SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 19 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. LAWRENCE W . LAPCZYNSKI, Defendant

- Appellant.

___________________________ _

Argued January 6, 2022

– Decided March 9 , 202 2 Before Judges Alvarez, Mawla, and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 18

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- 0178. Elizabeth C. Jarit, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Elizabeth C. Jarit, of counsel and on the brief s ). Lila B. Leonard, Deputy Attorney General, argued the c ause for respondent (Andrew J. Bruck, Acting Attorney General, attorney; Lila B. Leonard, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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PER CURIAM After defendant Lawrence Lapczynski's motion to suppress evidence seized without a warrant was denied , he pled guilty to th e only charge against
him , third

- degree endangering the welfare of a child, N.J.S.A. 2C:24

- 4(b)(5)(b). On November 18, 2019, t he Law Division judge sentenced him to three days' time served and parole supervision for life, N.J.S.A. 2C:43

- 6.4. Defendant
ap peals the denial of t h e motion. We affirm. The following is drawn from the testimony and exhibits introduced during the suppression hearing. Before defendant's arrest, he and Justin Obuch had
been roommates for approximately seven years , first in an apa rtment, and then
in Obuch 's house . Defendant paid Obuch rent and initially lived upstairs. As members of Obuch's family moved in, including his wife and child, defendant relocated to the basement. He shared the common areas of the house, such as the kit chen and the upstairs bath room . Defendant created office space for himself in the shared basement laundry room and maintained his computers there. The router for the home internet , listed under Obuch's name, was connected to defendant' s desktop computer . Obuch , who worked in IT, use d defendant's computer to maintain the internet system and troubleshoot any3 A

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problems. Defendant acknowledged leaving his desktop computer screen open, and that others could have accessed the comp ut er . On the day i n question, Obuch went downstairs to work on the internet connection because the home system was down. While making the adjustments , Obuch opened a folder on defendant's screen labeled "picture s. " He found a trove of pornographic images of underage adole scents and children, some 1,72 5 pages in all. Obuch viewed only a few of the photos, called his wife, and immediately called police. When the officers arrived, Obuch le d them downstairs to show them the pictures . T he two officers asked Obuch to show
the m what he had seen. After viewing approximately five photographs, they instructed Obuch to stop. Defendant was away on business that weekend. Obuch could not recall whether he obtained defendant 's permission before using his computer on three or four past occasions, including this instance. When Obuch asked the officers how he should explain the fact police had taken defendant's computer and related devices , they told him to make up a story. Defe ndant, who the motion judge found not credible, claimed Obuch told him the police had arrived unannounced with a warrant. Obuch acknowledged he might have said as much , but because two years had passed , he simply coul d not remember.4 A

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P olice asked defendan t to come to the station for questioning upon his
return . The record does not indicate whether police transported him or he drove
himself . He was not handcuffed. At 9:50 in the morning, Detective George Stilwell of the Middlesex County Prosecutor's Offi ce and Detective Robert Wei of the Piscataway Police Department conducted the recorded interview , which
t he judge watched during the suppression hearing. The officers began by read ing defendant his Miranda 1 rights , which de fendant waived. Stilwell asked defendant about the child pornography on his computer : " i t's a matter of, you know, you explaining what it's doing there." Defendant responded: "I would imagine

-- I don't want to call it that, but I would call it, you know, teen underage, you know, artistic stuff. And the

-- I guess I've got a problem. I gu ess I

-- I (indiscernible) did it for a while." Defendant denied sharing the materials or having "do[ne] anything." Defendant then added, " [ i ] t's just

-- it's a fantasy." Stilwell responded that if defendant "need[ed] some type of help, I mean, that is

-- that's the first

- - you know, that's the first step."
The officers in qu i red about websites, forums, and whether others were involved

. Stilwell said: "You know, through this, maybe, you know, we can get you s ome help, maybe.

. . . [Y] ou can, you know , seek some help, like that.

1 Miranda v. Arizona , 384 U.S. 436 (1966).5 A

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Right now, if

-- I'm going to ask you for consent to go through your computers [

. ] " Stilwell explained the consent would include all of defendant's devices. Stilwell left the room for a few minutes, and upon his return asked whether defendant had ever gotten images from the "dark web , " about his high school coaching, and whether he spent "private time" with his nieces and nephews. Defendant insisted h is activities were limited to the possession of pornographic material and th at it was a "private fetish." He acknowledged that the internet at the home , and the IP address, w ere under Obuch's name. Stilwell left the interview room a second time to obtain the consent form

. The detective had defendant read the following language o ut loud before signing the form: Having been . . . informed of my constitutional

rights, first, that I may require that a search warrant be obtained prior to any search being made; second, that I may refuse to consent to any search; third, that anything w hich may be found as a result of a search which is subject to seizure and can and will be seized and used against me in a criminal prosecution; fourth, that I may revoke my consent to search at any time; fifth, that I may consult with anyone of my choosing before I make a decision to waive my rights by consenting to this search. I hereby authorize a complete search of the property under my control described as

-- listed. At 10:42 a.m., defendant signed the consent

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At the suppression hearing, d efendant t e st ifi ed he only signed the consent because Obuch told him the police had a warrant. H e had therefore assumed signing the form was not important

. Now, on appeal, defendant raises the following points:
POINT I
THE WARRANTLESS SEARCH OF THE DEFENDANT'S PERSONAL COMPUTER BY THE LANDLORD AT THE DIRECTION OF THE POLICE VIOLATED THE FOURTH AMENDMENT AND ARTICLE I, PARAGRAPH 7, REQUIRING SUPPRESSION.
A. The State conducted a warrantless search of [defendant's] personal computer where no exception to the warrant requirement applied.
B. The later

- signed consent form did not purge the taint of the unlawful search and seizure.
POINT II SUPPRESSION IS ALTERNATIVELY REQUIRED BECAUSE THE CONSENT PROVIDED TO CONDUCT A FORENSIC SEARCH OF THE COMPUTER EQ UIPMENT WAS NEITHER KNOWING NO R VOLUNTARY WHERE THE POLICE FRAMED THE CONSENT AS A STEP TOWARDS GETTING THE DEFENDANT "HELP" AND WHERE THE DEFENDANT BELIEVED THE POLICE ALREADY HAD A WARRANT TO SEARCH HIS PROPERTY.7 A

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- 19 I. Appellate courts reviewing motions to suppress defer to trial courts' factual findings if "supported by sufficient credible evidence in the record." State v. Jessup , 441 N.J. Super. 386, 389 (App. Div. 2015) (quoting State v. Hubbard , 222 N.J. 249, 26 2 (2015)). But whether those facts "sa tisfy the
app licable legal standard is a question of law subject to plenary review on appeal." Id. at 389

- 90 (quoting State v. Cleveland , 371 N.J. Super. 286, 295 (App. Div. 2004)). We review legal conclusions de novo. Id. at 390.
Po lice may only search pursuant to a warrant or an exception to the warrant requirement. State v. DeLuca , 168 N.J. 626, 631 (2001). The State must meet that burden by a preponderance of the evidence. State v. Elders , 192 N.J. 224, 246 (2007). Where unlawful police misconduc t occurs, evidence is suppressed. In re J.A. , 233 N.J. 432, 446

- 47 (2018); see also State v. Hamlett , 449 N.J. Super. 159, 176 (App. Div. 2017). Both the federal and New Jersey constitutions enshrine an objectively reasonable expectation of privacy. See State v. Hinton , 216 N.J. 211, 236 (2013). "[A] policeman does not trespass when he enters the common areas [of a multi

- resident dwelling] in discharge of his duties." State v. Smith , 37 N.J. 481, 4 96 (1962); see also State v. Johnson , 171 N.J. 192, 209 (2002) ( Johnson8 A

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I ) ("none of the occupants [of a multi

- occupancy premises] can have a reasonable expectation of privacy in areas that are also used by other occupants."). Defendant does not challenge the mere presence of the police in the shared laundry room. Instead, he contends his computer 's mere presence in the laundry
room did not justify police intrusion into its contents

. He also contends Obuch ha d no right to show police the "pictures" folde r. The rule against unreasonable searches and seizures , however, only applies to state action. In re J.A. , 233 N.J. at 451

- 52. A private person acting "as an arm of the police" may be treated as a state actor for constitutional
purposes. Id. at 452 (quoting State v. Scrotsky , 39 N.J. 410, 416 (1963)). In contrast, a private person who independently obtains a defendant's property and gives it to police is not a state actor, and such evidence need not be suppressed. Ibid. The court must excl ude evidence obtained by a private party's search and seizure when "the government ha[d] pre[

- ]knowledge of and yet acquiesce[d] in" a search that the government "could not have undertaken" itself. State v. Sanders , 185 N.J. Super. 258, 265 (App. Div. 198 2) (quoting United States v. Clegg , 509 F.2d 605, 609 (5th Cir. 1975)) . "[W]here [government] officials9 A

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actively participate in a search being conducted by private parties or else stand by watching with approval as the search continues, [government] autho rities are clearly implicated in the search and it must comport with [constitutional] requirements." Id. at 266 (quoting United States v. Mekjian , 505 F.2d 1320,
132 7 (5th Cir. 1975) ). Further, "the private search doctrine cannot apply to private dwellings." State v. Wright , 221 N.J. 456, 476 (2015). And generally, "a landlord does not have the authority to consent to a search of a tenant's private living space." Ibid. The private se arch doctrine recognizes the "special status of the home under federal and state constitutional law . . . ." Id. at 477. "If private parties tell the police about unlawful activities inside a person's home, the police can use that information to establis h probable cause and seek a search warrant." Id. at 478. "But law enforcement cannot accept a landlord's invitation to enter a home without a warrant unless an exception to the warrant requirement applies." Ibid. However, Wright does not "cast doubt on the private search or third

- party intervention doctrine in its original form. When the police reexamine property that has been searched by a private actor and presented to law enforcement in a

non - residential context, neither the Fourth Amendment nor the State Constitution requires a warrant." Id. at 479.10 A

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Where a private actor performed the initial search, police may perform a subsequent search that "does not exceed the scope of the private search" so long as the police do not violate any constitutional privacy right "that had not already been frustrated as a result of the private conduct." State v. Shaw , 237 N.J. 588,
608 (2019) (quoting United States v. Jacobsen , 466 U.S. 109, 12 6 (1984)).
"A co

- habitant who possesses common authority over or has a s ufficient relationship to the premises or effects sought to be inspected may voluntarily consent to a lawful search." State v. Lamb , 218 N.J. 300, 315 (2014).

The authority which justifies the third

- party consent does not rest upon the law of property, w ith its attendant historical and legal refinements [ , ] but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co

- inhabitants has the right t o permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. [ Id. at 316 (quoting United States v. Matlock , 415 U.S. 164, 171 n.7 (1974) ) .] Obuch did not functio n as a state actor by open ing the child pornography file and contacting law enforcement

. H e wanted to turn responsibility for the images over to police . The officers did not a sk him to open the computer to perform the initial search ; d efendant allowed Obuch to use the computer

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viewed no more than the photographs Obuch had already seen. Even i f this constituted a search, it did not exceed the boundaries of what Obuch had already observed.
Furt hermore , Obuch had sufficient authority over his roommate's computer to consent to the officers ' search . Defendant's computer controlled the
home 's internet , and Obuch had previously accessed it without incident for maintenance. T he computer was left ope n without password protect ion. Additionally, the folder containing the materials lacked password protect ion

. Defendant therefore assum ed the risk his crime would be discovered. H is
act ions led Obuch to believe he had the right to be in that common area a nd exercise control over the computer. And it is unsurprising that a person using another's computer would look at the contents

. D efendant and Obuch 's relationship went beyond that of landlord and tenant. They had been roommates and friends for years. D efendant kept his computer open , which meant anyone could use it

. Because he made the device available to others in the home, defendant had no objectively reasonable expectation of privacy

. I f such a reasonable expectation of privacy existed, which it did not , the home's other occupants

— Obuch specifically

— could waive his rights

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Wright 's restrictions do not apply to this search. Defendant's computer sat in a common space and could be freely accessed by Obuch when necessary.
Therefo re , it wa s constitutional ly permissible for police to view the photographs Obuch had already seen . The search was lawful.
II. Defendant challenges the validity of the consent to search on two grounds

. F irst, he claims th e illegal search could not be mad e lawful by virtue of the later
consent . Second, he contends the consent was not knowing or voluntary because the police "framed [it] as a step towards getting the defendant 'help' and where the defendant believed the police already had a warrant to searc h . . . ." Since we have found that the police constitutionally view ed the contents of the computer , w e address only the voluntariness of defendant's written consent. Consent is a recognized exception to the warrant requirement. See Schneckloth v. Bustamonte , 412 U.S. 218, 248

- 49 (1973); State v. Coles , 218 N.J. 322, 337 (2014). Consent searches "are afforded a higher level of scrutiny" under New Jersey law than federal law. State v. Carty , 170 N.J. 632, 639 (2002). Namely, the Sta te must show by a preponderance of the evidence that the consenting defendant acted knowingly and voluntarily and "knew that he or she 'had a choice in the matter.'" Ibid. (quoting State v. Johnson , 68 N.J. 349, 35413 A

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(1975) ( Johnson II )). Courts must exam ine the "totality of the circumstances" to determine whether a finding of consent is "supported by sufficient credible evidence in the record." Shaw , 237 N.J. at 619. Specifically, the following factors tend to indicate coerced consent:

(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 se arch 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. [ State v. Hagans , 233 N.J. 30, 39 (2018) (alteration in original) (quoting State v. King , 44 N.J. 346, 352

- 53 (1965)).] In contrast, the following factors tend to indicate that consent was given voluntarily: "(1) that consent was given where the accused had reason to believe that the police wo uld find no contraband; (2) that the defendant admitted his guilt before consent; [and] (3) that the defendant affirmatively assisted the police officers." Id. at 39

- 40 (alteration in original) (quoting King , 44 N.J. at 353). Both sets of factors are mer e "guideposts," and no one factor is dispositive. Id. at 40.14 A

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"[F]alse promises of leniency" that could "overbear a suspect's will" may also indicate coerced consent. State v. L.H. , 239 N.J. 22, 44 (2019). The promise must undermine the defendant's abil ity to choose for himself so as to render his consent involuntary. Id. at 45. Additionally, "[o]nce a search has begun, there is no effective right to refuse. Therefore, consent given after the search has begun is neither voluntary nor meaningful." Hor nberger v. Am. Broad. Co s . , 351 N.J. Super. 577, 600 (App. Div. 2002). Defendant's claim the consent was not knowing or voluntary is not supported by the record. Defendant admitted possessing child pornography before Stillwell ever suggested get ting "hel p" for defendant' s "problem

. " In other words, defendant incriminated himself long before the suggestion of getting help, which in turn was made well before defendant sign ed the consent. Nor were t h e officers ' statements coercive. It bears noting that the officers did not offer to obtain the help for defendant ; t hey merely suggested he could get help for himself

. When asked for written consent , defendant immediately agreed. He knew that police already possessed the damning materials

. Additionall y, the o ff

i ce r s thorough ly review ed the consent form with defendant , even asking him to read it out loud

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Defendant also contends he only signed the written consent because he believed the police had obtained a warrant. This too lacks support in the reco rd.
T he judge specifically found defendant incredible when he te s t i fie d Obuch told him t hat officers had come with a warrant. Obuch , who m the judge found credible, only recalled that the officers told him he c ould lie about the reason the devices were missing . A lthough Obuch said it was possible he told defendant the officers had a warrant , it is wholly speculative to conclude defendant's consent was given under th a t misapprehension. It seems self

evident that i f the officers already had a warrant, they would not have asked
defendant for consent.
T hus, t he detectives who interviewed defendant did not deceive him about having a warrant or getting him "help" in exchange for the consent to search

. There is nothing coercive or deceitful about the circumstances in which defendant signed the written consent. F rom the inception of the interview , defendant eager ly answered questions and appeared willing to cooperate with the investigation

. Affirmed.