State v. SantanaState v. Santana
The State has appealed by leave granted from an order of the Law Division suppressing evidence of substantial quantities of cocaine recovered from behind the door panels of a car driven by defendant Santana and in which defendant Techera was a passenger. The car was owned by Techera‘s ex-wife and he had executed a consent to its complete search.
At that time neither defendant was under arrest nor had the police decided to arrest them. The officers were suspicious enough of the situation, however, to question Techera further concerning his travel plans. Techera responded that they were going to visit his sister and, when asked where she lived, Techera became visibly nervous, but eventually told them the location. Techera was asked if he had ever been arrested and responded that he had been convicted of conspiracy to distribute cocaine and had “done time” in Georgia.
After the form was signed, defendants and both officers walked to the rear of the vehicle. Trooper Nutt opened the trunk and started to search a suitcase and shoulder bag. When he began to open the shoulder bag, identified as Techera‘s, Santana became extremely agitated and excited, went to the trunk and began throwing the bags out of the trunk, pulling up the trunk‘s carpet and shouting “nothing, nothing, nothing!”
The officers, still believing that there was a need to investigate, decided that it would be preferable to return to their headquarters and complete the investigation there. Trooper Nutt explained this to Techera who, remaining very cooperative, agreed to drive the vehicle to headquarters accompanied by Santana but followed by the two officers in their patrol car. Upon reaching headquarters the troopers asked Techera to park his vehicle in the garage on the lower level. Defendants were then escorted up one flight of stairs to the radio room area where for safety reasons defendants were asked to wait in a holding cell immediately adjacent to and in view of the radio room. Trooper Nutt explained to Techera that the officers intended to finish searching the car downstairs. Techera remained pleasant and cooperative, saying “no problem, no problem, we‘ll stand by up here.” The officers then brought both
When the officers returned to the garage, Trooper Nutt resumed his search of Techera‘s shoulder bag and found inside it other packaging containing a second brown paper bag similar to the one he had located on the floor of the car. The second bag contained a much larger quantity of the white powder substance. Trooper Nutt then believed that there were narcotics hidden somewhere in the car. He stated that in his experience there were several commonly used places for hiding contraband, such as the spare tire well, false compartments in the trunk, false oil cans, over the wheel wells, under the carpet, inside hubcaps, in false containers under the hood, taped under a seat or the dashboard, behind false radios or behind pop-out type door panels. He proceeded first to search the car‘s trunk and found no contraband. He then went to the passenger door panel, reached under the bottom flap and popped out the panel by pulling on it. He reached into the door frame and felt a brick-like substance which he removed. His partner found and removed an identical object from the driver‘s door. The package contained a whiter substance than that found in the paper bags; from the color and packaging the troopers correctly believed that they had found cocaine. Each package contained approximately one kilogram. The door panels could be completely removed by unscrewing two screws and removing the door lock button. By proceeding as they did, the officers may have actually bent the door panel leaving small damage marks, although Trooper Nutt could not recall if the marks had been there before he had opened the panel. After the discovery of the cocaine the officers called for assistance from narcotic detectives, and approximately one hour later Trooper Nutt advised both defendants that they were under arrest.
The trial judge granted defendant Santana‘s motion to suppress on the grounds that defendant Techera‘s consent was not valid as to Santana. The judge also suppressed the cocaine
I
Treating first the issue of the third-party consent to the search, we find that the trial judge mistakenly applied State v. Pierce, 190 N.J. Super. 408, 417 (App.Div. 1983) which in turn relied upon State v. Alston, 88 N.J. 211, 228 (1981). The search in Pierce, however, implicated an entirely different principle, namely, that a search of a car consented to by one having control of the vehicle does not necessarily include a search of the private property of another contained within the car, that property being defendant Carroll‘s pocketbook. Pierce‘s reliance upon Alston was solely for the principle of standing, i.e., that New Jersey liberally views the issue of standing and permits a defendant to question the validity of a search “if he has a proprietary, possessory or participatory interest in either the place searched or the property seized.” State v. Alston, 88 N.J. at 228. The issue before us, however, is not one of standing. There is no question that defendant Santana had standing to raise the issue of an unlawful search and seizure had contraband been found in his private property, since only he could have given the consent to such a search.
New Jersey, however, recognizes that there may be dual control over a particular location. In such a case either party has the authority to grant the right to search at that location. See State v. Douglas, 204 N.J. Super. 265, 276-278 (App.Div. 1985); State v. Miller, 159 N.J. Super. 552, 556 (App. Div. 1978), certif. den. 78 N.J. 329 (1978). Cf. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), applying the federal standard. It is unclear from the facts here
The issue may be resolved by resort to an intermediate ground. The New York rule of People v. Cosme, supra, may be applied, tempered by an evaluation of the property rights of the respective actors. The determination of the validity of the search should be based upon an evaluation of the objecting party‘s rights to the property searched against those of the consenting joint possessor. See United States v. Impink, 728 F.2d 1228 (9th Cir.1984) (where suspect is present and objects to search, implied consent by third party with inferior property interest is not effective); Lucero v. Donovan, 354 F.2d 16 (9th Cir.1965) (permanent resident‘s objection prevails over part-time resident‘s consent). Thus, if the objecting party has the right
Since the reasonableness of the police action at the time is the question to be determined, the case must turn upon the appearances of control at the time, not any subsequent resolution of questions of title or property rights. Here, the passenger, Techera, who gave permission to search was the one who apparently had the owner‘s permission to use the car. When the search was authorized he clearly appeared to have a property interest equal or superior to that of Santana who was merely the driver. We conclude, therefore, that although defendant Santana had standing to test the search and seizure, the apparent joint or superior control exercised by Techera over the car authorized him to permit the search without Santana‘s consent, and even over his objection.
II
We then must determine as to both defendants whether the scope of the search exceeded the permission given by defendant Techera. The consent may have been vitiated by either of two actions by the troopers: first, separating Techera from the location of the search, and second, allegedly invading the structural
A.
There is no question that the scope of a consent search is limited by the terms of its authorization. Walter v. United States, 447 U.S. 649, 656-57, 100 S.Ct. 2395, 2401-02, 65 L.Ed.2d 410, 417-18 (1980). The State has conceded that defendants need not rely upon any implied right to terminate the consent search, since at Trooper Nutt‘s suggestion, the consent was expressly given upon condition that the search could be terminated at Techera‘s direction at any time. Cf. United States v. Dichiariante, 445 F.2d 126 (7th Cir.1971); United States v. Bily, 406 F. Supp. 726 (E.D.Pa. 1975). Although the State has urged that if Techera wished to revoke his consent while in the holding cell, he should have tried to get the attention of the radio dispatcher who could then have called down to the garage and relayed Techera‘s wishes to the investigating officers. This is farfetched. There is no indication that there would be a timely transmission of such a message, and even more important, Techera would not have possessed sufficient information to know whether to revoke his consent in order to stop the search.
There are, however, circumstances from which the trial judge could have determined that the termination on demand condition was waived when Techera stated that he had no objection to waiting in the holding cell while the officers completed the search. This statement could have been found to have been an implicit waiver of the express condition that Techera be present and able to stop the search. If the express condition were waived, then for the search to be invalid for this reason, we would be required to determine as a matter of law that a consent search (with either an express or implied right to
Such a conclusion is within the constitutional protections articulated by our Supreme Court in State v. Johnson, 68 N.J. 349, 352-354 (1975), even recognizing that Johnson imposes a more stringent test under the
B.
Defendants next contend that the State exceed the scope of the consent search by improperly invading the structural integrity of the vehicle, citing State v. Murray, 151 N.J. Super. 300 (App.Div. 1977), cert. den. 75 N.J. 541 (1977). The trial court relied upon Murray in determining that the
We are convinced, however, that when the officer, unsuccessful to that point in uncovering additional contraband, commenced interfering with the structural integrity of the vehicle itself, the search he was conducting transcended all bounds of reasonableness. A search reasonable in its inception may nonetheless violate the Fourth Amendment by virtue of its intolerable intensity and scope. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Its scope and intensity must not be disproportionate to the circumstances giving rise to it. The notion that a search originally justified may be without limit is rejected. [Id. at 307].
There is a different scope, however, to a search conducted immediately following an arrest to determine whether there is a weapon or additional contraband that could be reached or disposed of prior to obtaining a search warrant and, as here, a complete search of the vehicle. What we have before us is a consent search in which defendant Techera agreed to a “complete search” of the vehicle, not merely a cursory examination of the passenger compartment and trunk. The search that may be conducted pursuant to such a consent is akin to the search permitted upon a valid warrant; and it would be futile for defendants to argue that if a warrant had issued for a search of the vehicle, the compartment beneath the sink in Murray or the area behind the door panels here would have been sacrosanct.
In the case before us Techera could have declined to grant consent, in which case either there would have been sufficient evidence for the police to obtain a warrant, or defendants would have been free to proceed on their trip. Trooper Nutt candidly
This is not to say that even with a warrant or a consent to a complete search, a “French Connection” type of search, may be accomplished. Without specific judicial authorization for good cause shown, we do not envision the police searching with acetylene torches or otherwise destroying the utility of the vehicle. Even in a situation as the one before us where the method employed was bending the panel rather than removing two screws, if there is permanent damage to the vehicle caused by a clumsily executed search into a permissible area, the State may be responsible for the ensuing damage. But this should not vitiate the search nor cause its results to be suppressed. Readily removable portions of a car may be disturbed to determine what lies beneath. See United States v. Torres, 663 F.2d 1019 (10th Cir.1981), where pursuant to a “complete” consent search, the police removed an ashtray in the side of the door, observed some money and then removed the air-vent cover in the side of the door. Defendants argue that the Torres case is distinguishable because the ashtrays were readily removable. We do not, however, see this as a valid distinction. The door panels in this case also were readily removable without inflicting either cosmetic or utilitarian damage to the vehicle.
As we view this matter, the sole issue remaining to be determined in this case on remand is whether defendant Techera implicitly or explicitly waived his right to revoke his consent when he agreed that the search to which he had previously consented could be carried out while he waited in the holding cell. If so, we see no impediment on the facts developed below to the introduction of the cocaine as evidence.
The suppression order is reversed and this matter is remanded to the Law Division for further proceedings in accordance with this opinion.