STATE OF NEW JERSEY v. TERRANCE HEYWARD

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6536-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRANCE HEYWARD,

Defendant-Appellant.

_______________________________

 

Submitted May 20, 2009 - Decided

Before Judges Axelrad and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Union County, Indictment No. 06-12-1116.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Alan I. Smith, Designated Counsel, on the

brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress, defendant Terrance Heyward pled guilty to third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3), and was sentenced, in accordance with the plea agreement, to a five-year term with a thirty-month period of parole ineligibility. He appeals, arguing that the trial court erred in finding a valid consent to search and abused its discretion in imposing a thirty-month parole bar. We disagree and affirm.

According to the State's proofs, on September 17, 2006, Plainfield police conducted an undercover narcotics surveillance of the Elmwood Gardens housing complex, a high narcotics area. At around 2:30 p.m., Detective Daniel Staten, a sixteen-year veteran of the police force, recognized defendant sitting on a bench in the housing complex with another man whom the detective also knew. Staten knew, as well, that defendant did not live in the housing complex. A short time later, Staten observed a male, later identified as Randy Winn, approach defendant on a bicycle and engage in a short conversation. Defendant then got up and entered Building 536 of the housing complex, accessing the exterior door with a key card. About three minutes later, defendant exited the building, approached Winn, and handed him some small items in exchange for money. Winn left the area, and defendant returned to the bench. Based on his observations and accumulated experience of conducting over five hundred narcotics-related investigations, Staten believed he had just witnessed a drug transaction and therefore radioed back-up units to stop Winn. When Winn was apprehended, one fold of heroin was found in his possession.

Staten observed a second such transaction only a short time later. Another male approached defendant on a bicycle and engaged in short conversation, whereupon defendant again got up and entered the same building, only to exit three minutes later, walk over to the individual and hand him a small item in exchange for money. When the man left the area, Staten radioed the back-up units to stop him. When apprehended, the individual was found in possession of one fold of heroin.

Staten then requested the back-up units to arrest defendant. Detective Michael Black, working back-up, responded and arrested defendant. A search of defendant incident to his arrest revealed a key card to the housing complex and two regular keys, which, according to defendant, belonged to his girlfriend, Ruth Hertado, who lived in Apartment 3C.

Detective Black went to the apartment and knocked on the door. A woman answered and identified herself as Mrs. Jackson, advising that the apartment was her sister's residence and that she was watching the children and doing some laundry. When informed by Black that defendant had just been arrested and asked whether he had been in the apartment, Jackson replied that defendant had just been in and out of the apartment and had stopped at a closet near the front entrance door to the apartment. The closet was unlocked with a folding door. Believing drugs could be in the closet, Black then asked Jackson if he could search the closet and advised her of both her right to refuse to consent and to be present during the search. Jackson was cooperative, appeared concerned about the possibility of drug activity, and consented to a search of the closet. During his search, Black found folds of heroin on the second shelf of the closet with some folded clothes. No other area of the residence was searched.

On behalf of defendant, Ruth Hertado testified that her sister was at her apartment doing laundry and caring for the children. She expected Jackson to "make herself comfortable" and to use the house as needed to care for the children. Other than Hertado's bedroom, there was no place off-limits to her in the home. Hertado, however, offered a different version of Jackson's encounter with Black. According to Hertado, while shopping, she received a telephone call from her sister, who then handed the phone to an officer identified only as "Daniel." When the officer asked for permission to search the apartment, Hertado declined, suggesting instead that she would allow the police to search wherever they wanted upon her return home. On rebuttal, Black denied ever speaking to Hertado on the phone while at the apartment or that Detective Staten was at the apartment at any time during the entire investigation.

At the close of evidence, the motion judge, crediting the State's proofs, found that Jackson exhibited apparent authority and possessed actual common authority to render valid consent to search the closet. Judge Peim reasoned:

I find here, based on the testimony of Detective Black that voluntary consent was given, that Ms. Jackson was advised that she had the right to refuse or that she understood that she had the right to refuse, that she was actively cooperative and eager to have the search done because of her concern about the children, and that State has proved by clear and positive testimony that Ms. Jackson understood that she had the right to refuse, and also that her consent was freely and voluntarily given.

Furthermore, Ms. Jackson was in total control of the apartment. She had -- she was taking care of the children there. She was doing wash. She was, in essence, it was reasonable for the police to conclude that she had authority to do anything that was necessary at least as far as taking care of the kids and doing the wash, which would include access to the bathrooms, access to the kitchen, to the kids' rooms, the places where the kids had their stuff, and as Ms. Hertado said, she basically had access to everything other than her bedroom, which was private.

The police come on the scene. They see Ms. Jackson in what appears to be possession and control of the apartment even though she told them that she didn't live there. A sister, a close relative who lived there, she was taking care of kids who were there. She was doing domestic chores there. It was reasonable for them to assume that she had sufficient relationship and control over the property to give consent. In essence, her sister gave her that kind of control.

I would further note that her right of possession over the -- over the area was at least equal to that of defendant and probably superior.

. . . .

I would finally note that Ms. Jackson was in the apartment watching the children, and had at least apparent authority, and at least as far as Ms. Hertado was concerned, actually [sic] authority to do anything that was necessary to take care of these kids including that they were safe. And once she found out that there might be drugs in the apartment . . . in an unlocked area that the kids would have access to she very much, as anybody who is responsible for children,

. . . would want those drugs looked for and taken out of the apartment if he was there. This was definitely within her scope of authority . . . in the apartment to do what was necessary to keep the kids safe and take care of the kids, to give consent to the officers to get any drugs out of there that were necessary.

On appeal, defendant raises the following issues:

I. THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT ERRED IN FINDING A VALID CONSENT TO SEARCH THE CLOSET.

(A)

MS. JACKSON DID NOT HAVE SUFFICIENT COMMON AUTHORITY OVER THE PREMISES TO CONSENT TO A SEARCH OF THE CLOSET.

(B)

MS. JACKSON'S AUTHORITY OVER THE APARTMENT WAS NOT EQUAL TO AND DID NOT EXCEED THE DEFENDANT'S AUTHOTITY.

(C)

THE TRIAL COURT FAILED TO APPLY THE APPROPRIATE STANDARD OF PROOF IN DENYING THE MOTION TO SUPPRESS.

II. IMPOSITION OF THE 2 YEAR PERIOD OF PAROLE INELIGIBILITY CONSTITUTES AN ABUSE OF JUDICIAL SENTENCING DISCRETION.

We find no merit to any of these issues and therefore affirm substantially for the reasons stated by Judge Peim in his thoughtful oral opinion of March 30, 2007. We add only the following comments.

Consent is a well-recognized exception to the warrant requirement inasmuch as there is no longer any expectation of privacy, protectible by the Fourth Amendment. Katz v. United States, 389 U.S. 347, 358, 88 S. Ct. 507, 515, 19 L. Ed. 2d 576, 586 (1967). To be valid, of course, a consent to search must be freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 2058-59, 36 L. Ed. 2d 854, 875-76 (1973); State v. Johnson, 68 N.J. 349, 353-54 (1975). For consent to be truly voluntary, the State must show knowledge on the part of the person involved that he or she had a choice in the matter. Johnson, supra, 68 N.J. at 354; see also State v. Carty, 170 N.J. 632, 639 (2002). Such knowledge may be inferred from the totality of the circumstances. State v. Pante, 325 N.J. Super. 336, 349 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000).

Such consent may be obtained from either the person whose property is to be searched or a third party, so long as the consenting third party has the authority to bind the accused. United States v. Matlock, 415 U.S. 164, 168-70, 94 S. Ct. 988, 992-93, 39 L. Ed. 2d 242, 248-49 (1974). State v. Farmer, 366 N.J. Super. 307, 308 (App. Div.), certif. denied, 180 N.J. 456 (2004); State v. Miller, 159 N.J. Super. 552, 558-59 (App. Div.), certif. denied, 78 N.J. 329 (1978). Thus, in addition to being freely and voluntarily given, the State must prove that the consent to search "was obtained from a person who possessed a sufficient relationship with the property[.]" State v. Douglas, 204 N.J. Super. 265, 276 (App. Div.), certif. denied, 102 N.J. 378 (1985); see also State v. Lee, 245 N.J. Super. 441, 446 (App. Div. 1991). A relationship "sufficient" to validate consent exists where the third party possessed a "common [or shared] authority" over the premises or property to be inspected, or has rights of possession or control equal or superior to those of the suspect, or has an implied agency from which the police can reasonably infer an apparent authority to consent. United States v. Matlock, supra, 415 U.S. at 171, 177-78, 94 S. Ct. at 993, 996-97, 39 L. Ed. 2d at 250, 253; State v. Allen, 254 N.J. Super. 62, 67 (App. Div. 1992); State v. Lee, supra, 245 N.J. Super. at 446-47; State v. Douglas, supra, 204 N.J. Super. at 277.

Here, the evidence found credible by the motion judge established that Jackson acted with both actual and apparent authority to consent, and, therefore, her consent, knowingly and freely given, validated the warrantless search. In the first instance, Jackson was advised of her right to refuse and of her choice in the matter. Second, she was present in her sister's apartment performing domestic chores and "watching some children," circumstances from which the police could reasonably infer her apparent authority to consent to search. Third, by the owner's own admission, Jackson "could make herself comfortable," and was given unlimited access inside the premises other than Hertado's bedroom. Such virtually total and exclusive possession and control over the property is at least equal or superior to that of defendant and carries with it the actual authority, shared in common with her absent sister, to act in Hertado's stead. Indeed, we find it reasonable to conclude that the authority given Jackson to supervise the children present in the apartment encompassed the authority to take action necessary to ensure their safety, including, at the very least, to maintain a drug-free environment and to allow police to search a limited area therein to remove any drugs discovered. Thus, Jackson had the authority to consent, and her consent validated the police search of the closet.

Lastly, defendant challenges his sentence as excessive. Suffice it to say, our review of the trial judge's sentencing decision is quite limited. State v. Gardner, 113 N.J. 510, 516 (1989). We will not substitute our judgment for his. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984). Modification is only necessary if the judge mistakenly exercised his broad discretion and imposed a sentence that shocks the judicial conscience. Roth, 95 N.J. 334, 363-64 (1984).

 
The present offense is defendant's seventh indictable conviction. He was mandatory extended-term eligible. N.J.S.A. 2C:43-7. The trial judge found the three applicable aggravating factors, N.J.S.A. 2C:44-1(a)(3), (6) and (9), substantially outweighed the non-existent mitigating factors to warrant imposition of a thirty-month parole bar, consistent with the plea arrangement struck. Nothing about this sentence shocks our conscience.

Affirmed.

(continued)

(continued)

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A-6536-06T4

June 19, 2009