STATE OF NEW JERSEY v. DAMION BEEPUT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3809-07T43809-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

DAMION BEEPUT,

Defendant-Appellant/

Cross-Respondent.

________________________________________________________________

 

Argued February 4, 2009 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior County of New Jersey, Law Division, Monmouth County, Indictment No. 07-07-1569.

Michael R. Hobbie argued the cause for appellant/cross-respondent (Hobbie, Corrigan Bertucio & Tashjy, P.C., attorneys; Norman M. Hobbie and Edward C. Bertucio, Jr., of counsel; Mr. Bertucio, on the brief).

Carol M. Henderson, Assistant Attorney General, argued the cause for respondent/cross-appellant (Anne Milgram, Attorney General, attorney; Ms. Henderson, of counsel and on the brief).

PER CURIAM

Defendant, Damion Beeput, appeals from his conviction on first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(b)(1). The judge sentenced defendant to a twelve-year term of imprisonment, subject to a four-year parole ineligibility term, to be served concurrently with the sentences defendant was serving on five other indictments. Appropriate fines and penalties were imposed. The conviction resulted from the entry of a negotiated plea of guilty, in which, pursuant to Rule 3:5-7(d), defendant reserved the right to challenge on appeal the denial of his motion to suppress.

On appeal, defendant maintains the judge erred by concluding he abandoned the CDS that police recovered on a public street. He further maintains that the judge erroneously determined that two different consents to search, one given by his former girlfriend and the other given by his mother, were valid. In a cross-appeal, the State contends the judge erred by suppressing CDS-related items found in defendant's bedroom in his mother's home, which police searched pursuant to a different consent to search obtained from defendant's mother. We affirm on both defendant's appeal and the State's cross-appeal.

I.

On the evening of March 20, 2007, Detective Scott Samis of the Monmouth County Prosecutor's Office set up surveillance at two locations in Asbury Park in furtherance of a narcotics investigation he was conducting in conjunction with members of the Asbury Park police department. In particular, Samis received information from a known and reliable confidential informant (CI) who alleged that defendant had recently purchased a large quantity of cocaine, and buyers had been calling defendant all day to place their purchase orders. Samis was also aware, from a flyer issued by the Pemberton Township police department, that defendant was in possession of an automatic weapon, which the confidential informant had also stated. Before setting up the undercover surveillance, Samis checked to determine whether defendant had any outstanding warrants, and learned that there was an active warrant from the Keyport Municipal Court for failure to appear on a charge of driving while suspended.

Relying on the information provided by the CI, Samis setup undercover surveillance at the two locations from which the CI alleged defendant was selling the CDS: his mother's house at 25-B Ridge Avenue and the apartment of his former girlfriend, Shanelle Booze, located at 268 Asbury Park Village.

During the surveillance, Sergeant Amir Bercovicz was in an unmarked vehicle observing activity at 25-B Ridge Avenue, the home of defendant's mother, when he observed defendant come out of the rear portion of the house on various occasions and speak to people who had approached. At one point, a silver Volkswagen pulled into the driveway. Shortly thereafter, Bercovicz observed defendant exit the house and engage in a hand-to-hand transaction with the woman in the vehicle. After checking the vehicle's registration, Bercovicz learned that the car belonged to a woman known to Bercovicz as a narcotics buyer.

At approximately 9:20 p.m., defendant and his co-defendant, Kyle Johnson, entered a car and left defendant's mother's house. When defendant's vehicle entered the U-shaped parking lot of Asbury Park Village, where Booze lived, Officer Newman activated the lights of the unmarked police vehicle to initiate a stop. Rather than stopping his vehicle immediately, defendant pulled into the center of the parking lot, stopped his car, jumped out and fled.

Newman, after identifying himself as a police officer, ordered defendant to stop. Defendant kept running, and Newman followed in pursuit. While defendant was running, Newman observed him throw two plastic bags, one white and one yellow, over a fence into the yard of a house. Although the white bag cleared the fence, the yellow bag did not. When defendant realized what had happened, he stopped, ran back and threw the yellow bag over the fence a second time. Newman was able to tackle defendant and take him into custody. Newman retrieved the bags and discovered they contained crack cocaine. At the scene, Samis informed defendant of his Miranda rights, after which defendant gave a statement admitting any cocaine that might be found at his mother's house belonged to him, not her. When Samis asked defendant to consent to a search of his mother's home, defendant refused.

Despite defendant's refusal to consent to a search of his mother's home, police sought, and obtained, a written consent to search from defendant's mother, Valora Beeput. A search of defendant's unlocked bedroom yielded materials commonly used to weigh, process and package cocaine, but no CDS was found. With the search unsuccessful, Samis again contacted the CI and advised the CI that the search had produced no cocaine. The informant insisted that defendant had purchased a large package of cocaine earlier that day and asserted that police must have missed it during the search of the Beeput residence. Consequently, police returned to 25-B Ridge Avenue to ask defendant's mother to consent to a second search of her home. She signed the second written consent form at approximately 2:00 a.m.

This time, police decided to concentrate their search on the back of the house, near the area where defendant was earlier observed entering and exiting. In a mud room at the back of the house, which provided access to the outside, Bercovicz found a plastic bag containing what appeared to be a large quantity of crack cocaine, a scale, and one round of ammunition for a starter pistol.

Earlier that night, police had also obtained a consent to search from Booze, who informed police that at one time defendant had resided with her, but she had kicked him out when she realized he was dealing narcotics. She also told police there was some property of his remaining in the master bedroom. In a dresser drawer, police found cocaine and narcotics packaging equipment.

Defendant filed a motion to suppress. At the conclusion of the testimony, Judge Chaiet issued detailed findings of fact and conclusions of law. Turning first to the two bags of cocaine that defendant discarded while running from Officer Newman, he concluded that police observations of defendant engaging in a hand-to-hand sale of narcotics established probable cause to stop defendant's vehicle and arrest him. The judge held that once defendant discarded the CDS while fleeing from Newman, defendant surrendered any expectation of privacy in the property and police were consequently entitled to seize it. He thus denied defendant's motion to suppress the bags and their contents.

Turning to the search of defendant's bedroom in his mother's home, Judge Chaiet concluded that "the mother's consent cannot trump [defendant's] refusal to allow the search . . . [of] his bedroom . . . ." Therefore, the search of defendant's room ran afoul of Fourth Amendment protections and the judge suppressed the evidence found there.

The court reached a different conclusion concerning the cocaine found in the mud room of the house defendant shared with his mother. Pointing to the "hierarchy in the relationship between mother and son," the judge held that defendant "did not have the right to say other areas of his mother's home could not be searched." Consequently, the judge concluded that the written consent given by Valora Beeput at 2:00 a.m. was valid, and denied defendant's motion to suppress the fruits of that search.

Turning to the search of Booze's apartment, the judge specifically found the testimony of the investigator credible "and the written consent [signed by Booze] persuasive." The judge observed that "Booze voluntarily consented to the search of the apartment and she had the authority to consent to the search[,] which will allow the results of this search to be used against . . . defendant."

On appeal, defendant raises the following claims:

I. THE SEARCH OF THE BAGS AT THE SCENE OF APPELLANT'S ARREST WAS ILLEGAL AS THERE WERE NOT EXIGENT CIRCUMSTANCES AND THIS WAS NOT A SEARCH INCIDENT TO ARREST.

II. SINCE THE TRIAL COURT SUPPRESSED THE FIRST SEARCH OF 25B RIDGE AVENUE, THE EVIDENCE SEIZED DURING THE SECOND SEARCH SHOULD HAVE BEEN SUPPRESSED AS WELL, BECAUSE APPELLANT DID NOT CONSENT TO THE SECOND SEARCH EITHER.

III. THE TRIAL COURT SHOULD HAVE SUPPRESSED THE SEARCH OF THE BEDROOM THAT APPELLANT AND SHANELLE BOOZE SHARED AT APT 268 ASBURY PARK VILLAGE AS APPELLANT DID NOT CONSENT TO A SEARCH AND SHANELLE BOOZE'S CONSENT TO SEARCH WAS NOT VOLUNTARY.

In its cross-appeal, the State contends:

I. THE TRIAL COURT CORRECTLY DETERMINED THAT DEFENDANT ABANDONED THE PLASTIC BAGS HE DISCARDED WHILE RUNNING FROM THE POLICE.

II. THE CONSENT SEARCHES OF THE HOMES OF DEFENDANT'S MOTHER AND HIS PARAMOUR WERE VALID.

II.

Warrantless searches and seizures are presumptively unreasonable and are therefore invalid unless falling within a recognized exception to the warrant requirement. State v. Johnson, 193 N.J. 528, 552 (2008). The burden is on the State, as the party seeking to uphold a warrantless search, to prove by a preponderance of the evidence that such search falls within one of those recognized exceptions. State v. Pineiro, 181 N.J. 13, 19-20 (2004). In this case, the State relies on two such exceptions here, abandonment of property and third-party consent to search.

In Point I, defendant maintains that the search of the plastic bags "at the scene of [defendant's] arrest" was illegal as the search was not conducted incident to arrest and no exigent circumstances were presented. We need not address either of those contentions because we are satisfied, as was the judge, that defendant abandoned the plastic bags in question, thereby forfeiting any expectation of privacy in the content of the bags and surrendering his right to challenge their seizure as unlawful. As the Court recently observed in Johnson, supra, "if the State can show that property was abandoned, a defendant will have no right to challenge the search or seizure of that property." 193 N.J. at 548-49. For purposes of the Fourth Amendment, "a defendant 'abandons' property when he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search." State v. Farinich, 179 N.J. Super., 1, 6 (App. Div. 1981) (citation omitted), aff'd o.b., 89 N.J. 378 (1982).

The record amply supports Judge Chaiet's finding that defendant intended to discard the two bags and put as much distance between himself and those two bags as possible. In fact, he discarded one of the bags not once, but twice, when he threw it over the fence a second time. Unquestionably, the record fully supports the judge's finding that defendant voluntarily and intentionally relinquished his interest in those bags and their contents.

We recognize that if an unconstitutional seizure of a defendant precedes the abandonment, the abandonment is not deemed voluntary and a motion to suppress should under those circumstances be denied. See State v. Hughes, 296 N.J. Super. 291, 296 (App. Div.), certif. denied, 149 N.J. 410 (1997). Here, we are satisfied that the seizure of defendant was lawful. Specifically, the order to stop was valid because of the outstanding arrest warrant and because defendant had recently been observed engaging in a hand-to-hand drug transaction. The officers' observations of that illegal conduct gave them probable cause to stop defendant and arrest him. State v. Anaya, 238 N.J. Super. 31, 36 (App. Div. 1990), rev'd on other grounds, State v. Dillihay, 127 N.J. 42, 49-50 (1992). Consequently, we affirm the judge's determination that the two bags defendant threw to the ground were abandoned and were lawfully seized. Judge Chaiet correctly denied defendant's motion to suppress evidence of the bags and their contents.

III.

Rather than proceed directly to defendant's Point II, we begin our analysis with a review of the general principles governing consent as an exception to the warrant requirement. A consent to search given by a third party satisfies the Fourth Amendment so long as that party has "authority to bind the other party." State v. Crumb, 307 N.J. Super. 204, 242 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). Thus, a third person who possesses "common authority over or other sufficient relationship" to the property sought to be inspected may consent to its search. Id. at 243 (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974)). Moreover, as we observed in Crumb, "New Jersey is among the overwhelming majority of [jurisdictions] holding that a parent has the right to consent to the search of the property of his or her son or daughter." Ibid. "Even in cases where the child has reached adulthood, courts have been reluctant to find that the son or daughter had exclusive possession of a room in the parent's home." Id. at 243-44.

However, there are circumstances where a parent's consent is invalid because the child has exclusive possession of his bedroom, and the parent therefore lacks the authority to bind the son or daughter. Ibid. In Crumb, we reviewed a number of cases from other jurisdictions and identified some of the factors that can lead to a determination that the child has exclusive possession. We observed that if the child pays rent for the room, or limits access to the room, such conduct is consistent with exclusive possession. Id. at 244-45. Those factors were by no means an exhaustive list.

We turn now to this case, and begin with the search of defendant's bedroom. Crumb, unlike this case, did not involve a situation where police searched a son's bedroom knowing that the son had already explicitly refused to consent to such search. Thus, we must determine whether defendant's specific withholding of consent to search the home he shared with his mother vitiates the potentially legitimate authority of his mother to consent to a search of defendant's room in her home.

As we have discussed, an adult child, by his conduct or as a result of the surrounding circumstances, can exercise exclusive possession of his own bedroom, thereby vitiating any consent to search given by his parent. We view defendant's express refusal to consent as an assertion of such exclusive possession. Consequently, we agree with the judge's conclusion that, on balance, defendant's mother's consent to search defendant's bedroom should not be deemed to override his express refusal to consent to a search, especially in light of the limitations on the common authority doctrine that we identified in Crumb. We thus reject the claims the State advances in its cross-appeal and affirm the granting of the motion to suppress as it relates to the items found in defendant's bedroom.

IV.

We turn to an analysis of whether the scales tilt differently concerning defendant's mother's consent, issued at 2:00 a.m., to search the remainder of the house. The area searched, namely the mud room, was an area, unlike his own bedroom, where defendant had no greater authority over the premises than did his mother. Consequently, we must determine whether the rule recognized in Crumb--which gives a parent, as "head of the household," the right to consent to a search of areas of the home over which both the parent and offspring have common authority, Crumb, supra, 307 N.J. Super. at 244--would authorize the search of the mud room where, as here, defendant had already expressly refused to consent to a search of the home.

No reported decision in this State has determined whether a co-occupant's permission to enter a common area can be deemed to override the previously-expressed refusal of consent by another occupant; however, in Georgia v. Randolph, 547 U.S. 103, 120, 123 S. Ct. 1515, 1526, 164 L. Ed. 2d 208, 226 (2006), the United States Supreme Court addressed this issue. Randolph involved a slightly different factual scenario, namely one where the objecting co-occupant was physically present at the property at the time he expressed his refusal. We must determine whether that distinction has any Fourth Amendment significance.

In Randolph, the Supreme Court held that a warrantless search of a shared dwelling over the express refusal of consent by a physically present husband cannot be justified as reasonable despite the consent given to police by his wife. Ibid. The Supreme Court observed that because "a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, 'stay out[,]' [w]ithout some very good reason, no sensible person would go inside under those conditions." Id. at 113, 123 S. Ct. at 1522-23, 164 L. Ed. 2d at 221. The Court then concluded that one occupant's consent cannot override the other occupant's refusal to give consent:

Since the co-tenant wishing to open the door to a third-party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all. Accordingly, in the balancing of competing individual and governmental interests entailed by the bar to unreasonable searches, the cooperative occupant's invitation adds nothing to the government's side to counter the force of an objecting individual's claim to security against the government's intrusion into his dwelling place.

[Id. at 114-15, 123 S. Ct. at 1523, 164 L. Ed. 2d at 221 (internal citation omitted).]

The Court was careful to limit its holding to the precise facts presented. Id. at 121, 123 S. Ct. at 1527, 164 L. Ed. 2d at 226. The Court specifically stated that a fellow occupant who was "nearby, but not invited to take part in the threshold colloquy, loses out" even though, had he been asked, he might have objected:

[W]e have to admit that we are drawing a fine line; 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, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it.

[Id. at 121-22, 123 S. Ct. at 1527, 164 L. Ed. 2d at 226-27.]

Thus, the Court limited its holding to those circumstances where the objecting co-occupant is physically present and objects. Ibid. In this case, because defendant was not physically present, the State urges us to conclude that the Georgia v. Randolph rule should not be applied to invalidate the search of the mud room here. We question whether our own Supreme Court, which has frequently afforded criminal defendants more expansive protections in the Fourth Amendment context than has its federal counterpart, would agree with the United States Supreme Court's conclusion that an explicit refusal of consent by a defendant should be ignored merely because he was not present at the scene to express it. However, we need not decide this appeal based on defendant's lack of physical presence because we are satisfied--for a reason unrelated to lack of physical presence--that Mrs. Beeput's consent should be permitted to override her son's refusal.

In Georgia v. Randolph, the Supreme Court observed that the deference owed to an objecting co-occupant's refusal to consent does not apply when "the people living together fall within some recognized hierarchy, like a household of parent and child or barracks housing military personnel of different grades[.]" Id. at 114, 123 S. Ct. at 1523, 164 L. Ed. 2d at 222. Only where "there is no societal understanding of superior and inferior," are police obliged to honor the refusal to consent made by one co-occupant. Ibid. The Court observed that "[t]he constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations." Id. at 111, 123 S. Ct. at 1521, 164 L. Ed. 2d at 220. That being so, the Court limited its holding concerning physical presence to situations where there is a lack of any recognized superior authority between the disagreeing co-occupants. Id. at 114, 123 S. Ct. at 1523, 164 L. Ed. 2d at 222.

Here, we agree with the State that the hierarchy in the parent-child relationship, which the Court recognized in Georgia v. Randolph, and which we likewise recognized in Crumb, supra, 307 N.J. Super. at 244, is a sufficient reason standing alone, why the rule of Georgia v. Randolph is inapplicable here. Thus, the State is correct that Georgia v. Randolph provides no support for defendant's argument that his refusal to consent should have prevented police from seeking--and obtaining--consent from his mother to search the home's common areas, including the mud room.

During appellate oral argument, defendant acknowledged the "fine line" drawn by the Supreme Court in Georgia v. Randolph, but urged us to nonetheless apply its holding to the present case because of the possibility that police could easily remove a defendant from the premises so as to secure a then-valid consent from the remaining occupant. For two reasons, we decline defendant's invitation to consider such possibility here. First, as we have discussed, we are not deciding this appeal based on defendant's lack of physical presence. Second, there is no question about police conduct. The police did not lure defendant out of the home or remove him on some pretext. Instead, he exited his mother's home, entered his car and drove away. It was only then that police stopped him.

Consequently, we agree with Judge Chaiet's conclusion that a parent, as the head of the household, is authorized to consent to a search of common areas even when her son has already expressly withheld his consent. Ibid. Judge Chaiet properly rejected defendant's claims to the contrary. We thus affirm the denial of defendant's motion to suppress the CDS found in the mud room.

V.

In Point III, defendant argues that the trial court erred when it denied his motion to suppress the evidence seized in the bedroom that he formerly shared with Booze. From the record before us, it is clear that defendant was no longer a co-occupant of Booze's apartment. The record reflects that approximately one month before the day in question, Booze had thrown him out because he was dealing drugs from her apartment. Thus, Booze had sole control over the premises and had the right to consent to a search of her own apartment. Id. at 242-43. The record amply supports the judge's conclusion that Booze understood she had the right to refuse to consent but gave consent voluntarily nonetheless. Therefore, the judge correctly denied defendant's motion to suppress the items found at Booze's apartment.

We thus affirm on both defendant's appeal and the State's cross-appeal.

Affirmed.

 

Charges against Johnson were ultimately dismissed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-3809-07T4

March 5, 2009