1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

State of New Jersey v. Byseem T. Coles (A-15-12) (070653)

Argued October 22, 2013 – Decided May 19, 2014

LaVECCHIA, J., writing for a majority of the Court.

In this appeal, the Court considers the validity of a warrantless search, which was consented to by the 

homeowner and which occurred while the defendant was unlawfully detained.

Late on May 18, 2009, Camden City Police Department Sergeant Zsakhiem James responded to a report of 

a robbery. James quickly arrived at the location and saw defendant Byseem T. Coles, who matched the description 

of the robber, walking in his direction on the street where the crime occurred. James exited his vehicle and 

questioned defendant, who appeared nervous, detaining him after he gave suspicious answers. Although a patdown 

revealed no weapons or evidence of the robbery, defendant was placed in the back seat of a patrol car. Defendant

claimed he lived on the street where he was walking, but he was unable to present identification proving his claim. 

Instead, he told James that there were relatives at his home who could identify him. At that point, the robbery 

victim arrived for a showup identification. Although defendant’s clothes matched those of the robber, the victim 

was unable to identify him as the perpetrator. James and another detective then left defendant in the patrol car while 

they walked to the nearby home at which defendant claimed to reside. 

Thelma Coles, the homeowner and defendant’s aunt, confirmed that defendant lived in the house. James 

wanted to view defendant’s room since he believed defendant had stopped home after the robbery. After repeatedly 

asking Ms. Coles for permission to enter the room, she agreed. The door to defendant’s room was ajar a few inches 

and a locked padlock was hanging from it. Other doors on the floor also were fitted with padlocks, and Ms. Coles 

explained that the locks were primarily intended to keep younger children from rummaging through other people’s 

belongings. In his search of the room, James discovered a shotgun and three rifles.

Defendant was indicted on multiple weapons charges, including second-degree certain persons not to 

possess weapons. He moved to suppress the evidence found in his bedroom. The trial court denied the motion, 

finding that defendant was lawfully detained because police had reasonable suspicion to stop him and pat him down. 

The court also concluded that James reasonably believed that Ms. Coles had authority to consent to the search of 

defendant’s bedroom and that her consent was voluntarily given since she signed the consent form and admitted that 

she saw no reason why she should not do so. Defendant pleaded guilty to second-degree certain persons not to 

possess weapons and was sentenced to a five-year prison term with five years of parole ineligibility.

The Appellate Division reversed the denial of defendant’s motion to suppress and his conviction. The 

panel focused on whether the third-party consent search was legitimate, determining that Ms. Coles’s consent was 

invalid since her familial and informal landlord status did not suffice to give her common authority over defendant’s 

bedroom. Thus, the failure of the police to seek defendant’s consent, particularly in light of his nearby retention 

under what the panel viewed as questionable circumstances, rendered the search unlawful. The panel noted that 

reasonable suspicion to continue defendant’s detention likely ceased to exist when the victim could not identify him. 

The Court granted the State’s petition for certification. 212 N.J. 432 (2012).

HELD: Under the circumstances presented here, a third party’s consent to conduct a warrantless search of a 

defendant’s living space is insufficient to justify the search when the defendant is unlawfully detained by police. 

1. The New Jersey and Federal Constitutions guarantee freedom from unreasonable searches and seizures, viewing

the warrantless entry into a person’s home as presumptively unreasonable. In order to sustain the validity of a 
2

warrantless search, the State must demonstrate that it fits within an accepted exception to the warrant requirement, 

such as the consent-to-search exception. In consent-based searches, the State bears the burden of proving that 

proper consent was freely and voluntarily given. In a series of cases dating back forty years, the United States 

Supreme Court has addressed the right of police officers to conduct warrantless searches of homes based on consent 

given by a third party. In Georgia v. Randolph, 547 U.S. 103, 122-23 (2006), the Supreme Court considered the 

validity of an occupant’s consent in the face of an objecting co-occupant, holding that it is objectively unreasonable 

for police to rely on a consenting occupant when faced with a present and objecting co-occupant. However, the 

search may be deemed objectively reasonable where a potentially objecting co-occupant is not present for the 

threshold colloquy, so long as there is no evidence that the co-occupant was deliberately removed by police to avoid 

the objection. Id. at 121. In the Supreme Court’s most recent opinion on this issue, Fernandez v. California, 571 

U.S. ___, ___ (2014), it reaffirmed that the objective-reasonableness test prevails and clarified that a potentially 

objecting occupant whose absence is due to a lawful detention or arrest stands in the same shoes as an occupant who 

is absent for any other reason. (pp. 16-21)

2. Like federal law, New Jersey law recognizes a third party’s ability to consent to a search when the consenter has 

common authority for most purposes over the searched space. Although a police officer need not be ultimately 

correct about a party’s ability to consent, the officer’s belief must have been objectively reasonable in light of the 

facts and circumstances known at the time of the search. (pp. 21-23)

3. Here, turning first to the seizure of defendant’s person, the Court notes that it is undisputed that a police officer 

may conduct an investigatory stop where the officer has a particularized suspicion based on an objective observation 

that the person has engaged, or is about to engage, in criminal wrongdoing. The stop must be reasonable and 

justified by articulable facts. The duration of a properly-conducted stop may be extended for a reasonable, limited 

period for investigative purposes. In order for a continued detention to be deemed reasonable, it must have been 

reasonable at its inception and throughout its entire execution. When the duration of the detention is at issue, courts 

must determine whether the police diligently pursued a means of investigation that was likely to quickly confirm or 

dispel their suspicions, during which time the defendant’s detention was necessary. (pp. 23-28) 

4. The Court agrees with the trial court and the Appellate Division that the initial stop and detention of defendant 

was reasonable. However, once defendant was not identified as the perpetrator during the showup, his continued 

detention was unreasonable. Once a detention becomes unreasonable, a de facto arrest occurs, requiring that the 

police have probable cause that the defendant has committed or is committing an offense. Here, defendant’s 

detention continued even though the showup failed to develop probable cause for his arrest. However, in light of 

James’s suspicion and defendant’s lack of identifying documents, the Court allows that James had the flexibility to 

detain defendant while seeking confirmation of his identity from his relatives. Once the officers confirmed 

defendant’s identity, they no longer had sufficient legal reason to continue his detention. (pp. 28-31) 

5. Applying Fernandez, Ms. Coles’s consent was invalid since it was manufactured through defendant’s unlawful 

detention. Thus, based on the protection afforded by Article I, Paragraph 7 of the New Jersey Constitution against 

unreasonable searches of one’s home and living space and under the totality of these circumstances, the warrantless 

search of defendant’s bedroom was not objectively reasonable. This holding is bolstered by Fourth Amendment 

principles and the Supreme Court’s holding in Fernandez. In light of this conclusion, there is no need to address 

whether Ms. Coles’s authority was sufficient to grant access to defendant’s room. (pp. 31-34) 

The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

JUSTICE PATTERSON, DISSENTING, expresses the view that state and federal search and seizure 

jurisprudence requires reversal of the Appellate Division’s determination and that, contrary to the majority’s 

assertion, its holding is unsupported by federal search and seizure jurisprudence because this case falls outside of the 

narrow category of situations defined by the Supreme Court in Randolph and Fernandez, in particular since the 

potentially objecting occupant was not present at the home when the police arrived, or at any time during the search. 

CHIEF JUSTICE RABNER, JUSTICE ALBIN, and JUDGES RODRÍGUEZ and CUFF (both 

temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON filed a separate 

dissenting opinion. 
1

SUPREME COURT OF NEW JERSEY

A-15 September Term 2012

070653

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BYSEEM T. COLES,

Defendant-Respondent.

Argued October 22, 2013 – Decided May 19, 2014

On certification to the Superior Court, 

Appellate Division.

Frank Muroski, Deputy Attorney General,

argued the cause for appellant (John J. 

Hoffman, Acting Attorney General of New 

Jersey, attorney; Hillary K. Horton, Deputy 

Attorney General, of counsel and on the 

briefs).

Daniel V. Gautieri, Assistant Deputy Public 

Defender, argued the cause for respondent 

(Joseph E. Krakora, Public Defender, 

attorney).

Alexander R. Shalom argued the cause for 

amicus curiae American Civil Liberties Union 

of New Jersey Foundation (Edward L. Barocas, 

Legal Director and Ronald K. Chen, Acting 

Dean of Rutgers Constitutional Litigation 

Clinic Center for Law & Justice attorneys; 

Mr. Shalom, Mr. Barocas, Mr. Chen, and 

Jeanne M. Locicero, of counsel and on the 

brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.
2

This appeal involves the validity of the warrantless search 

of the bedroom of defendant, Byseem Coles, a young adult, nine 

days shy of twenty years old when the events pertinent to this 

appeal occurred. Defendant lived with other family members in 

his aunt’s home in Camden where he had his own bedroom. The 

bedroom door had a padlock on it to keep others, especially 

young children living in the household, from getting into his

private belongings. 

On the evening of March 18, 2008, when defendant was 

walking in the neighborhood in which he lived, he was detained 

by a police officer investigating a reported robbery in the 

area. After a showup in which the robbery victim failed to 

identify defendant as the perpetrator, and after a search of 

defendant’s person that produced no evidence linking defendant 

to the crime, defendant’s detention was continued because he had 

no identifying documents on his person. At defendant’s urging, 

two officers walked a few houses over from where defendant was 

being held in a patrol car to ask one of defendant’s relatives 

to confirm that he lived at the address he had given the police. 

Instead of merely confirming defendant’s identity and that he 

lived in the home, the inquiries by the police turned into a

concerted effort to obtain defendant’s aunt’s permission to 

search defendant’s bedroom. During the ensuing search, weapons
3

unrelated to the robbery under investigation were found in his 

room. 

We conclude that defendant’s detention was unlawful. The 

police lacked probable cause to continue his detention after the 

showup and the search of defendant produced no evidence linking 

him to the crime. Although the police officers were entitled to 

a reasonable, but brief, opportunity to confirm defendant’s 

identity, that identification was accomplished at the threshold 

of defendant’s home. When the police efforts turned immediately 

thereafter to securing from defendant’s aunt consent to search 

defendant’s bedroom, their actions were premised on the belief 

that the man held in the patrol car was Byseem Coles. However, 

at that point, defendant’s detention ceased to be lawful. The 

interactions with defendant’s aunt cannot be disentangled from 

the unlawful detention of defendant in a patrol car parked a few 

houses down the street. Thus, the objective reasonableness of 

this asserted consent-based search founders on the unlawfulness 

of the police detention of defendant in the totality of these 

circumstances.

Accordingly, under the totality of these circumstances, we 

hold that the warrantless search of defendant’s bedroom was not 

objectively reasonable, and we base that holding on the 

protection provided by Article I, Paragraph 7 of the New Jersey

Constitution against unreasonable searches of one’s home and 
4

personal living space. See State v. Evers, 175 N.J. 355, 384 

(2003) (granting privacy interests in home “the highest degree 

of respect and protection in the framework of our constitutional 

system”). 

Although our decision is based on state constitutional law, 

our holding is bolstered by Fourth Amendment principles. 

Federal case law supports the conclusion that a warrantless

consent-based search is objectively unreasonable and 

unconstitutional when premised on defendant’s illegal detention. 

See Fernandez v. California, 571 U.S. ___, ___, 134 S. Ct. 1126, 

1134, 188 L. Ed. 2d 25, 35 (2014).

I.

A.

The facts as summarized are based on the testimony from the

hearing conducted by the suppression court. Differences between 

what the officer learned at the scene and the information 

elicited at the suppression hearing are highlighted.

At 11:34 p.m. on May 18, 2009, Sergeant Zsakhiem James of 

the Camden City Police Department responded to a report of a

robbery in Camden. The dispatcher informed James that a “male 

had just robbed a female in the area of the 1100 block of 

Lakeshore Drive” and described the perpetrator as a “black male 

wearing black pants and a gray hooded sweatshirt.” James 
5

testified that there was “information that [the perpetrator]

used a weapon,” which James believed to be a handgun.

According to James, he arrived at the location within 

“minutes” and began driving from the 1100 block, where the crime 

took place, toward the 1300 block. James saw defendant, who 

matched the description of the robber, walking in James’s 

direction on the street where the crime took place; in other 

words, defendant was walking toward his home, which was situated 

between defendant and the officer’s approaching vehicle. James 

exited his vehicle, approached defendant, and engaged him in 

conversation. James testified that he detained defendant

because he gave suspicious answers to questioning about where he

was coming from1 and because defendant appeared “nervous” and 

“fidgety.” James conducted a Terry2 frisk and called for a

backup unit because a police dog occupied the back of his K-9 

vehicle and he had no other place in which to secure defendant. 

The patdown of defendant revealed no weapons or any evidence of 

the robbery. Nevertheless, defendant was placed in the back

seat of the backup unit that had arrived. 

James then asked defendant where he lived. Defendant 

replied that he lived at 1287 Lakeshore Drive, the block on 

 

1 Defendant told James that he was coming from a takeout

restaurant several blocks away where, he said, he had purchased 

a soda. 

2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889

(1968).
6

which he had been walking; however, he was unable to produce 

identification to prove it. He told the officers that there 

were relatives at home with whom he lived -- an aunt and a 

cousin -- who could identify him. 

At that point, the victim of the robbery arrived for a 

showup identification and defendant was removed from the police 

vehicle. The victim was unable to identify defendant as the 

perpetrator after viewing his face because, she said, “the 

robber had a mask on.” Based on defendant’s outfit -- the 

ubiquitous black pants and grey hooded sweatshirt of many young 

urban males -- the victim added that defendant’s clothes matched

the clothes the robber had worn.

The officers returned defendant to the back seat of the

patrol car. James, along with a detective, walked six houses 

down the street to the residence at which defendant claimed to 

reside. A woman who identified herself as Thelma Coles, the 

homeowner, answered their knock on the door. James explained 

that the officers were investigating a robbery. He told Ms. 

Coles that they “had a young man in . . . custody who[]

identified himself as Byseem Coles and stated that he lived 

there.” They asked her “if she had any identification for him.” 

She replied that the officers could not have her nephew because 

she had “just heard him inside . . . his room moving and banging 

around.” However, after having another family member check the 
7

bedroom while the officers waited at the threshold, she learned 

that he was not home.

B.

According to James, he then wanted to view defendant’s room 

himself because he believed that defendant had stopped home 

after committing the robbery and that evidence of the crime 

might be discovered in the bedroom. He repeatedly asked Ms. 

Coles for permission to view the room. Although other family 

members urged her not to agree, Ms. Coles ultimately agreed to 

let in only James. 

She directed him to the bedroom at the top of the stairs 

leading from the front door. Once there, James observed a 

locked padlock hanging from the door, although the door was ajar 

a few inches. Other doors on the floor were also fitted with

padlocks. He asked Ms. Coles if she had a key to the padlock on 

defendant’s bedroom door and learned that she did. He also 

learned that a padlock was on defendant’s bedroom door, as well 

as others, to keep others, especially younger children in the 

house, from touching or rummaging through other people’s 

belongings that were kept in their bedrooms. James’s 

questioning of Ms. Coles persisted at the bedroom doorway and he 

extracted from Ms. Coles that she had slept in defendant’s 
8

bedroom recently. No other questions were asked of Ms. Coles at 

the time.3

Concluding that she had authority to consent to a search of 

the room, James began a methodic search that included looking in 

first one, and then a second, duffle bag sitting on the floor of

the bedroom’s closet in order, as he explained it, to look for 

the victim’s purse or a handgun hidden under the bags in the 

closet. After picking up the first zippered-closed bag, James 

opened it because he thought he felt the stock of a shotgun in 

it. Discovering a shotgun in the first bag, he opened the 

second duffle bag that had been underneath and that had fallen 

to the ground with a loud thud. He found a rifle in that bag. 

The remainder of the search involved looking under a floor vent, 

opening a safe in the room, and going through closed drawers. 

Two more rifles were found below the floor vent. Ammunition for 

unrelated weapons was found in the safe and in a bag in a

 

3 Later, at the suppression hearing, Ms. Coles elaborated on her 

statement. She testified that she had slept in defendant’s 

bedroom a couple of months earlier when her father, for personal 

reasons, had stayed in her home for several weeks. On that 

occasion, defendant had stayed with his mother for those weeks 

to make room for the extra family member. Ms. Coles emphasized

that, although she used the bedroom for sleeping purposes, she 

did not disturb defendant’s belongings other than to watch the

television located in his room. That detail concerning Ms. 

Coles’s use of the room, and other information regarding 

arrangements about defendant’s payment of rent, was not known to 

James at the time of the search. Once James learned that Ms. 

Coles had slept in the room, he did not ask any other questions 

to probe the nature of her authority over the room.
9

dresser drawer. The ammunition found in the safe is not part of 

the suppression motion before us.

C.

On August 13, 2009, a Camden County grand jury indicted 

defendant on three counts of third-degree unlawful possession of 

a weapon, N.J.S.A. 2C:39-5(c)(1); third-degree unlawful 

possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b); fourthdegree unlawful possession of a defaced firearm, N.J.S.A.

2C:39-9(e); fourth-degree unlawful possession of a large 

capacity ammunition magazine, N.J.S.A. 2C:39-3(j); and seconddegree certain persons not to possess weapons, N.J.S.A.

2C:39-7(b). Defendant filed a motion to suppress the evidence 

found in his bedroom. After hearing testimony and argument, the 

motion court denied the application in a written opinion.

The motion court first dispensed with the legitimacy of 

defendant’s detention, finding that the police had reasonable 

suspicion to conduct a Terry stop and patdown search when 

defendant matched the sex and race description, and wore 

clothing fitting the description reported by the victim; gave 

“incongruous answers”; and was “fidgety” and “nervous” when 

describing his whereabouts. The court concluded that 

defendant’s detention was valid.

Next, the court concluded that Ms. Coles had authority to 

consent to a search of defendant’s bedroom. The court found 
10

that she and defendant “share[d] control of the space” because 

she occasionally slept in the room. Although there was a 

padlock on the door, Ms. Coles had a key to that lock and to 

those on the other doors, which had been installed prior to the 

time defendant moved into the home to keep younger children from 

accessing other persons’ rooms. Those facts, along with the 

informal nature of the rental arrangement between defendant and 

Ms. Coles, which was brought out in the hearing but not during 

the exchange between James and Ms. Coles at the time of the 

search, persuaded the court that defendant had no reasonable 

expectation of privacy in the room. With respect to whether 

Sergeant James could have reasonably believed that Ms. Coles had

apparent authority over the bedroom, the court found that James

held a reasonable belief that she could consent to the search

because James had no way to know at the time of the search if 

defendant paid rent; Ms. Coles had told him that she had 

accessed defendant’s room in the recent past to sleep there; Ms. 

Coles consented in writing to the search; and she showed James 

to the bedroom door, which was ajar. 

Turning to the voluntariness of Ms. Coles’s consent, the 

court considered the impact of Sergeant James’s statement, 

testified to by Ms. Coles and not disputed by James, that he did 

not have a search warrant but “could get one.” Noting that it 

was arguably a coercive statement, the court determined that 
11

consent was voluntarily given, relying on its findings that 

James told Ms. Coles that she could refuse consent, that she 

signed a consent form, and that she acknowledged at the 

suppression hearing that she saw no reason why she should not

consent to the search.

Finally, the court dispensed with arguments that the search 

exceeded the permissible scope authorized by Ms. Coles. Those

arguments are not pertinent to our analysis and therefore will 

not be examined in detail.

4

Defendant pleaded guilty to the charge of second-degree 

certain persons not to have weapons, N.J.S.A. 2C:39-7(b), in 

exchange for dismissal of the remaining charges. The court 

sentenced defendant to a five-year prison term with five years 

of parole ineligibility. Defendant also was sentenced to a 

three-year prison term for a violation of probation charge,

which was made to run concurrent with the sentence on the 

certain-persons offense.

D.

 

4 The court found that, although third-party consent does not 

authorize a search inside another person’s private belongings 

unless those items are in plain view, James immediately 

recognized the feel of a shotgun inside the duffle bag in the 

closet when he was searching for the stated objects of his 

search, namely evidence of the robbery. After the initial 

finding of the shotgun, the court explained that James saw a 

rifle and magazine clip in the second unzipped bag that fell to 

the floor when he had moved the first bag. The court found that 

the community-caretaking exception to the warrant requirement 

justified a search of the remainder of defendant’s bedroom.
12

In an unpublished decision dated April 11, 2012, the 

Appellate Division reversed the denial of defendant’s motion to 

suppress. The panel analyzed the motion with a focus on whether 

the third-party consent search was legitimate and determined

that defendant’s “aunt did not have common authority over his 

bedroom, and therefore could not consent to the search.” The 

panel also concluded that “the failure of the police to ask 

defendant for his consent -- especially when defendant was 

nearby and was being held in police custody under circumstances 

that were, at best, questionable -- rendered the ensuing search 

unlawful.” The panel explained that courts assess the 

“reasonableness of the search in the totality of the 

circumstances, and must avoid applying” exceptions to the 

warrant requirement “in a vacuum.” 

According to the panel, Ms. Coles did not have common

actual authority to consent to the search because, even if Ms. 

Coles accessed defendant’s room for “‘limited purposes,’ that 

. . . does not give [her] authority to consent to a search.” 

The panel stated that although Ms. Coles occasionally slept in 

defendant’s bedroom and had a key to it, her familial and 

landlord status did not give her authority to consent to a 

search of defendant’s bedroom. The panel determined that the 

motion court erred in its reliance on State v. Crumb, 307 N.J. 

Super. 204, 243-46 (App. Div. 1997), certif. denied, 153 N.J.
13

215 (1998), which involved a different familial relationship 

between the parties, a different rental arrangement between 

those parties, and a room with only an unhinged door to provide 

privacy. Here, the panel determined that the motion court erred 

in concluding that defendant was not a tenant in his aunt’s 

home, where this almost twenty-year-old nephew paid his aunt

$250 per month in board, which the police could have discovered 

by inquiring. Although defendant was not always required to pay 

rent or risk eviction, the panel was not persuaded that the 

informality of the rental agreement authorized defendant’s 

landlady to consent to a search of his room under State v. 

Coyle, 119 N.J. 194, 217 (1990). 

In addressing the overall unreasonableness of the search, 

the panel noted that the police ignored “the very person with 

the superior right to control access to the room” --

defendant -- who was in police custody six houses away. 

Instead, without explanation, the police decided to obtain 

consent from Ms. Coles. The panel stated that the conduct of 

the police leading up to the search was of “questionable 

validity” because reasonable suspicion to continue to detain 

defendant had likely “evaporated” when the victim was unable to 

identify him as the perpetrator. Citing Georgia v. Randolph, 

547 U.S. 103, 121, 126 S. Ct. 1515, 1527, 164 L. Ed. 2d 208, 

226-27 (2006), the panel concluded that “defendant’s continued 
14

detention” in those questionable circumstances contravened 

federal precedent. Using a totality-of-the-circumstances

assessment, the panel held the search to be unreasonable, 

reversed the suppression order of the trial court and 

defendant’s conviction, and remanded for entry of an order 

suppressing the evidence and further proceedings. 

We granted the State’s petition for certification. State 

v. Coles, 212 N.J. 432 (2012).

II.

A.

The State seeks reversal of the Appellate Division’s 

decision. The State contends that Ms. Coles possessed 

sufficient common authority over defendant’s bedroom to consent 

to a search of the room. The State’s argument in that respect 

is based on Ms. Coles’s status as defendant’s aunt, the fact 

that she had recently slept in the room, and that she had a key 

to the padlock mounted on the door. Further, the State

maintains that, based on the totality of the circumstances, 

Sergeant James’s belief that Ms. Coles possessed common 

authority over the room was reasonable and that the search 

therefore was justified.

The State further argues that defendant’s detention was 

proper and based on reasonable suspicion. Accordingly, it 

maintains that the third-party consent search was legitimate
15

because defendant was not present at the scene and objecting to 

the search. The State relies on Randolph, supra, 547 U.S. at 

121-22, 126 S. Ct. at 1527, 164 L. Ed. 2d at 226-27, as well as 

the more recent decision in Fernandez, supra, 571 U.S. at ___, 

134 S. Ct. at 1133-34, 188 L. Ed. 2d at 34, to support that 

contention. Finally, the State disputes that Ms. Coles’s 

consent was not knowing, voluntary, and intelligent at all 

stages of the search.

B.

Defendant argues that the appellate panel’s decision should 

be affirmed because his aunt had neither actual nor apparent 

authority to consent to a search of his bedroom. He asserts 

that he was a tenant and that he maintained exclusive control 

over his room. 

He also contends that his detention was improper. He 

argues that Sergeant James lacked reasonable suspicion when the 

detention began and that after the victim did not identify him 

there was no probable cause to continue his detention. 

Therefore, the subsequent search of his room was impermissible 

under Randolph because the police knowingly kept defendant

detained in the patrol car to avoid the possibility that he 

would refuse to consent to the search. Finally, defendant

argues that Ms. Coles’s consent to the search was not voluntary

but rather was the result of police coercion.
16

C.

The American Civil Liberties Union of New Jersey (ACLU), 

appearing as amicus curiae, urges this Court to affirm the 

appellate panel’s decision. The ACLU submits that a landlordtenant relationship existed in this case; that Ms. Coles’s 

limited access to the room did not alter the basic assumption 

that defendant maintained a reasonable expectation of privacy 

when he occupied his room; and that Ms. Coles’s familial role as

defendant’s aunt does not and should not alter that assumption. 

Accordingly, Ms. Coles did not possess common authority to 

consent to a search of defendant’s room. Further, the ACLU 

contends that police should not be permitted to utilize 

selective questioning techniques to avoid obtaining information 

that would undercut the appearance of common authority. 

Finally, the ACLU argues that, even if Ms. Coles had the 

authority to consent to the search, the scope of that authority 

did not extend to secured containers within the room.

III.

A.

The New Jersey and Federal Constitutions guarantee the 

rights of persons to be free from unreasonable searches and 

seizures. N.J. Const. art. I, ¶ 7; U.S. Const. amend. IV. The 

Fourth Amendment and the New Jersey Constitution assure the 

“highest degree of protection to privacy interests within the 
17

home.” State v. Johnson, 193 N.J. 528, 532 (2008). Both 

protect against unreasonable searches and regard the warrantless 

entry into a person’s home as “presumptively unreasonable.” Id.

at 552 (internal quotation marks omitted); Payton v. New York, 

445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651

(1980). 

To sustain the validity of a warrantless search, the State 

must demonstrate that the search fits within an accepted 

exception to the warrant requirement, one of which is the longrecognized consent-to-search exception. See Schneckloth v. 

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

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

(2006). 

B.

In a series of decisions dating back forty years, the 

United States Supreme Court has addressed the right of police 

officers to conduct warrantless searches of homes based on 

consent given by a third party. See United States v. Matlock, 

415 U.S. 164, 171-72, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 

249-50 (1974) (affirming warrantless entry and search by police 

officers who obtained consent of person possessing common 

authority over premises searched); Illinois v. Rodriguez, 497 

U.S. 177, 185-89, 110 S. Ct. 2793, 2800-02, 111 L. Ed. 2d 148, 

159-61 (1990) (affirming search by police based on consent 
18

granted by person whom police reasonably believed possessed 

common authority over premises to be searched). In consentbased searches, the State bears the burden of proving that 

proper consent was given freely and voluntarily. Schneckloth, 

supra, 412 U.S. at 223, 93 S. Ct. at 2045-46, 36 L. Ed. 2d at 

860-61; State v. Johnson, 68 N.J. 349, 354 (1975).

The United States Supreme Court has relied on the test of 

objective reasonableness in third-party consent searches. It 

was the underpinning of the apparent authority holding in 

Rodriguez, supra. See 497 U.S. at 185-86, 110 S. Ct. at 2799-

2800, 111 L. Ed. 2d at 159-60. There, the actions of the police

were overtly tested by that standard when consent was granted by 

a third party in the absence of the defendant against whom the 

evidence seized would be used in a criminal trial. Ibid.

Moreover, the United States Supreme Court has held that, 

when faced with the circumstances of a present and objecting cooccupant, it is objectively unreasonable for police to rely on 

the consenting occupant. In Randolph, supra, the Court’s

majority opinion, written by Justice Souter, held that the 

physically present co-occupant’s stated refusal to permit entry 

prevails. 547 U.S. at 122-23, 126 S. Ct. at 1528, 164 L. Ed. 2d 

at 227.

In Randolph, a wife had returned to the home she shared 

with her husband, after she had been staying with her family for 
19

several months. Id. at 106, 126 S. Ct. at 1519, 164 L. Ed. 2d 

at 217. She called the police to the home when her husband took 

their child away after a dispute erupted between the couple. 

Id. at 107, 126 S. Ct. at 1519, 164 L. Ed. 2d at 217. When the 

police arrived, she told them that her husband was a drug user 

and volunteered that there was evidence of that in the house. 

Ibid. The husband was present during this exchange and refused 

to grant the officers permission to search the home. Ibid. 

After the police searched the home pursuant to the wife’s 

consent, the defendant moved to suppress the evidence seized 

during the search. The Supreme Court of Georgia sustained a 

reversal of an initial order of suppression and the United 

States Supreme Court affirmed the suppression of the seized 

evidence. The Supreme Court majority held that a warrantless 

search of shared dwelling space over the clear refusal of 

consent by a physically present resident is not reasonable, and 

required suppression of evidence that was seized on the basis of 

consent provided by another resident. Id. at 120, 126 S. Ct. at 

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

The Randolph majority also addressed two “loose ends” from 

its prior decisions in Matlock and Rodriguez. Id. at 120-21, 

126 S. Ct. at 1527, 164 L. Ed. 2d at 226. First, the Court 

explained that Matlock’s recognition of a co-tenant’s right to 

admit the police arises from the role that customary social 
20

usage bears in assessing the reasonableness of a search under 

the Fourth Amendment. Ibid. The Randolph majority stated that 

the right to admit arises not from “property right” 

considerations but rather from customary social understanding of 

whether there is a right to admit “powerful enough to prevail 

over the co-tenant’s objection.” Ibid. Second, the Court’s 

majority opinion noted that fine factual nuances distinguished

Matlock and Rodriguez from Randolph and acknowledged the “fine 

line” it was drawing: 

If a potential defendant with self-interest 

in objecting is in fact at the door and 

objects, the co-tenant’s permission does not 

suffice for a reasonable search, whereas the 

potential objector, nearby but not invited 

to take part in the threshold colloquy, 

loses out.

This is the line we draw, and we think 

the formalism is justified. So long as 

there is no evidence that the police have 

removed the potentially objecting tenant 

from the entrance for the sake of avoiding a 

possible objection [the search may be deemed 

objectively reasonable].

[Id. at 121, 126 S. Ct. at 1527, 164 L. Ed.

2d at 226-27 (emphasis added).]

While emphasizing a disinclination to turn every co-tenant 

consent case into an examination into police efforts to locate a 

potential objector, the Court cautioned that police cannot make 

a defendant unavailable for the sake of avoiding a possible 

objection. See id. at 121-22, 126 S. Ct. at 1527-28, 164 L. Ed.
21

2d at 226-27. That noted exception was the subject of attention 

in the Court’s most recent opinion in this line of cases. 

In Fernandez, supra, the Court reaffirmed the “touchstone”

of objective reasonableness. 571 U.S. at ___, 134 S. Ct. at 

1132, 188 L. Ed. 2d at 32. Fernandez also clarified that an 

occupant who is absent due to a lawful detention or arrest 

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

other reason, ratifying that Randolph’s holding otherwise 

requires the presence of the objecting occupant. Id. at ___, 

134 S. Ct. at 1134, 188 L. Ed. at 35. We take from Fernandez

two things: (1) that the objective-reasonableness test 

prevails; and (2) that police responsibility for the unlawful 

detention or removal of a tenant who was prevented from being 

present at the scene to voice his or her objection to the search 

is not equivalent to other neutral circumstances causing the 

defendant’s absence.

C.

Our state law on consent searches similarly has recognized 

a third party’s ability to consent to a search when the 

consenter has common authority for most purposes over the 

searched space. See State v. Suazo, 133 N.J. 315, 319-20 (1993)

(noting Matlock and Rodriguez upholding, under federal and state 

constitutions, third-party consent rendering warrantless search 

of premises objectively reasonable). As we have explained, 
22

police officers need not ultimately be factually correct about a 

party’s ability to consent to a search. Id. at 320. The 

question is “whether the officer’s belief that the third party 

had the authority to consent was objectively reasonable in view 

of the facts and circumstances known at the time of the search.” 

Ibid.; see also Crumb, supra, 307 N.J. Super. at 243 (upholding, 

as objectively reasonable, officer’s warrantless search of adult 

son’s bedroom in mother’s trailer home based on mother’s consent 

where bedroom lacked hinged door and thus provided no 

expectation of privacy).

The appellate panel in Crumb, supra, noted that appellate 

decisions from our state generally have aligned with “the 

overwhelming majority of [jurisdictions] in holding that a 

parent has the right to consent to the search of the property of 

his or her son or daughter.” 307 N.J. Super. at 243. In

assessing the objective reasonableness in a circumstance 

involving an adult child living with parents, the Crumb panel 

discussed factors to consider when determining whether a child 

has exclusive possession of his or her room, such as whether the 

child pays rent;5 whether the parent has access to the child’s 

 

5 In a parent-child or other familial relationship, depending on 

the age of the child and the relationship, the typical rules 

governing a landlord’s inability to consent to the search of a 

tenant’s rented premises do not translate with crystalline 

clarity. See State v. Scrotsky, 39 N.J. 410, 415 (1963). Even 

the typical landlord, who may have a right to access the 
23

room for cleaning or other such general access purposes; and 

whether the child has the right to lock the door to deny access. 

Id. at 245. 

Ultimately, under our state law, the question remains one 

of objective reasonableness based on an assessment of the 

totality of the circumstances.

IV.

We thus turn to assess the objective reasonableness of the 

circumstances leading to the search of defendant’s bedroom. 

That assessment necessarily begins with review of the seizure of 

defendant’s person.

A.

The suppression court determined that Sergeant James had 

reasonable suspicion to stop and briefly detain defendant, 

explaining its reasoning as follows: 

The determination of the legality of 

the detention that followed the questioning 

of Defendant requires a review of the 

totality of the circumstances. Here, the 

totality of the circumstances includes: 1) 

the fact that Defendant was wearing 

practically identical clothing to that of 

the robbery suspect (as confirmed by the 

robbery victim); 2) the incongruous answers 

Defendant gave regarding where he had been 

and where he was going (and, more precisely, 

Sgt. James’s knowledge, based on his 

familiarity with the area, that the answers 

 

tenant’s room for specific “limited purposes,” does not by 

virtue of such authority have the ability to consent to a 

search. Coyle, supra, 119 N.J. at 216.
24

were factually suspect); and 3) Defendant’s 

“fidgety” and “nervous” conduct as he spoke 

with Sgt. James, an 18-year Camden police 

veteran. 

 

The Appellate Division had no quarrel with the initial stop 

by James, who was investigating a reported armed robbery in the 

neighborhood in which he encountered defendant, but the panel’s 

review of the circumstances of the continued investigatory 

detention of defendant after the victim was unable to identify 

defendant as her assailant led it to conclude that the continued 

detention may have been unreasonable. We note at the outset 

that the Appellate Division’s review was itself conducted “with 

substantial deference to the trial court’s factual findings, 

which [it] ‘must uphold . . . so long as those findings are 

supported by sufficient credible evidence in the record.’” 

State v. Hinton, 216 N.J. 211, 228 (2013) (omission in original) 

(quoting State v. Handy, 206 N.J. 39, 44 (2011)). However, a 

reviewing court owes no deference to the trial court’s 

determinations as to matters of law, and those determinations 

are reviewed de novo. State v. Buckley, 216 N.J. 249, 260-61 

(2013); State v. Schubert, 212 N.J. 295, 304 (2012).

Those standards also govern our review of the legality of 

defendant’s detention.

B.
25

A warrantless seizure of a person is “‘presumptively 

invalid as contrary to the United States and the New Jersey 

Constitutions’” unless that warrantless seizure “‘falls within 

one of the few well-delineated exceptions to the warrant 

requirement.’” State v. Mann, 203 N.J. 328, 337-38 (2010)

(quoting State v. Pineiro, 181 N.J. 13, 19 (2004), and State v. 

Elders, 192 N.J. 224, 246 (2007), respectively). An 

investigatory stop of a person -- sometimes referred to as a 

Terry stop -- is one such exception. State v. Rodriguez, 172 

N.J. 117, 126-27 (2002).

It is undisputed that a police officer may conduct an 

investigatory stop of a person if that officer has 

“particularized suspicion based upon an objective observation 

that the person stopped has been or is about to engage in 

criminal wrongdoing.” State v. Davis, 104 N.J. 490, 504 (1986) 

(internal quotation marks omitted); accord Mann, supra, 203 N.J.

at 338. The 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. 

See State v. Shaw, 213 N.J. 398, 411 (2012); Rodriguez, supra, 

172 N.J. at 127. 

There is a recognized constitutional balance to be struck 

between individual freedom from police interference and the 

legitimate and reasonable needs of law enforcement. See Davis, 
26

supra, 104 N.J. at 502 (noting that “Article I, paragraph 7 of 

the New Jersey Constitution ‘does not speak in absolute terms 

but strikes a balance between the interests of the individual in 

being free of police interference and the interests of society 

in effective law enforcement’” (quoting State v. Dilley, 49 N.J.

460, 468 (1967))); see also State v. Arthur, 149 N.J. 1, 7

(1997) (noting police conduct may be “assessed by ‘balancing the 

need to search (or seize) against the invasion which the search

(or seizure) entails’” (quoting Terry, supra, 392 U.S. at 21, 88 

S. Ct. at 1879, 20 L. Ed. 2d at 905)). That balance is critical 

because both the Fourth Amendment to the United States 

Constitution and Article I, Paragraph 7 of the New Jersey 

Constitution guarantee to New Jersey’s citizens “[t]he right to 

walk freely on the streets of a city without fear of an 

arbitrary arrest.” State v. Gibson, ___ N.J. ___, ___ (2014)

(slip op. at 8). When evaluating the reasonableness of a 

detention, the “totality of circumstances surrounding the 

police-citizen encounter” must be considered. State v. Privott, 

203 N.J. 16, 25 (2010) (quoting Davis, supra, 104 N.J. at 504). 

Case law has recognized law enforcement’s need to respond 

to the fluidity of a street encounter where there is a 

reasonable suspicion of wrongdoing; accordingly, the duration of 

the investigative stop may be extended for a reasonable but 

limited period for investigative purposes. See, e.g., State v. 
27

Sloane, 193 N.J. 423, 426 (2008) (upholding officer’s decision 

to search NCIC database during traffic stop because that 

decision “did not unreasonably prolong the stop”); State v. 

Herrera, 187 N.J. 493, 504 (2006) (upholding investigatory 

stop). The reasonableness of a continued detention is 

determined through application of a two-pronged inquiry. First, 

the detention must have been reasonable at its inception. See

State v. Dickey, 152 N.J. 468, 476 (1998); Davis, supra, 104 

N.J. at 504, 507. Second, the scope of the continued detention 

must be reasonably related to the justification for the initial 

interference. Dickey, supra, 152 N.J. at 476. Thus, the 

detention must be reasonable both at its inception and 

throughout its entire execution. See ibid.; United States v. 

Sharpe, 470 U.S. 675, 682-83, 105 S. Ct. 1568, 1573-74, 84 L. 

Ed. 2d 605, 613 (1985). Further, the officer must use the least 

intrusive means necessary to effectuate the purpose of the 

investigative detention, Davis, supra, 104 N.J. at 504, and the 

detention must “last no longer than is necessary to effectuate 

the purpose of the stop,” Shaw, supra, 213 N.J. at 411 (quoting 

Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 

L. Ed. 2d 229, 238 (1983)).

Our Court has recognized that “[t]here is [no] litmus-paper 

test for . . . determining when a seizure exceeds the bounds of 

an investigative stop”; instead, when the duration of the 
28

detention is at issue, the proper question is “whether the 

police diligently pursued a means of investigation that was 

likely to confirm or dispel their suspicions quickly, during 

which time it was necessary to detain the defendant.” Dickey, 

supra, 152 N.J. at 476-77 (second alteration in original)

(internal quotation marks omitted); see also State v. Baum, 199

N.J. 407, 425 (2009) (stating continued detention beyond time 

needed to effectuate purpose of investigative detention 

constituted de facto arrest).

C.

In the matter at hand, we agree with the trial court and 

the Appellate Division that Sergeant James’s initial stop and 

detention of defendant was reasonable. We have no quarrel with 

James’s patdown of defendant or his detention of defendant to 

enable a showup identification to be conducted. However, once 

the victim of the reported armed robbery arrived for a showup

and was unable to identify defendant as the perpetrator, the 

calculus changed. 

In assessing the reasonableness of a detention’s duration, 

we have upheld a police officer’s short-term detention of a 

suspect for the purpose of conducting a showup identification. 

See, e.g., State v. Henderson, 208 N.J. 208, 259 (2011) (noting 

“[s]howups often occur at the scene of a crime soon after its 

commission”); State v. Romero, 191 N.J. 59, 78 (2007) (upholding 
29

showup identification conducted during investigative detention). 

Such a brief investigative detention serves the beneficial 

purpose of quickly exonerating innocent suspects. See Romero, 

supra, 191 N.J. at 78; Herrera, supra, 187 N.J. at 504

(acknowledging showup identifications may “tend to avoid or 

minimize inconvenience and embarrassment to the innocent”). In 

that respect, it is a trade-off. By detaining an individual for 

whom probable cause to arrest is lacking in order that a showup

might take place, the person exonerated by the showup is able to 

be on his or her way without the delay and inconvenience of 

being brought to headquarters and being required to submit to a 

line-up. See Herrera, supra, 187 N.J. at 504 (discussing 

utility of showup identifications). In other words, the 

exonerated person is not to be subjected to further detention. 

A continued detention must conform to the constitutional 

requirement of the reasonableness standard that governs all 

investigative stops. If an officer’s conduct is unnecessarily 

intrusive or if the suspect is detained for a period beyond what 

can be considered reasonable, a de facto arrest occurs. See

Dickey, supra, 152 N.J. at 478. Once a de facto arrest occurs, 

the particularized suspicion that originally supported the 

investigative detention is no longer sufficient and the arrest 

must be supported by probable cause. See Gibson, supra, ___

N.J. at ___ (slip op. at 8) (“A person cannot be arrested unless 
30

there is probable cause to believe that he has committed or is 

committing an offense.”). An arrest unsupported by probable 

cause constitutes an “unreasonable seizure in violation of both 

the Federal and State Constitutions.” Ibid.

Here, defendant was prevented from going on his way after 

the showup failed to develop probable cause to arrest him.6 

James continued to detain defendant because defendant did not 

have any identification documents on him to prove that he was 

Byseem Coles and that he lived where he said that he did. While 

individuals are not required to carry identifying documents on 

them at all times in our free country, we accept that law 

enforcement acting under reasonable suspicion of an individual 

can expend a brief but reasonable period of time to confirm an 

individual’s identity in circumstances as presented here. Our 

case law has recognized a reasonable and brief interlude of time 

to permit such identifications to take place. See, e.g., Handy, 

supra, 206 N.J. at 47 (finding no quarrel with officer’s 

extension of investigatory stop of suspect to ascertain 

identity); Sloane, supra, 193 N.J. at 437 (finding officer’s 

running of NCIC check and driver’s license check reasonable 

during traffic stop); State v. Nishina, 175 N.J. 502, 513 (2003) 

 

6 At oral argument the State acknowledged that it lacked probable 

cause to arrest defendant after the showup did not result in 

defendant’s identification as the perpetrator of the armed 

robbery under investigation.
31

(holding officer “was justified in continuing to question 

defendant,” including asking for identification). 

Therefore, we allow that Sergeant James had the flexibility 

to seek confirmation of defendant’s identity, as defendant had 

suggested to James, from defendant’s relatives who were 

reportedly at his nearby home. We further do not propose to 

hamstring the police officers’ on-the-scene determination to 

keep defendant detained in the patrol car while two officers 

approached the door of the home to which defendant directed 

them. Where we do part ways with the reasonableness of the 

police officers’ conduct is with what transpired at the doorway.

At the threshold to the home, in an exchange with 

defendant’s aunt, the officers dropped their suspicion of 

whether defendant was who he said he was -- Byseem Coles. Their 

actions demonstrated that they had confirmed his identity and 

that he lived there because they commenced a concerted course of 

action to secure defendant’s aunt’s permission to let them 

search his bedroom. However, in accepting those beliefs as to 

defendant’s identity and residence, the officers no longer had 

sufficient legal reason to continue his detention. At that 

point, defendant’s continued police detention was no longer 

lawful.

The upshot of that alteration in the legality of the police 

detention of defendant is that the State cannot claim that James 
32

secured a valid consent to search defendant’s room from his 

aunt. The validity of this consent-premised search turns on the 

objective reasonableness of the police conduct based on the 

totality of the circumstances. 

As the United States Supreme Court’s Fernandez opinion 

makes clear, valid third-party consent is subject to the 

exception that the third party’s consent cannot be manufactured 

through the unlawful detention of the defendant. That is what 

occurred here. Defendant was being unlawfully detained the 

moment the last vestige of a valid, continued investigatory 

detention had been resolved through confirmation of his identity 

and residence. At that point, he was entitled to be released. 

But, he was not. Rather, his detention continued while an 

officer questioned his aunt and obtained her consent rather than 

defendant’s to the search of his bedroom. The objective 

reasonableness of this asserted consent-based search ends with 

our conclusion that defendant was being unlawfully detained by 

police, a few houses away from his home, as soon as the officers 

at the doorway of his home transferred their focus from securing 

confirmation of defendant’s identity to securing unilateral 

consent from defendant’s aunt for the search of defendant’s 

room.

We need not address whether defendant’s aunt’s authority, 

standing alone, was sufficient to grant the officers access to 
33

the private bedroom of this young adult male living, as so many 

people do, in an extended-family living arrangement. We note 

only that, in such settings, personal privacy rights are not 

easily assessed through any uniform set of questions. We 

decline to parse the thoroughness of the officer’s questioning 

of the aunt, and his judgment based on her on-the-scene answers 

because, in the totality of these circumstances, this asserted 

consent-based search went off the rails of objective 

reasonableness once the officer began to secure consent from 

her. The officer’s action detaining defendant in a patrol car 

when probable cause to arrest was lacking effectively prevented 

any objection from defendant. It also prevented him from 

disputing his aunt’s statements in response to police inquiries 

about control over the room.

We conclude that the objective reasonableness of this 

asserted consent-based search founders on the unlawfulness of 

the police detention of defendant in the totality of these 

circumstances. See Suazo, supra, 133 N.J. at 320 (adopting test 

of objective reasonableness based on totality of circumstances 

for asserted third-party consent searches of homes). Under the 

totality of these circumstances, we hold that the warrantless 

search of defendant’s bedroom was not objectively reasonable,

and we base our holding on the protection provided by Article I, 

Paragraph 7 of the New Jersey Constitution against unreasonable 
34

searches of one’s home and personal living space. See Evers,

supra, 175 N.J. at 384 (granting privacy interests in home “the 

highest degree of respect and protection in the framework of our 

constitutional system”). 

Although our decision is based on state constitutional law, 

our holding is bolstered by Fourth Amendment principles. 

Federal case law also supports the conclusion that a warrantless 

consent-based search is objectively unreasonable and 

unconstitutional when premised on a defendant’s illegal 

detention. See Fernandez, supra, 571 U.S. at ___, 134 S. Ct. at 

1134, 188 L. Ed. 2d at 35.

V.

The judgment of the Appellate Division is affirmed as 

modified by this opinion.

CHIEF JUSTICE RABNER and JUSTICE ALBIN, and JUDGES 

RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE 

LaVECCHIA’s opinion. JUSTICE PATTERSON filed a separate, 

dissenting opinion.
1

SUPREME COURT OF NEW JERSEY

A-15 September Term 2012

070653

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BYSEEM T. COLES,

Defendant-Respondent.

JUSTICE PATTERSON, dissenting.

In its recent decision in Fernandez v. California, 571 U.S.

___, 134 S. Ct. 1126, 188 L. Ed. 2d 25 (2014), the United States 

Supreme Court confirmed that an occupant’s consent to a police 

search of a residence is effective unless a co-tenant who is 

present at the scene objects to the search. The Supreme Court 

reaffirmed its holding in Georgia v. Randolph, 547 U.S. 103, 

106, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006), and settled a 

debate about the reach of that decision. Following Fernandez,

supra, federal search and seizure law regarding this issue is 

clear: unless there is an objecting co-tenant present at the 

scene, or evidence that police removed a co-tenant from the 

residence to avoid a potential objection, the consent of a 

person with appropriate authority authorizes the warrantless 
2

search of a residence. 571 U.S. at ___, 134 S. Ct. at 1134-35, 

188 L. Ed. 2d at 35. 

In this case, there was no objecting co-tenant present at 

the scene. The police did not remove defendant from his home to 

forestall a potential objection; defendant was detained 

elsewhere and was not at his home when the search was consented 

to and conducted. Accordingly, this case does not present a 

setting akin to Randolph, the narrow parameters of which were 

underscored by the Supreme Court in Fernandez. With the scope 

of Randolph having been clarified by Fernandez, it is clear that 

this case is not within the limitations of Randolph and that the

police search of defendant’s home simply did not run afoul of 

the Fourth Amendment. 

Nonetheless, the majority holds that by virtue of an 

unlawful detention of defendant a short distance away from the 

residence at issue, the consent of defendant’s aunt, Thelma 

Coles, did not authorize the search of her home, and that 

defendant’s motion to suppress should have been granted. In so 

doing, the majority does not expressly state that it diverges

from the federal constitutional principles recently articulated 

in Fernandez. Although the majority premises its holding on 

Article I, Paragraph 7 of the New Jersey Constitution, it finds 

support for its decision in the Supreme Court’s pronouncement in 
3

Fernandez, which it interprets to hold that a consent-based 

search is unconstitutional “when premised on defendant’s illegal 

detention,” no matter where that detention occurs. Ante at ___ 

(slip op. at 4). 

In my view, the majority’s holding simply cannot be squared 

with federal precedent. In the wake of Fernandez –- in which 

the Supreme Court adamantly limited Randolph to cases involving 

a co-tenant who is first present at, and then removed from, the 

scene -- the majority nonetheless construes Randolph to govern a 

setting devoid of that dispositive factor. Because I do not

concur with the majority’s interpretation of federal law, or its

substantial expansion of New Jersey search and seizure 

protections beyond Fourth Amendment parameters, I respectfully 

dissent.

I.

The United States Supreme Court’s decision in Fernandez is 

the latest in a series of opinions addressing the impact of 

consent given by a person with authority over the premises to 

the search of a shared home. As the majority notes, the first 

such opinion was United States v. Matlock, 415 U.S. 164, 94 S.

Ct. 988, 39 L. Ed. 2d 242 (1974). There, the Supreme Court 

upheld a warrantless, consent-based search of a defendant’s home 

based on the voluntary consent of a woman with whom the 
4

defendant lived after the defendant was arrested in his front 

yard and placed in a squad car. Id. at 166, 169, 94 S. Ct. at

991, 992, 39 L. Ed. 2d at 247, 248. The Supreme Court held that 

“the consent of one who possesses common authority over premises 

or effects is valid as against the absent, nonconsenting person 

with whom that authority is shared.” Id. at 170, 94 S. Ct. at 

993, 39 L. Ed. 2d at 249. The Supreme Court later applied that 

principle set forth in Matlock to permit a search “based upon 

the consent of a third party whom the police, at the time of the 

entry, reasonably believe[d] . . . possess[ed] common authority 

over the premises, but who in fact d[id] not do so.” Illinois 

v. Rodriguez, 497 U.S. 177, 179, 186, 110 S. Ct. 2793, 2796,

2800, 111 L. Ed. 2d 148, 155, 160 (1990).

The sole exception to the rule of Matlock was defined by 

the Supreme Court in Randolph. There, the defendant was present 

at his home shortly after police arrived in response to a 

complaint of a domestic dispute. Randolph, supra, 547 U.S. at 

107, 126 S. Ct. at 1519, 164 L. Ed. 2d at 217. Although the 

defendant’s wife advised police that her husband used drugs and 

“volunteered that there were items of drug evidence in the 

house,” the defendant “unequivocally refused” to consent to a 

search of his home. Ibid. (internal quotation marks omitted). 

Police then turned to the defendant’s wife for consent, “which 
5

she readily gave.” Ibid. The Supreme Court held that the 

evidence generated by the search should have been suppressed, 

stating that in the circumstances presented, “a physically 

present co-occupant’s stated refusal to permit entry prevails, 

rendering the warrantless search unreasonable and invalid as to 

him.” Id. at 106, 126 S. Ct. at 1518-19, 164 L. Ed. 2d at 217. 

In a passage quoted by the majority here, the Supreme Court 

distinguished between a potential objector with self-interest in 

objecting who “is in fact at the door” objecting, and a 

potential objector who is “nearby but not invited to take part 

in the threshold colloquy.” Id. at 121, 126 S. Ct. at 1527, 164 

L. Ed. 2d at 226. The former, ruled the Supreme Court, wins the 

argument; the latter “loses out.” Ibid.

If the Supreme Court in Randolph left some uncertainty as 

to whether its holding would afford Fourth Amendment protections

to a potential objector who is not “in fact at the door” because 

he is unlawfully detained elsewhere, there is no longer any such 

uncertainty after Fernandez. Although the majority cites 

Fernandez for the general proposition that the objective 

reasonableness test governs this Fourth Amendment analysis and 

that police control over the whereabouts of an absent tenant is 

distinct from neutral causes of that absence, the Supreme 
6

Court’s holding actually stands for much more. Indeed, it 

directly addresses the issue presented in this case. 

Fernandez, supra, arose in the context of a police 

investigation into an alleged robbery. 571 U.S. at ___, 134 S. 

Ct. at 1130, 188 L. Ed. 2d at 30. When officers arrived at the 

scene, they observed a man who was later identified as the 

defendant run through an alley and into an apartment building. 

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

thereafter, the officers “heard sounds of screaming and fighting 

coming from that building.” Ibid. The officers went to the 

apartment door, where they were met by a crying and apparently 

battered woman. Ibid. They asked the woman to step away from 

the door so that they could conduct a protective sweep. Ibid. 

Prior to entering, however, the officers immediately encountered 

the “[a]pparently agitated” defendant, who vehemently objected 

to their entry. Ibid. Suspecting that the defendant had 

assaulted the woman, the officers removed the defendant from the 

apartment, arrested him, and returned an hour later to search 

the apartment with the woman’s consent. Ibid.

The defendant in Fernandez argued that his case fit within 

the parameters of Randolph, contending that “his absence should 

not [have] matter[ed] since he was absent only because the 

police had taken him away.” Id. at ___, 134 S. Ct. at 1134, 188 
7

L. Ed. 2d at 35. He also contended that “it was sufficient that 

he objected to the search while he was still present,” asserting 

that his objection “should remain in effect until the objecting 

party no longer wishes to keep the police out of his home.” 

Ibid. (internal quotation marks omitted). Rejecting both 

arguments, the Supreme Court made clear that the touchstone of 

Randolph was the physical presence of the objecting occupant at 

the premises when the police sought consent for, and conducted, 

the search. Id. at ___, 134 S. Ct. at 1134-35, 188 L. Ed. 2d at

35. Writing for the majority, Justice Alito confirmed that an 

authorized occupant’s consent to search is vitiated only by the 

objection of a co-tenant present at the scene, or by the police 

removal of a co-tenant who was initially at home when the police 

arrived, but was removed from the premises in an apparent effort 

to forestall an objection. Ibid. The Court noted:

Our opinion in Randolph took great pains to 

emphasize that its holding was limited to 

situations in which the objecting occupant 

is physically present. We therefore refuse 

to extend Randolph to the very different 

situation in this case, where consent was 

provided by an abused woman well after her 

male partner had been removed from the 

apartment they shared.

[Id. at ___, 134 S. Ct. at 1130, 188 L. Ed.

2d at 30.]

Citing a litany of references in Randolph to the physical 

presence of the objecting defendant, the Supreme Court 
8

emphasized in Fernandez that its “opinion [in Randolph] went to 

great lengths to make clear that its holding was limited to 

situations in which the objecting occupant is present. Again 

and again, the opinion of the Court stressed this controlling 

factor.” Id. at ___, 134 S. Ct. at 1133-34, 188 L. Ed. 2d at 

34. 

Accordingly, the Supreme Court held that “[t]he Randolph

holding unequivocally requires the presence of the objecting 

occupant in every situation other than the one mentioned in the 

dictum discussed above.” Id. at ___, 134 S. Ct. at 1134-35, 188 

L. Ed. 2d at 35. Importantly, the Supreme Court defined the 

Randolph dictum as constrained to the precise situation that it 

had addressed in that case. It found that consent by one 

occupant is sufficient as long as there is no “evidence that the 

police have removed the potentially objecting tenant from the 

entrance for the sake of avoiding a possible objection.” Id. at 

___, 134 S. Ct. at 1134, 188 L. Ed. 2d at 35 (quoting Randolph, 

supra, 547 U.S. at 121, 126 S. Ct. at 1527, 164 L. Ed. 2d at 

226-27). Thus, the United States Supreme Court drew a bright 

line. It distinguished a co-tenant present at the scene -- who

either directly asserts an objection to a police search or is 

initially present and then removed from his home by police to 

avoid a confrontation -- from all other objecting occupants of 
9

homes searched by virtue of a co-tenant’s consent. Id. at ___, 

134 S. Ct. at 1134-35, 188 L. Ed. 2d at 35.

In Fernandez, the Supreme Court further illuminated the 

distinction between present and absent co-tenants by commenting 

on the functional impact of the rule urged by the defendant in 

that case. Id. at ___, 134 S. Ct. at 1135-36, 188 L. Ed. 2d at 

36. Dismissing the defendant’s contention that the prior 

objection of an absent occupant should remain in effect for a 

“reasonable” time, the Supreme Court noted the risk of 

miscommunication, confusion and uncertainty that would arise if 

an absent occupant’s objections were held to negate a cotenant’s valid consent. Id. at ___, 134 S. Ct. at 1135-36, 188 

L. Ed. 2d at 36-37. It held that “[i]f Randolph is taken at its 

word –- that it applies only when the objector is standing in 

the door saying ‘stay out’ when officers propose to make a 

consent search –- all of these problems disappear.” Id. at ___, 

134 S. Ct. at 1136, 188 L. Ed. 2d at 37. The Supreme Court thus 

construed its prior holding in Randolph as unmistakably

requiring either the objector’s personal presence at his or her

home at the time of his or her objection, or his or her removal 

from the residence during an encounter with police, before the 

officers sought the co-tenant’s consent, as in Randolph. The 

United States Supreme Court chose a stark and simple test, 
10

identifying as the “controlling factor” for purposes of the 

Fourth Amendment “situations in which the objecting occupant is 

present” at the home. Id. at ___, 134 S. Ct. at 1133, 188 L. 

Ed. 2d at 34.

In my view, this case clearly falls outside of the narrow 

category of situations defined by the Supreme Court in Randolph

and Fernandez. Here, the potentially objecting occupant was not 

present at the home when the police arrived, or at any time

during the search. Defendant was detained away from his 

residence and it was only after his detention that he provided 

the police with the name and address of his aunt. He was absent 

during the police communications with his aunt that led to her 

consent to the search of the residence. The Fernandez rule -–

which requires an objector to be present on the scene in order 

for the valid consent of a co-tenant to be nullified -– is 

simply not satisfied on these facts.

In short, following Fernandez, I cannot reconcile the 

majority’s holding with the United States Supreme Court’s 

jurisprudence on this issue. To the extent that the majority 

concludes that its decision is supported by federal search and 

seizure jurisprudence, I respectfully disagree.

II.
11

Until this decision, this Court has interpreted the 

protection afforded by Article I, Paragraph 7 of the New Jersey 

Constitution with respect to the issue before the Court to be 

coextensive with the reach of the Fourth Amendment. This Court 

and the Appellate Division have repeatedly adopted and applied 

the principles of Matlock, supra, 415 U.S. 164, 94 S. Ct. 988, 

39 L. Ed. 2d 242 and Rodriguez, supra, 497 U.S. 177, 110 S. Ct.

2793, 111 L. Ed. 2d 148 in a variety of settings. See, e.g.,

State v. Maristany, 133 N.J. 299, 305 (1993) (stating, in 

reliance on Matlock and Rodriguez, that “[c]onsent may be 

obtained . . . from a third party who possesses common authority 

over the property, or from a third party whom the police 

reasonably believe has authority to consent”) (internal 

citations omitted); State v. Suazo, 133 N.J. 315, 320-21 (1993) 

(same); State v. Coyle, 119 N.J. 194, 215 (1990) (stating, in 

reliance on Matlock, that third party with common authority over 

residence can consent to search); State v. Crumb, 307 N.J. 

Super. 204, 243 (App. Div. 1997) (same), certif. denied, 153 

N.J. 215 (1998). 

Indeed, in our unanimous decision on a residential consent 

search in State v. Lamb, ___ N.J. ___ (2014), issued today, we 

interpret our jurisprudence to be guided by and consistent with 

Randolph and Fernandez. Lamb arose from a setting different 
12

from that of this case. There, an initially objecting co-tenant

was present at the scene, and then left the house, never 

renewing his objection. Id. at ___ (slip op. at 2). It raises, 

however, the same general issue as this case: the 

constitutionality of a search conducted with the consent of one 

occupant in light of the potential objection of another occupant 

who shares authority over the premises. Id. at ___ (slip op. at 

9-10). Relying on the United States Supreme Court’s decisions 

in Fernandez and Randolph, the Court in Lamb rejected the 

defendant’s argument that his stepfather’s objection to a search 

consented to by his mother required suppression. Id. at ___ 

(slip op. at 23-25). The Court applied Fernandez to reject the 

defendant’s expansive interpretation of Randolph. Id. at ___ 

(slip op. at 25).

Thus, in my view, the Court has properly embraced and 

applied the United States Supreme Court’s analysis of this issue

in cases other than this one, up to and including today’s 

decision in Lamb. As this Court has noted, “we proceed 

cautiously before declaring rights under our state Constitution 

that differ significantly from those enumerated by the United 

States Supreme Court in its interpretation of the federal 

Constitution.” Right to Choose v. Byrne, 91 N.J. 287, 301

(1982) (citing State v. Hunt, 91 N.J. 338, 344-45 (1982)). That 
13

“caution emanates, in part, from our recognition of the general 

advisability in a federal system of uniform interpretation of 

identical constitutional provisions.” Ibid. In the search and 

seizure setting, “enforcement of criminal laws in federal and 

state courts, sometimes involving the identical episodes, 

encourages application of uniform rules.” Hunt, supra, 91 N.J.

at 345. 

When it has decided to afford more expansive rights under 

the New Jersey Constitution than exist in federal law in a 

search and seizure case, this Court has identified its reasons

for concluding that the decisions of the United States Supreme 

Court do not adequately vindicate the constitutional right at 

issue. See, e.g., State v. Brown, 216 N.J. 508, 528-29 (2014) 

(stating New Jersey’s rule regarding standing to file motion to 

suppress); State v. Novembrino, 105 N.J. 95, 157-58 (1987) 

(declining to recognize good-faith exception to exclusionary 

rule); Hunt, supra, 91 N.J. at 345 (articulating “[s]ound policy 

reasons” for departure from federal law with respect to police 

access to telephone billing records). This case, I respectfully 

submit, presents no reason for New Jersey search and seizure law 

to deviate from Fourth Amendment jurisprudence. Consistent with 

the standard of objective reasonableness that governs Fourth 

Amendment analysis, the Supreme Court’s holdings in Randolph and 
14

Fernandez require police officers to respect a present 

occupant’s manifest objection to a search, but do not compel 

them to engage in speculation about what an absent person would 

have done or said, had he or she been at home when police 

arrived. With no “objector . . . standing in the door saying 

‘stay out,’” in this case, Fernandez, supra, 571 U.S. at ___, 

134 S. Ct. at 1136, 188 L. Ed. 2d at 37, the majority 

necessarily assumes that had he been released, defendant would 

have returned home immediately and objected to the search of the 

residence -- notwithstanding the consent of his aunt, who was 

evidently the senior member of a three-generation household. In 

my view, given the rapid decisions that must be made by law 

enforcement as an investigation unfolds, the majority’s opinion 

risks miscommunication and introduces uncertainty, which is 

precisely what the Supreme Court sought to eliminate with the 

bright-line rule announced in Fernandez.

In sum, I would interpret Article I, Paragraph 7 in 

alignment with the Fourth Amendment analysis set forth in 

Randolph and Fernandez, and would accordingly reverse the 

Appellate Division’s determination. I respectfully dissent. 
1

SUPREME COURT OF NEW JERSEY

NO. A-15 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BYSEEM T. COLES,

Defendant-Respondent.

DECIDED May 19, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice LaVecchia

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY Justice Patterson

CHECKLIST AFFIRM AS 

MODIFIED REVERSE

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 1