standard of proof, namely, by clear and convincing
evidence, that the police would have sought a warrant
without the tainted knowledge or evidence that they
previously had acquired or viewed. Third, regardless
of the strength of their proofs under the first and second
prongs, prosecutors must demonstrate by the same
enhanced standard that the initial impermissible search
was not the product of flagrant police misconduct.

[Id. at 360-61.]

The inevitable discovery doctrine and independent source rule were not

discussed by the trial court or the Appellate Division. A review of the record

shows the prosecutor made only passing reference to the inevitable discovery

doctrine, and the Appellate Division briefly mentioned “independent source”
38
when explaining the fruit of the poisonous tree doctrine. Despite the sparse

record, we ordered a remand and gave the State an opportunity to develop

those two points. The State failed to produce any further support for its

position, effectively declining the opportunity. Without a sufficiently

developed record, we decline to review these issues and reject the remand

court’s legal conclusions. The State failed to make the necessary showing

under either exception to the exclusionary rule. Accordingly, the

unconstitutionally obtained evidence remains suppressed.

VI.

To summarize, we observe today that the third-party intervention

doctrine, which concerns frustration of someone’s privacy interests, cannot be

applied to hotel or motel rooms as the State contends. A challenge to

automatic standing is more appropriate, but it is the State that bears the bu rden

of demonstrating a defendant did not have a proprietary, possessory, or

participatory interest in the motel room. Here, just as the motion court found,

Shaw had automatic standing to challenge the warrantless search of the motel

room because he was charged with possession of the drugs recovered from it.

The State’s bare assertion that Shaw had no connection to the motel room is

insufficient to meet its burden. The motel search was thus not exempt from

the warrant requirement.

39
 With respect to Shaw’s confession, we agree with the Appellate Division

that isolating Shaw in the back of a patrol car and extending his investigatory

detention without a reasonable, articulable, and individualized suspicion

amounted to an unlawful arrest. We find Shaw’s confession was not voluntary

and was a by-product of the unlawful de facto arrest, so we affirm the panel’s

holding that it must be suppressed.

As to the drug evidence found in Dickerson’s tote bag, we reverse the

Appellate Division, finding instead that Shaw had automatic standing to

challenge the search of the tote bag as a result of his being charged with

possession of the drugs found within it. We also find the trespasser and

abandoned property exceptions inapplicable. So, the drug evidence found in

the tote bag must be suppressed.

We affirm the Appellate Division’s finding that the State failed to

establish the voluntariness of Hanson’s consent.

Finally, because the inevitable discovery and independent source

exceptions to the warrant requirement were not raised below, and because the

State did not develop the record when given the opportunity to do so before the

trial court on remand, we find the State has not met its burden to establish

either exception and reject the remand court’s legal conclusions.

40
 The judgment of the Appellate Division is affirmed in part and reversed

in part. The matter is remanded to the trial court, where the State may proceed

with the charges against Shaw without the benefit of his confession or the

evidence obtained from the tote bag. Additionally, we reverse the trial court

and find the warrantless search of Hanson’s motel room unlawful and

unconstitutional, and we suppress the drug evidence obtained from Hanson’s

motel room.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE
TIMPONE’S opinion.

41