NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4938-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SIWAN R. BROWN, a/k/a
SHAWN BROWN,
Defendant-Appellant.
________________________
Argued telephonically May 4, 2020 –
Decided June 11, 2020
Before Judges Sabatino, Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 15-09-1253.
Daniel S. Rockoff, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Office of the Public Defender, attorney; Daniel S.
Rockoff, of counsel and on the briefs).
Lila B. Leonard, Deputy Attorney General,
argued the cause for respondent (Gurbir S. Grewel,
Attorney General of New Jersey, attorney; Lila B.
Leonard, of counsel and on the briefs).
PER CURIAM
This narcotics case returns following a remand to the trial court directed
in the unpublished portion of this court's 1 December 27, 2018 opinion. See State
v. Brown, No. A-2838-16 (App. Div. Dec. 27, 2018) (full opinion) (slip op. at
1); and State v. Brown, 457 N.J. Super. 345 (App. Div. 2018) (published portion
only).2
Defendant, Siwan R. Brown, appeals the trial courts renewed denial of his
motion to suppress heroin found in his home. Tried by a jury, defendant was
found guilty of various drug offenses. The State’s case was largely based on the
warrantless seizure of over one thousand bags of heroin and drug paraphernalia
from a residence that defendant shared with other relatives.
The search and seizure process began when police officers pulled
defendant over in his car pursuant to a lawful traffic stop several blocks from
his home. After smelling marijuana, the officers requested that defendant step
out of his car. Defendant then admitted to the police to having "two bundles" of
1
Judge Mitterhoff participated with Judges Sabatino and Sumners in the 2018
opinion. Due to the annual change in Parts of the Appellate Division, Judge
Mitterhoff was replaced in the present appeal by Judge Geiger.
2
The published portion addressed a novel issue concerning jury requests to
playback summations. Neither party sought Supreme Court review of that
discrete issue.
A-4938-18T1
2
heroin in his pockets. The officers seized the heroin, placed defendant under
arrest, handcuffed him, and searched his car. They found marijuana in the center
console.
The officers then asked defendant where he lived, and sought his consent
to search his home, which was a short distance away. Defendant orally
consented at the roadside to a search of his home. Defendant was driven home
in the back of a police car, while another officer drove defendant’s car back to
the home.
Once inside, defendant signed the first of two consent-to-search forms.
According to defendant, he attempted to limit the scope of the search to his room
by writing the word "room" on the form. Defendant was briefly unhandcuffed
in order to sign the form and unlock the door to his room.
After finding drug paraphernalia but no drugs in the first room, the officers
obtained defendant's oral consent to search a second room, where more drug
paraphernalia was visible. Defendant's uncle then allowed the police into a third
room, where they observed a safe. The police obtained defendant's written
consent to search that safe. The police found 1,050 bags of heroin inside the
safe.
A-4938-18T1
3
Defendant’s pretrial suppression motion was denied by the trial court after
an evidentiary hearing. The case went to trial and defendant was convicted of
multiple counts of drug offenses. The court sentenced defendant to an aggregate
term of eighteen years, with a nine-year period of parole ineligibility.
Defendant appealed, and we upheld several aspects of case. However, we
remanded the case for the trial court to analyze fully the coercion and offsetting
factors set forth in State v. King, 44 N.J. 346 (1965), which bear upon the
voluntariness of a defendant’s consent to search his premises. 3 Brown, slip op.
at 21. We further asked the trial court to address whether, in light of the Supreme
Court’s decisions in State v. Carty, 170 N.J. 632, 635 (2002), and State v.
Domicz, 188 N.J. 285 (2006), the police required a reasonable and articulable
suspicion of criminal activity in order to seek at the roadside defendant’s consent
to search his home. Brown, slip op. at 21.
On remand, the court denied defendant’s suppression motion a second
time. The court ruled that the police officers did not require a reasonable and
articulable suspicion to ask defendant at the roadside for consent to search his
3
As we will describe in more depth, five of the King factors, which we shall
denote as the "coercion" factors, weigh in favor of a finding of involuntariness,
whereas three of the factors, which we shall call the "offsetting" factors weigh
in favor of voluntary consent. See King, 44 N.J. at 352-53.
A-4938-18T1
4
home. Even so, the court found that the officers nonetheless did have the
requisite level of suspicion. The court also analyzed the unresolved coercion
and offsetting King factors, and, after discussing those factors, concluded that
defendant’s consent to search his home and the safe was voluntary.
For the reasons that follow, we reverse the trial court's application of the
King factors and conclude that the items in defendant's house were seized
without his valid consent. Consequently, we vacate defendant's conviction that
was based on the improperly seized evidence admitted at trial, and remand for
further proceedings. 4
In light of our disposition, we need not resolve whether the State
Constitution required the police to have reasonable suspicion of criminal activity
at defendant's house in order to ask at the roadside for his consent to search those
premises. That open legal question, which is not squarely addressed in Carty or
Domicz, is best resolved with the authoritative guidance of the Supreme Court.
4
We do not vacate count six of defendant's conviction for knowingly or
purposely possessing a controlled dangerous substance, N.J.S.A. 2C:35-
10(a)(1), as this count relates only to the heroin lawfully seized from defendant's
person by the police at the roadside.
A-4938-18T1
5
I.
For the benefit of the reader, we repeat the pertinent facts as they relate to
the search and seizure issues before us. We note in this regard that neither party
offered any additional proofs at the remand hearing. Hence, the trial court
conducted its analysis based on the existing record and its recollections of the
case.5
The Lawful Motor Vehicle Stop
At about 8:00 p.m. on April 30, 2015, Jersey City police officers Dennis
DeJesus and Gabe Moreano observed a white Ford Taurus fail to stop at a stop
sign. The officers pulled over the Taurus. Defendant, the Taurus driver,
lowered the windows. A female, later identified as defendant’s aunt, was next
to him in the passenger’s seat.
Officer DeJesus approached the car on the passenger side and Officer
Moreano approached on the driver’s side. Defendant rolled down his window
and Moreano asked him to produce his documentation.
5
The same judge who had presided over the suppression hearing concerning
the evidence seized without a warrant also conducted the remand. A different
judge presided over the trial, and also conducted a Miranda hearing about the
admissibility of defendant's incriminating statements. Miranda v. Arizona, 384
U.S. 436 (1966).
A-4938-18T1
6
According to the officers' testimony, once defendant rolled down the
windows, they immediately smelled the odor of raw marijuana emanating from
the car. Moreano asked defendant about the smell of marijuana. Defendant
admitted to Moreano he had smoked marijuana earlier that day.
Moreano then asked defendant to step out of the vehicle. As defendant
began to do so, Moreano asked him, "if he ha[d] anything on him . . . that could
poke me, stab me, anything that could cause me harm." According to Moreano,
defendant replied, "Yeah, I have two bundles on me." Moreano’s partner,
Officer DeJesus, testified that, based on his training and experience, he
understood this comment to mean defendant had two bundles of heroin on his
person. Defendant told Moreano the heroin was in his right-side back pocket.
The Lawful Pat-Down, Seizure of Drugs on Defendant's Person, and
Arrest
Officer Moreano retrieved the two bundles from defendant’s pants pocket.
Each bundle contained ten small bags of heroin. The police then placed
defendant under arrest, handcuffed him, and read him a Miranda warning. The
officers searched defendant’s person incident to his arrest and seized his keys.
The officers also searched the aunt, but found no contraband.
A-4938-18T1
7
The Car Search
The officers then asked defendant if he would be willing to consent to a
search of his car. Defendant denied there was any contraband in the car, but
nevertheless agreed to the car search. Defendant signed a consent form,
reflecting his agreement to the car search. The police then searched the car and
recovered a clear plastic bag of marijuana from the center console.
The aunt called her brother (defendant’s uncle), who lived about ten
blocks away. The uncle arrived and sought to drive the Taurus away so it would
not be towed. However, the officers would not release the vehicle to him.
Meanwhile, a police sergeant arrived at the scene.
The Roadside Request for Consent to Search Defendant's Residence
After witnessing defendant sign the form consenting to the search of the
car, the sergeant asked defendant if he had any more narcotics at his residence.
Defendant said no.
The sergeant then asked defendant at the roadside if he would consent to
a search of his residence. According to the police testimony, defendant orally
consented.
A-4938-18T1
8
The Sequential Home Searches
The police drove defendant, who was still in handcuffs, in a patrol car to
his residence on Armstrong Avenue where he resided with his uncle and cousin.
The police separately drove the Taurus back to the home as well. In the
meantime, defendant’s uncle returned to the residence and met the officers at
the door. The uncle opened the door. 6
The officers escorted defendant into the residence, and they went into the
kitchen. Defendant’s uncle was present in the apartment for the entirety of the
search.
The officers briefly removed defendant’s handcuffs and, at 8:47 p.m., he
signed a consent form. The word "room" was handwritten by defendant in
parentheses next to his signature.
The Search of the First Room
Once the initial consent form for the room search was signed, officers used
a key that was on defendant’s key ring to unlock what defendant had initially
identified as his bedroom. The officers had difficulty unlocking the door.
Concerned that they would break the key or the lock, the officers had defendant
6
Defendant has not contested the uncle’s authority to let the officers inside the
shared residence.
A-4938-18T1
9
unlock the bedroom door. The officers removed one of defendant’s handcuffs,
and he opened the lock. The officers then searched the room in defendant’s
presence.
Once inside the room, the officers noticed a mattress on the floor, clothes
strewn about, and stacks of storage bins. After searching this room, the officers
seized numerous items of drug paraphernalia, including empty vials and empty
bags. The police did not find any drugs in that room.
The Search of the Second Room
The police then asked defendant if that was truly his room, or whether
there were other rooms he used. Defendant replied that he did not use any other
rooms. Officers then asked the uncle if there were any other rooms defendant
used. The uncle pointed to another room and advised it was defendant’s
bedroom as well. The police asked defendant if this second room was also his,
and he acknowledged that it was.
The police once again temporarily removed defendant’s handcuffs. They
handed him the key ring, and defendant unlocked the second bedroom. The
officers searched the bedroom and found more drug paraphernalia, including a
plate with a razor that had drug residue, empty vials, and empty bags. Again,
no drugs were found.
A-4938-18T1
10
The Search of the Safe in the Third Room
After the police had discovered a considerable amount [of] drug paraphernalia,
an officer asked defendant, "[w]here’s the narcotics?" Defendant replied that
there were no drugs in the house.
Meanwhile, Officer DeJesus spoke separately with the uncle, who orally
agreed to let the police search a third bedroom. Inside that third bedroom the
police discovered a black safe. The officers questioned defendant and the uncle
about the contents of the safe. The uncle said he had not known that a safe was
in that bedroom, and he denied owning it. The officers then asked defendant if
he owned the safe. Initially, he denied owning it, but eventually conceded the
safe was his.
Officer DeJesus asked defendant what was in the safe. According to
DeJesus, defendant replied, "[w]hatever you find in there . . . then that’s really
it . . . there’s no gun, nothing else in the house." At about 9:40 p.m., defendant
signed another consent-to-search form, this one authorizing the search of the
safe. The police opened the safe and found 1,050 bags of heroin, divided into
twenty-one bricks. The heroin in the safe had the same logo as the heroin found
earlier in defendant’s pocket.
A-4938-18T1
11
The Indictment
Based on this evidence, a Hudson County grand jury charged defendant
with multiple crimes. The charges included first-degree operation of a facility
for manufacturing heroin, N.J.S.A. 2C:35-4 (count one); second-degree
possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of heroin with
intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35-7
(count three); second-degree possession of heroin with intent to distribute while
within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four); third-degree
possession of heroin, N.J.S.A. 2C:35-10(a)(1) (counts five and six); and fourth-
degree possession of drug paraphernalia with intent to distribute, N.J.S.A.
2C:36-3 (count seven).
The Suppression Hearing
Prior to trial, defendant moved to suppress the physical evidence,
including the drugs and paraphernalia, which the police had seized from his
residence without a warrant. After a two-day hearing, the motion judge denied
that application, issuing a detailed written opinion. In essence, the judge
concluded that defendant had voluntarily provided his consent, both orally and
A-4938-18T1
12
in written form, to search the two rooms and the safe. The case was then taken
over by a second judge ("the trial judge").
The Trial and Verdict
The case was tried over the course of several days in September 2016.
The State presented testimony from several police officers who had been
involved in the arrest and search, a forensic chemist who tested the drugs, and a
narcotics expert.
Defendant did not testify in his own behalf, but he presented testimony
from his aunt who had been the passenger in the Taurus. The defense’s theme
at trial suggested that someone else other than defendant owned the drugs and
paraphernalia found within the residence.
On the second day of their deliberations, the jurors found defendan t not
guilty of the first-degree manufacturing charge, but guilty of the remaining
counts in the indictment.
Sentencing
The trial judge imposed an eighteen-year custodial term with a nine-year
parole disqualifier on count four, and a concurrent five-year term on count six.
All other convictions merged.
A-4938-18T1
13
The First Appeal
Defendant appealed, among other things, the denial of his motion to
suppress. His arguments, which we need not repeat here, included other pretrial
and trial issues, as well as a challenge to his sentence. Brown, slip op. at 11.
In an unpublished portion of this court’s opinion, we remanded the case
to the trial court to decide the limited issue of whether defendant had consented
to each successive search of the rooms and safe in his home. Id. at 20. We
instructed the trial court to "perform a complete factor-by-factor King7 analysis"
Ibid.
To assist the court on remand, we "note[d] that several (but not all) of the
factors in the King analysis are clearly present or absent." Id. at 21. As to the
five involuntariness factors, the State conceded that King factor one (defendant
was "under arrest when his consent was sought") was established. The State
also conceded the presence of factor four ("consent was give[n] where the
subsequent search resulted in a seizure of contraband which the accused must
have known would be discovered."). Ibid.
7
King, 44 N.J. at 352-53. The trial court's original written opinion after the
suppression hearing recited the King factors, but did not apply them individually
to the facts of this case.
A-4938-18T1
14
We also held that King coercion factor five ("consent was given while the
defendant was in handcuffs") was "patently clear," noting, "[t]he mere fact the
officers temporarily removed the handcuffs several times from defendant to
enable him to turn a key or to sign a consent form does not matter." Id. at 21-
22.
Our previous opinion also preliminarily addressed the offsetting King
factors. We held that offsetting factor two ("defendant admitted his guilt before
consent") was not established. Ibid.
We left the remaining coercion and offsetting King factors to "the motion
judge’s careful reassessment." Id. at 22.
Finally, we requested the motion judge to reexamine "whether the police
had the right at the scene of the motor vehicle stop—after arresting and
handcuffing defendant—to ask him to consent to a search of his residence
located several blocks away." Ibid. We asked this reexamination to proceed in
light of pertinent case law, including the Supreme Court's opinions in Carty, 170
N.J. at 635 (invalidating certain suspicionless car searches in motor vehicle
stops), and Domicz, 188 N.J. at 285 (distinguishing the context of consent to
search a home provided by a defendant at the residence from consent to search
a motor vehicle at the roadside). Ibid. We further instructed the trial court to
A-4938-18T1
15
reexamine its finding that the residence was known to police as being within an
area of drug activity, and reconsider whether that information "justified the
police in requesting defendant’s consent and in transporting him in handcuffs
there." Id. at 22-23.
The Court's Opinion on Remand
In its fifteen-page written opinion on remand, the trial court once again
upheld the warrantless search of defendant's premises, and the validity of
defendant's consent.
First, the court concluded that, although it was not constitutionally
required, the officers had a sufficient reasonable and articulable suspicion to
request consent from defendant to search his home. The court reasoned, "[g]iven
the sizable quantity of heroin found on defendant’s person, the bag of marijuana
recovered from his car, the officers' knowledge of the drug trafficking area
encompassing defendant’s residence, and defendant’s recent familiarity with his
Miranda and consent-to-search rights," the officers "had a sufficient lawful basis
while at the motor vehicle stop to seek defendant’s consent to search his home."
The trial court observed that the facts of this case do not present the same
"problems caused by standardless requests for consent to search" that were
contemplated by the Court in Carty, 170 N.J. at 644. First, the judge found
A-4938-18T1
16
defendant’s motor vehicle stop was no longer a "minor traffic infraction" based
on the seizure of the CDS, it escalated into an indictable investigation. Although
"defendant was not physically in his home like [the defendant in] Domicz when
he consented to a search of his residence," defendant had already been
Mirandized and arrested by the time his consent was requested. Thus, although
defendant lacked the "secur[ity] in his own home" to reject the officer’s consent
request, he had nonetheless already been fully apprised as to both his Miranda
and consent-to-search rights. Consequently, the judge found "defendant was
fully capable of providing a voluntary consent."
Application of the King Factors
The trial court next addressed the King factors, and concluded that
defendant’s consent to search his home and the safe was voluntary. The court
performed a room-by-room analysis, including the search of the contents of the
safe.
With respect to rooms one and two, the court found King coercion factor
three (the consent was obtained only after the accused had refused initial
requests for consent to search), and mitigating factor one (the consent was given
where the accused had reason to believe the police would find no contraband),
did not weigh in favor of coercion.
A-4938-18T1
17
The court noted that, as to both rooms one and two, defendant did not
reject the officers' request to search either room. Furthermore, "[t]here was
nothing placed on the record as to where, specifically, the contraband was
seized. It is thus inconclusive whether defendant had reason to believe that the
officers would not find contraband."
The court found King offsetting factor three (defendant affirmatively
assisted the police officers), was present because "defendant identified his room,
identified the key that unlocked the door, and physically unlocked the door."
As to defendant’s consent to search the safe, the court found defendant
questioning the officer as to what would happen if he refused to consent to the
officer’s search, "did not constitute an initial refusal to sign the form[.] He
merely sought clarification as to what would transpire if he exercised that right."
The court found permissible the officer’s response to defendant that,
should he decline to consent to the search, a warrant would be sought. According
to the court, the officer’s response did not constitute coercion, but was rather "a
fair prediction of events that would follow."
Further, the court ruled that offsetting King factor one as to the safe did
not favor coercion. The court acknowledged that a safe is a confined space.
Therefore, defendant had reason to believe that the officers would find
A-4938-18T1
18
contraband once he consented to a search of the safe. The court further noted
that defendant had assisted the officers with their search by conceding
ownership of the safe and identifying the key that unlocked it. Thus,
"[offsetting] King factor three weighs in favor of voluntariness."
The "Totality" Finding
After completing this factor-by-factor discussion of the King factors, the
trial court concluded that the "totality of the circumstances indicate[d] that the
search of the safe was voluntary." Defendant had consented to four searches in
a period of less than two hours: his car, the first room, the second room, and the
safe. "Prior to each search, defendant was apprised as to his rights in a consent-
to-search [scenario]. Thus, by the time the officers sought defendant’s consent
to search the safe, defendant possessed a strong familiarity with his consent -to-
search rights."
The trial court accordingly held that the State had satisfied its burden that
defendant’s consent to search the safe was voluntary, and once again denied
defendant’s motion to suppress.
This renewed appeal by defendant followed.
A-4938-18T1
19
II.
Defendant raises the following points in his brief 8 on the current appeal:
POINT I
FOLLOWING AN APPELLATE REMAND, THE
LAW DIVISION ERRED BY AGAIN DENYING
BROWN’S MOTION TO SUPPRESS. THE
OFFICERS’ WARRANTLESS EXPANSION OF A
ROADSIDE VEHICLE STOP INTO THE
ARRESTEE’S HOME WAS A FISHING
EXPEDITION THAT VIOLATED THE ARRESTEE’S
CONSTITUTIONAL RIGHT TO BE SECURE IN HIS
HOME AGAINST UNREASONABLE SEARCHES.
U.S. CONST., AMENDS. IV, XIV; N.J. CONST.,
ART. I, PAR. 7.
A. Officers at the roadside stop lacked a
reasonable and articulable basis for asking
[defendant] to authorize a search of his home.
B. [Defendant’s] so-called consent to search his
home was involuntary.
C. The Law Division erred by conflating
voluntary consent with an arrestee not forcefully
objecting to police.
In evaluating a trial judge’s ruling on a suppression motion, we afford
considerable deference to the judge’s role as a fact-finder. Our review of the
judge’s factual findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463,
8
At the State's request, we also allowed and considered post-argument
supplemental briefs.
A-4938-18T1
20
470 (1999). We must defer to those factual findings "so long as those findings
are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J.
249, 262 (2015) (internal citations omitted). As part of that deference, we
particularly must respect the trial judge’s assessments of credibility, given the
judge’s ability to have made "observations of the character and demeanor of
witnesses and common human experience that are not transmitted by the
record." Locurto, 157 N.J. at 474 (internal citations omitted).
However, we owe no deference to the trial judge’s conclusions of law. See
State v. Hinton, 216 N.J. 211, 228 (2013) (internal citations omitted). Nor are
we "obliged to defer to clearly mistaken findings . . . that are not supported by
sufficient credible evidence in the record." State v. Gibson, 218 N.J. 277, 294
(2014).
A.
We begin our discussion of the consent-to-search issues by repeating
passages from our previous unpublished opinion.
The United States Constitution and the New Jersey Constitution both
guarantee the right of persons to be free from unreasonable searches and seizure
in their home. U.S. Const. amend. IV; N.J. Const. art. 1 ¶ 7. Warrantless
searches are presumptively unreasonable unless, among other exceptions,
A-4938-18T1
21
voluntary consent to the search, without coercion or duress, is provided.
Domicz, 188 N.J. at 308; see also State v. Bryant, 227 N.J. 60, 69 (2016).
The State has the burden of demonstrating that the consent-to-search
exception applies. State v. Legette, 227 N.J. 460, 472 (2017). Moreover, "[t]he
State’s burden is particularly heavy when the search is conducted after
warrantless entry into a home." Ibid. (recognizing that the home "bears special
status"). See also Bryant, 227 N.J. at 69 ("Indeed, 'we accord the highest degree
of protection to privacy interests within the home' . . . because 'the sanctity of
one’s home is among our most cherished rights.'") (first quoting State v.
Johnson, 193 N.J. 528, 532 (2008); and then State v. Frankel, 179 N.J. 586, 611
(2004)).
Our Supreme Court has held that in order for a search "[t]o be voluntary,
the consent must be unequivocal and specific and freely and intelligently given."
King, 44 N.J. at 352 (internal quotations omitted).
An "essential element" of such consent is the individual’s "knowledge of
the right to refuse [it]." State v. Johnson, 68 N.J. 349, 353-54 (1975). Whether
spoken or written, such "assent . . . is meaningless unless the consenting party
understood his or her right to refuse" to give it. State v. Suazo, 133 N.J. 315,
323 (1993) (citing Johnson, 68 N.J. at 353-54). Consent is generally a factual
A-4938-18T1
22
question determined by an assessment of the totality of the circumstances. State
v. Koedatich, 112 N.J. 225, 264 (1988). However, trial courts must adhere to
established legal principles in evaluating those circumstances.
B.
As a preliminary matter, we briefly identify—but do not resolve—the
constitutional question of whether the police, after finding drugs in defendant's
car and on his person, needed to have a reasonable and articulable suspicion that
there would be evidence of criminal activity at his house in order to request at
the roadside his consent to search his house. To date, there is no published
opinion in our State that expressly answers that question of law.
Certain aspects of the analysis are undisputed. Defendant concedes that
the police, having smelled burnt marijuana during a lawful traffic stop, had a
constitutional basis to search his person for drugs. He also does not contest that
the police, having found drugs on his person, had the authority to arrest and
handcuff him. In addition, he does not dispute that, given these facts, the police
had a valid basis to request his consent to search his car, which he voluntarily
provided. He challenges the propriety of what occurred thereafter, and, in
particular, the validity of the consents he provided to search the house and the
safe.
A-4938-18T1
23
As we indicated in our previous opinion remanding the disputed consent
issues to the trial court, a series of Supreme Court opinions sheds some light on
the analysis.
First, in 2002 the Supreme Court in Carty, 170 N.J. at 635, held that "in
order for a consent to search a motor vehicle and its occupants to be
[constitutionally] valid, law enforcement personnel must have a reasonable and
articulable suspicion of criminal wrongdoing prior to seeking consent to search
a lawfully stopped motor vehicle." This "reasonable and articulable suspicion
standard" is derived from Article I, Paragraph 7 of the New Jersey Constitution,
and serves the "prophylactic purpose of preventing the police from turning
routine traffic stops into a fishing expedition for criminal activity unrelated to
the lawful stop." Ibid.
The Court in Carty reasoned that because a motorist cannot leave the area
before a search is completed, the detention associated with roadside searches is
unlike a "mere field interrogation" where an officer may question an individual
"without grounds for suspicion." Id. at 640 (quoting State v. Maryland, 167 N.J.
471, 483 (2001)). Roadside consent searches are "instead more akin to an
investigatory stop that does involve a detention." Ibid. Such a stop "traditionally
A-4938-18T1
24
has required reasonable and articulable suspicion." Ibid. (citing Maryland, 167
N.J. at 487).
The Court likewise was concerned about standardless requests to search,
as well as officers "purely discretionary" decisions to search, leading to unjust
outcomes and racial profiling. Id. at 641-42. Further, in the context of a motor
vehicle stop, where an individual is at the side of the road and confronted by an
officer seeking to search his or her vehicle, it is likely that the individual will
feel "compelled" to consent to the search. Id. at 644.
The Court stressed in Carty that it was concerned about motor vehicle
stops for traffic violations being unduly prolonged by police officers through
consensual searches that amount to "fishing expeditions" in the absence of any
particularized suspicion that the stopped motorist had engaged in any criminal
activity. Id. at 647. The Court declared that "unless there is a reasonable and
articulable basis beyond the initial valid motor vehicle stop to continue the
detention after completion of the valid traffic stop, any further detention to
effectuate a consent search is unconstitutional." Ibid. (emphasis added). By
adopting the prophylactic requirement of suspicion, the Court largely spared
motorists the dilemma of choosing between giving consent to search the vehicle
A-4938-18T1
25
and possibly only receiving a warning for the traffic violation, or refusing such
consent and being issued a summons.
Four years later in State v. Birkenmeier, 185 N.J. 552, 564 (2006), decided
eight months before Domicz, the Court identified—but did not resolve—
whether Carty's requirement of suspicion extends to a roadside request to search
a motorist's home. In Birkenmeier, the defendant was pulled over in his vehicle
and asked for consent by the police officer to search his home after the officer
found marijuana in the defendant’s car and arrested him. Id. at 557. The
defendant argued the search of his home was unlawful because the request for
consent to search was not preceded by probable cause. Id. at 563-64
At the outset, the Court made clear in Birkenmeier that the defendant’s
premise (that the officer’s required probable cause before seeking consent to
search) was incorrect. Ibid. Instead, the Court noted the less rigorous standard,
as articulated in Carty, is whether an officer has a "reasonable and articulable
suspicion." Ibid.
Analyzing the facts in Birkenmeier, the Court concluded that the police
officer not only met the applicable standard under Carty, but also did, based on
the facts of that case, have probable cause to seek the defendant’s consent to
search his home. Ibid. The police were given information by a confidential
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informant who had previously provided information that led to major drug
seizures. Id. at 555. The informant also gave information regarding the time the
defendant would be leaving his home to make a marijuana delivery, provided a
physical description of the defendant, as well as the tote bag the defendant would
be carrying drugs in, and the make and model of the defendant’s car. Ibid.
In a footnote in Birkenmeier highly pertinent to the present scenario, the
Court stated that "[f]or purposes of this analysis, we assume, explicitly without
deciding, that the requirements of State v. Carty apply to a request for consent
to search something other than a motor vehicle addressed to a party in custody."
Id. at 564 n. 3 (emphasis added). The Court's assumption is significant here,
because defendant was likewise placed in custody at the roadside for a drug
offense, and the police asked him to search "something other than [his] motor
vehicle."
A few months later in 2006, the Court addressed in Domicz, 188 N.J. at
285, a consent search in the context of a non-roadside setting of a defendant's
home, where the police asked for his consent to search the premises. A narrow
four-member majority of the justices held that Carty's requirement of suspicion
does not extend to such doorstep requests for consent. Three justices opined
that they would impose that requirement in the home setting as well.
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Factually in Domicz, police officers requested consent to search the
defendant’s home after knocking on his door outside of the home. The Court
majority distinguished these facts from Carty, because Carty "dealt with a
problem peculiar to automobiles and disproportionately affecting minority
drivers—the indiscriminate abuse of consent searches of cars whose operators
had been stopped for minor traffic infractions." Id. at 305-06.
The majority in Domicz further reasoned that "there is a greater degree of
compulsion to accede to a consent search when a motorist is stranded on a
highway after a motor vehicle stop for a minor traffic infraction and the
detaining police offer requests permission to search" than when "a person is
secure in his own home and not under any form of detention and a similar request
is made." Id. at 306.
The Domicz majority reasoned that the inherent coercive predicament of
a driver who is stopped on the highway and faced with the perceived choice of
either refusing consent to search, and therefore increasing the likelihood of a
traffic ticket as opposed to a warning, is not present when an officer requests
consent to search an individual’s home. Ibid. The Court stated, "[t]he choices
are not so stark for the person who, in the familiar surroundings of his home,
can send the police away without fear of immediate repercussions." Ibid.
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The three justices who dissented in part in Domicz expressed concerns
that our case law has long recognized "greater protections against unreasonable
searches and seizures of homes than for other encounters." Id. at 318. The
dissenters stated that "[i]t naturally follows that whatever protections apply to
an automobile search, at a minimum, they must apply to a home." Id. at 319.
Hence, the dissenters would have extended the suspicion requirement of Carty
to a police officer's request at a house to ask the occupant for consent to enter
and search it. They favored a remand to the trial court for a hearing to determine
if such suspicion existed. Id. at 320.
In the ensuing fourteen years, no published opinion has resolved what was
assumed but not decided in Birkenmeier: Do the police need reasonable and
articulable suspicion in order to be constitutionally permitted to ask a defendant
at the roadside if he will consent to a search of his home? The trial court on
remand in this case answered that question in the negative.
The State and defendant have presented us with strong competing reasons
about whether to apply the Carty suspicion requirement to the present roadside
setting. Among other points, defendant urges that requiring such suspicion will
deter coercive police practices that would otherwise take undue advantage of
motorists who are isolated at the side of a roadway. The defense suggests,
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although it has no data on the subject, that a failure to extend Carty will result
in race-based roadside police requests to ask minority drivers for consent to
search their homes.9 The State, meanwhile, stresses that once, as here, a motorist
has been arrested at roadside for a criminal offense, his expectations of privacy
and freedom are comparatively diminished and the police should not have to
prove suspicion in order to ask for his consent to a search of his residence.
As an intermediate appellate court, we are loath to resolve this important
question of constitutional law when, as it turns out because of our King factor
analysis, infra, it is unnecessary to reach the issue. See Comm. to Recall Robert
Menendez for the Office of U.S. Senator v. Wells, 204 N.J. 79, 95 (2010) (stating
that courts "strive to avoid reaching constitutional questions unless required to
do so"); Randolph Twp. Ctr., L.P. v. Cty. of Morris, 186 N.J. 78, 80 (2006)
(courts "should not reach a constitutional question unless its resolution is
imperative to the disposition of litigation."). We therefore pass over this issue
9
The Attorney General's report to the Department of Justice cited by defendant
in its supplemental brief does not address the home-search issues presented in
this case, but instead focuses on roadside requests for consent to search motor
vehicles.
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and defer it to a future case where it is vital to the legal analysis. 10 In the
meantime, perhaps the Court will have occasion to speak to the issue, and clarify
the import of its own line of precedents from Carty through Domicz.
C.
We turn to what proves to be the dispositive basis for our decision: the
application of the King factors.
In its seminal opinion in King, the Court articulated several factors to
guide courts in our State as to whether a person's supposed consent for police to
search a dwelling without a warrant is voluntary. As the Court stated, these
following five "King factors" weigh against voluntariness, and tend to show that
a person’s consent was coerced:
(1) that consent was made by an individual already
arrested; (2) that consent was obtained despite a denial
of guilt; (3) that consent was obtained only after the
accused had refused initial requests for consent to
search; (4) that consent was given where the subsequent
search resulted in a seizure of contraband which the
accused must have known would be discovered; and (5)
that consent was given while the defendant was
handcuffed.
[Id. at 352-53 (internal citations omitted).]
10
We also have no need to address the trial court's finding in dicta that
reasonable and articulable suspicion was present here, except to comment that
the finding of drugs in a motorist's car and on his person might not be per se
indicative that the motorist keeps illegal drugs at his residence.
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Additionally, the Court in King delineated three offsetting factors that can
weigh in favor of a finding of voluntariness. Those offsetting factors are
whether: "(1) consent was given where the accused had reason to believe that
the police would find no contraband; (2) defendant admitted his guilt before
consent; (3) defendant affirmatively assisted the police officers." Id. at 353
(internal citations omitted).
The Court in King explained that the "existence or absence of one or more
of the above factors is not determinative of the [voluntariness] issue." Ibid.
Because the factors "are only guideposts to aid a trial judge in arriving at his
conclusion," a trial judge should determine the issue of voluntary consent by
considering "the totality of the particular circumstances of the case before him."
Ibid.
More recently, in State v. Hagans, 233 N.J. 30, 42 (2018), the Supreme
Court reaffirmed the continued applicability of the King voluntariness factors.
As the Court reiterated in Hagans, the King factors should not be applied
mechanically, and that, ultimately, the totality of circumstances dictate the
outcome. Id. at 42-43.
This court has already determined several of the King coercion factors and
offsetting factors in defendant’s previous appeal. Brown, slip op. at 21. The
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State in the previous appeal conceded that King factor one (defendant was
"under arrest when his consent was sought") was established. Ibid. The State
also previously conceded the presence of coercion factor four ("consent was
given[n] where the subsequent search resulted in a seizure of contraband which
the accused must have known would be discovered."). Ibid.
This court also concluded that King coercion factor five ("consent was
given while the defendant was in handcuffs") was "patently clear," noting, "[t]he
mere fact the officers temporarily removed the handcuffs several times from
defendant to enable him to turn a key or to sign a consent form does not matter."
Id. at 21-22.
We also examined the offsetting King factors, and held that offsetting
factor two ("defendant admitted his guilt before consent") was not established.
Ibid. We left the remaining coercion and offsetting King factors to "the motion
judge’s careful reassessment." Ibid.
The remaining King factors to analyze are: coercion factor two ("that
consent was obtained despite a denial of guilt"); and coercion factor three ("that
consent was obtained only after the accused had refused initial requests for
consent to search."). Likewise, we must determine whether offsetting King
factor one ("consent was given where the accused had reason to believe that the
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police would find no contraband"); and offsetting factor three ("defendant
affirmatively assisted the police officers"), are present here as to the initial
consent.
A. Consent to Search the Home
1. Offsetting King Factor One
The trial court found offsetting King factor one ("consent was given where
the accused had reason to believe that the police would find no contraband"),
was not established as to the search of the home. The judge reasoned that
"[t]here was nothing placed on the record as to where, specifically, the
contraband was seized. It is thus inconclusive whether defendant had reason to
believe that the officers would not find contraband."
With all due respect to the trial court's ruling of inconclusiveness, the
record indicates otherwise. According to Officer DeJesus’s testimony, after
searching rooms one and two, "[the officers'] main focus was just so much
paraphernalia that was in the house, we just—it was like where was the solid
narcotics." After searching rooms one and two, and finding a considerable
amount of drug paraphernalia and "a lot of empty bags," DeJesus asked
defendant, "[w]here’s the narcotics?" Defendant replied that there were no
drugs in the house. Yet 1,050 bags of heroin were found inside the safe.
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While it is theoretically possible that defendant did not expect the officers
to find drugs inside the home, this premise is highly unlikely, considering the
amount of paraphernalia, empty bags, and residue the officers found in the first
two rooms. The record most logically reflects that offsetting King factor one is
not present as to the search of the house. Defendant most likely would have
expected the police to find contraband once they entered those rooms.
2. Offsetting King Factor Three
The trial court found offsetting King factor three present because
defendant affirmatively assisted the police officers by identifying the key to the
first two rooms and unlocking those rooms. Again, the record does not appear
to reasonably support that conclusion.
Officer DeJesus testified that defendant’s keys were confiscated at the
scene of the traffic stop. He also testified that another officer was in possession
of defendant’s keys "the entire time the search took place." Further,
"[defendant] was handcuffed the whole time he was in the apartment [b]esides
the times [the officers] took the handcuffs off so he could open the doors and
stuff."
We agree with defendant's argument that he "had no more de facto control
over the seized keys than he had over his cuffed hands." The fact that the
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officers briefly uncuffed defendant in order to have him open doors with keys
that were in the officers' possession does not show that defendant was actively—
and volitionally—assisting the officers. The record shows that the only reason
the officers asked defendant to unlock the door himself was because they feared
breaking it. Offsetting King factor three does not support defendant’s
voluntariness as to his consent to search the house.
3. King Coercion Factor Two
The record objectively shows that King coercion factor two (that consent
was obtained despite a denial of guilt) is present here.
In defendant’s first appeal, we found offsetting King factor two (defendant
admitted his guilt before consent), was not present. Brown, slip op. at 21-22.
Despite defendant’s contention to the contrary, these factors are not mutually
exclusive with one another. For instance, a defendant could remain silent,
thereby not admitting to guilt before giving his consent, yet not expressly deny
his guilt.
Nevertheless, the record manifestly indicates that King coercion factor
two is indeed present. When asked by the officers at the roadside stop if they
would find drugs at his house, defendant said no. This is in sharp contrast to his
ready willingness to reveal to the officers that he was carrying heroin in his
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36
pocket. Once at his home, defendant continued to deny that the officers would
find any drugs.
4. King Coercion Factor Three
The trial court on remand found that King coercion factor three was not
present because defendant never refused consent to search his home. The
officers sought defendant’s consent to search his home at the vehicle stop and
defendant orally consented. Once at his home, defendant was advised of his
right to refuse consent and nonetheless signed the form. The officers did not
ask defendant more than once. Further, the trial court reasoned that by
identifying a key and unlocking the doors to the rooms, defendant "manifested
his continued consent to search."
Defendant argues that he refused the officers' initial request to search by
limiting his consent to the first room in the house, as evident by him writing the
word "room" on the consent-to-search form. According to defendant, this
handwritten limitation manifested his denial of the officer’s request to search
other parts of the home.
We do not adopt defendant's interpretation of his conduct in writing the
word "room" on the form. We recognize that once defendant was put in a
position by the police where he was arrested at the roadside, handcuffed, driven
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back to his home in a police car, and consent forms were put in front of him, he
may well have felt coerced to sign the form. Yet, he was indisputably told of
his right to refuse. On balance, we regard this as a close question, and we defer
to the trial court's assessment that King coercion factor three was not proven.
B. Consent to Search the Safe
1. Offsetting King Factor One
The trial court determined in its written opinion that "defendant had
reason to believe that the officers would find contraband once he consented to a
search of the safe," because due to the "limited and confined space [inside of a
safe]; it is, when opened, incapable of easily concealing its contents." (Emphasis
added). The court therefore concluded that offsetting King factor one was not
present here, as to defendant’s consent to search the safe.
We accept the court's reasoning and finding about defendant's likely
expectation that a search of the safe would reveal incriminating evidence.
However, it appears the court misunderstood the implications of this finding and
its impact on offsetting factor one. The offsetting factors weigh in favor of
voluntariness. Here, the judge’s conclusion that defendant had reason to believe
officers would find contraband inside the safe once it was opened, means that
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offsetting factor one is not present, and does not weigh in favor of voluntary
consent. Instead, it favors defendant’s position that his consent was involuntary.
2. Offsetting King Factor Three
The trial court found offsetting King factor three present as to the safe,
because defendant affirmatively assisted the police officers by identifying the
key to the safe. We accept the court's finding but do not give it much weight.
As we have already noted, defendant’s keys were confiscated by police
from the time of the traffic stop. The police remained in control of the keys
throughout the entire encounter. The fact that defendant, while handcuffed,
identified which key on the key ring opened the door to the safe does not have
much significance. The alternative would be for the officer to try every key on
the ring, and inevitably unlock the safe anyway. The "assistance" provided by
defendant in stating which key was the proper one was of minimal consequence.
And, again, defendant's handcuffed status likely restrained him from being
uncooperative or prolonging the search.
3. King Coercion Factor Two
The record shows that King coercion factor two is present here as to the
safe. After searching the first two rooms and finding nothing but paraphernalia
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and empty bags, Officer DeJesus asked defendant "where’s the narcotics?"
Defendant responded, "I’m telling you there’s nothing else in the house."
Although defendant did not explicitly deny that the police would find any
drugs "in the safe" as opposed to "in the house," defendant repeatedly denied
culpability throughout this long encounter that consumed several hours. His
repeated denials shed light on the voluntariness of his consent to open and search
the safe as the last step of the process.
4. King Coercion Factor Three
The trial court reasonably found that defendant did not initially refuse
consent to search the safe in the third room. Defendant did ask one of the
officers what would happen if he refused to sign the consent form, and the
officer replied "[n]othing [because] you could refuse . . . then we would apply
for a search warrant."
The trial court ruled that defendant’s question about the consequences of
refusal did not constitute an initial refusal to sign the form. Rather, defendant
merely sought clarification as to what would transpire if he exercised that right.
We concur with the trial court that the officer’s response to defendant, i.e.,
that defendant could refuse, and then the officers would apply for a search
warrant, was a "fair prediction of events that would follow," rather than a
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coercive tactic. Hagans, 233 N.J. at 42. Therefore, the officer’s response was a
fair predictor of the future events that would occur had defendant refused
consent, and King coercion factor three is not established for this phase.11
Summary
All told, a logical analysis of the King factors in this case tilts heavily in
favor of a legal conclusion of involuntariness.
With respect to the search of the house, four of the five King coercion
factors are indicative of coercion, whereas none of the offsetting factors are
objectively demonstrated.
The factor-by-factor analysis as to the search of the safe leads to the same
conclusion, even though coercion factor three arguably does not pertain.
We recognize that, as King itself instructs, and Hagans reiterates, an
assessment of voluntariness is not a mechanical counting exercise, and that the
ultimate question is whether the "totality of circumstances" is more indicative
of voluntariness rather than coercion. Hagans, 233 N.J. at 42; King, 44 N.J. at
11
In Hagans, the officer preemptively told the defendant that a search warrant
would be obtained if he refused consent. Ibid. The defendant in that case did
not ask the officer what would happen if he refused consent. Therefore , the
Court did not resolve whether the defendant's query comprised an initial refusal,
or rather simply an informational inquiry.
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353. We also are mindful of the trial court's feel for the case and the perspective
in having presided over the suppression hearing. Indeed, we are grateful for the
court's second look at the proofs and its rather lengthy written decision on
remand.
Nevertheless, we conclude that the circumstances as a whole point heavily
in the direction of involuntariness. It must be remembered that the police
request to search defendant's house was first made at the side of the road after
he had already been frisked, found with drugs, arrested, and placed in handcuffs.
He was not then in the familiar surroundings of his own dwelling. His realistic
ability to refuse consent in such a stressful time, place, and condition was
doubtful. Once at the house and presented with the forms, his oral assent to the
search had already occurred.
The sequence of events was connected and, as it turned out, produced the
signatures that the police believed relieved them of the necessity for obtaining
a warrant. Although reasonable and articulable suspicion might not be
constitutionally required to set this chain of consent in motion, the record
provides strong indicia of implied coercion. A reasonable person in defendant's
shoes would likely have similarly yielded.
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Lastly, we must not overlook or undervalue the heightened protection that
the federal and state constitutions provide in safeguarding privacy within one's
own home. See, e.g., Legette, 227 N.J. at 472; Bryant, 227 N.J. at 69. To affirm
the warrantless searches in this case, where the King factors so heavily tilt
against the State, is not consistent with those home-as-castle principles.
The trial court's denial of the motion to suppress the fruits of the search
of defendant's house and the contents of the safe is therefore reversed. We
vacate defendant's conviction, and remand for further proceedings. We do not
rule out, however, the prosecution's ability to pursue a new trial on some or all
of the charges with other evidence.
Reversed and remanded. We do not retain jurisdiction.
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