STATE OF NEW JERSEY v. THOMAS P. REBARDO, JR

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS P. REBARDO, JR.,

Defendant-Appellant.

___________________________

December 17, 2015

Submitted December 2, 2015 Decided

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-01-0099.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence seized pursuant to consent he and his live-in companion provided, defendant Thomas P. Rebardo, Jr. pled guilty pursuant to a negotiated agreement1 to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and was sentenced to three years in state prison with parole supervision for life, N.J.S.A. 2C:43-6.4; and restrained from contact with the victim and her parents, N.J.S.A. 2C:44-8. He appeals the denial of his motion pursuant to Rule 3:5-7(d).

The only two witnesses at the suppression hearing were an Oaklyn police detective and an investigator in the Child Abuse Unit of the Camden County Prosecutor's Office. Following their receipt of a report that defendant had shown an eight-year-old girl pornographic videos on his laptop computer, masturbated in front of her and touched her buttocks on several different occasions when he babysat for her, the two went to defendant's home accompanied by two uniformed officers to pick defendant up. He was surprised and curious about the officers' arrival and expressed concern about his companion coming home to an empty house. The investigator allowed him to get his medication and asked him to bring along his laptop.

Once at the prosecutor's office, defendant was placed in an interview room and offered water. The investigator read defendant his Miranda2 rights and explained the child's allegations. Defendant acknowledged babysitting the child and that she once got a glimpse of a pornographic video that had popped up on his computer before he could quickly remove it from the screen. Defendant said that after seeing the video the girl became very curious, asking him questions about her body parts, as well as his. The child also asked defendant's live-in girlfriend about the girlfriend's body. Defendant admitted to masturbating in his home while he was babysitting the child but denied masturbating in front of her or touching her inappropriately. When the investigator offered defendant a voice stress test, he invoked his right to counsel and the interview ended, approximately an hour and a half after it began.

Defendant was arrested and transported to the Oaklyn Police Department for processing. On the way, they stopped at defendant's home to allow him to get more medication and change his clothes. While inside, the investigator asked him the whereabouts of a bottle of lotion the child referred to. Defendant told her where the lubricant was but did not offer to get it for her. She also asked defendant for the contents of a wastebasket in which the child claimed he had disposed of paper towels he had used to clean himself up. Defendant refused the request. At the police station, the investigator advised defendant she would be keeping his laptop, for which he signed a property receipt. Although the investigator could not recall specifically advising him he did not have to surrender the laptop, she testified, "[h]e he knew that he didn't I wouldn't keep it if just like with the trash can. If I don't have to take it if you don't want me to."

After surrendering his laptop, defendant called his girlfriend, whom he was supposed to be picking up from work. She was surprised by defendant's arrest and worried about how she would get home. The investigator offered her a ride. After the two arrived at the home defendant shared with his girlfriend, the investigator held open the screen door while the girlfriend let herself in. Although the investigator knew defendant's girlfriend lived in the home, the investigator was not aware how long she had lived there or whether she was on the lease.

Accompanying the girlfriend inside, the investigator asked her if she could take the contents of the wastebasket defendant had earlier refused to turn over. The investigator specifically advised her that she could refuse. The girlfriend let the investigator take the contents of the wastebasket, and the investigator prepared a property receipt, which the girlfriend signed.

A few days later, the girlfriend contacted the detective to say she wanted to turn over a bottle of lubricant and defendant's desktop computer. The lubricant the girlfriend gave the detective looked like the bottle described by the victim. A week later, the girlfriend called the investigator to offer some pornographic magazines she had found among defendant's things in the house. When the investigator went back to defendant's home, defendant's girlfriend signed a consent to search form for the magazines and, at the investigator's suggestion, added the contents of the wastebasket she had turned over to the investigator on the day of defendant's arrest.

After hearing the testimony, the judge rejected defendant's arguments that he had not voluntarily consented to the seizure of his laptop, and that his girlfriend did not have authority to consent to any seizure. Finding both State witnesses credible, the judge determined defendant's consent to the seizure of his laptop was knowing and voluntary. Although agreeing with defendant that the laptop was not voluntarily disclosed to the police because they initiated its seizure, the court nevertheless concluded that defendant was aware he could refuse consent as he had with the contents of the wastebasket from his home just a few hours earlier. The judge found defendant's execution of a property release form for his laptop, after he had refused the investigator's request to seize other items belonging to him, rendered his consent both knowing and voluntary.

As for the girlfriend's consent to the seizure of the wastebasket's contents, the court found the testimony established she had common authority over the residence she shared with defendant, notwithstanding that her name was not on the lease. The judge noted that both defendant and his girlfriend, who defendant initially identified to the police as his wife, referred to the apartment as the girlfriend's home in their conversations with the detective and the investigator. The investigator also noticed items associated with the live-in presence of a woman in the apartment and a photo of the girlfriend in the living room of the home. Because defendant was not present and objecting at the time the girlfriend gave her consent, the judge distinguished Georgia v. Randolph, 547 U.S. 103, 121, 126 S. Ct. 1515, 1527-28, 164 L. Ed. 2d 208, 226-27 (2006) (holding that a warrantless search of a shared dwelling over the express refusal of consent by a physically present resident cannot be justified). The judge found the investigator advised the girlfriend of her right to refuse consent, and the testimony established she did so voluntarily and without threat or coercion.

Finally, the judge found the girlfriend voluntarily disclosed the bottle of lubricant, desktop computer and pornographic magazines to the police. The judge concluded the testimony established the girlfriend decided on her own and apart from any police involvement to give the items to the police in order to assist in their investigation and thus their seizure could only be considered the result of a voluntary disclosure. The judge also found the girlfriend's consent to the seizure of the items was knowing and voluntary for the same reasons supporting the seizure of the wastebasket's contents.

On appeal, defendant makes the following arguments in support of his contention that the judge erred in denying his motion to suppress the evidence

POINT I

BECAUSE THE STATE FAILED TO PROVE BY CLEAR AND POSITIVE TESTIMONY THAT REBARDO KNOWINGLY AND VOUNTARILY CONSENTED TO THE SEIZURE OF HIS LAPTOP OR THAT [DEFENDANT'S GIRLFRIEND] HAD THE AUTHORITY TO GIVE EFFECTIVE CONSENT TO SEIZE REBARDO'S PROPERTY, THE SEIZURE OF ITEMS FROM REBARDO'S HOME WAS UNCONSTITUTIONAL, AND THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

A. The testimony failed to establish that Rebardo voluntarily consented to the seizure of his laptop computer.

B. The testimony failed to establish that the detectives had a reasonable basis to believe that [defendant's girlfriend] possessed common authority over Rebardo's home and was authorized to give valid consent to the seizure of items within it.

We reject these arguments and conclude that all of the evidence was properly admissible.

Our standard of review on a motion to suppress is limited. We must defer to the trial court's factual findings on the motion, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention and correction. State v. Elders, 192 N.J. 224, 245 (2007). Our deference is based on an acknowledgment that "'findings of the trial [court] . . . are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case which a reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146 (1964)). Our review of the trial court's application of the law to the facts, where the trial court enjoys no similar advantage, is plenary. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999). Applying those standards here, we have no hesitation affirming the judge's decision to deny defendant's motion to suppress.

Where the State relies on consent to justify a search or seizure under the Fourth and Fourteenth Amendments, the State must prove consent was voluntarily given, but need not prove the subject knew of his right to refuse. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 2059, 36 L. Ed. 2d 854, 875 (1973). Under Article I, Paragraph 7 of the New Jersey Constitution, however, the State must prove defendant had knowledge of the right to refuse, State v. Domicz, 188 N.J. 285, 307 (2006); see also State v. Johnson, 68 N.J. 349, 353-54 (1975), although there is no affirmative obligation on the part of the police to inform a suspect of that right. State v. Farmer, 366 N.J. Super. 307, 314 (App. Div.), certif. denied, 180 N.J. 456 (2004).

We turn first to defendant's laptop. Although there is certainly sufficient evidence in the record to support the judge's finding that defendant was aware of his right to refuse the surrender of his laptop, as far as we can tell, nothing came of the seizure. The investigator testified the police were well aware they would need a search warrant "to open it and turn it on," but no testimony was elicited that the police ever secured a warrant or searched the laptop, or that possession of the laptop furthered the investigation in some way. As the police never "exploit[ed the seizure] to defendant's detriment," we fail to see that there was anything to suppress with regard to the laptop. See Domicz, supra, 188 N.J. at 296-97. To the extent there was anything to suppress, we agree with the trial court that suppression was not appropriate because the evidence supported defendant's voluntary consent to the seizure of the laptop.

We likewise agree that the trial court properly refused to suppress the contents of the wastebasket defendant's girlfriend gave over to the police after defendant had earlier refused to do so, as well as the additional items she later turned over to the authorities. After the trial court decided this motion, the United States Supreme Court reaffirmed in Fernandez v. California, 571 U.S. ___, 134 S. Ct. 1126, 1129, 188 L. Ed. 2d 25, 30 (2014), that "police officers may search jointly occupied premises if one of the occupants consents." (Footnote defining "occupant" as one having common authority over premises within the meaning of United States v. Matlock, 415 U.S. 164, 171, n.7, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974), omitted.)

In Fernandez, the defendant refused to consent to a protective sweep of his home when police appeared at his door after hearing "sounds of screaming and fighting" within. Id. at 1130, 188 L. Ed. 2d at 31. He was arrested on suspicion he had assaulted his girlfriend, who also appeared to be living there. Ibid. After the police arrested the defendant and took him to the police station, the girlfriend gave consent to search the apartment. Ibid. The Court held the girlfriend's consent was valid as against the defendant, refusing to extend Randolph beyond those situations in which the objecting occupant is physically present. Id. at 1129-30, 188 L. Ed. 2d at 30. Specifically, the Court held 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." Id. at 1134, 188 L. Ed. 2d at 35. Our own Supreme Court has since applied Fernandez in a case upholding a homeowner's consent to search over an absent co-tenant's objection, likewise declining to extend Randolph's reach in New Jersey. See State v. Lamb, 218 N.J. 300, 305 (2014).

This case is factually similar to Fernandez. These new cases leave no doubt as to the correctness of the trial court's holding that defendant's girlfriend could lawfully consent to the seizure of the contents of the wastebasket, notwithstanding defendant's earlier refusal to do so, as well as to the lubricant, desktop computer and the magazines she subsequently surrendered3 so long as the police reasonably concluded she had common authority over the premises. See Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S. Ct. 2793, 2800, 111 L. Ed. 2d 148, 160 (1990); State v. Suazo, 133 N.J. 315, 320 (1993). Given defendant's repeated references to his "wife," his concern that she would be returning to an empty house, the investigator's observation of items suggesting the girlfriend lived in the home, and that she let herself into the apartment in the company of the investigator after defendant's arrest, we conclude there was ample testimony in the record to support the judge's finding that defendant's girlfriend exercised common authority over defendant's apartment.

Having reviewed the record and considered defendant's arguments in light of applicable law, we agree with the trial court which denied his motion to suppress evidence and thus affirm his conviction based on the entry of his guilty plea.

Affirmed.

1 As part of his negotiated plea, defendant agreed to waive his right of appeal. That waiver is not relevant here as its only effect would be to allow the prosecutor to rescind the plea agreement, which the prosecutor obviously chose not to do. See State v. Sainz, 107 N.J. 283, 294 n.6 (1987).

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

3 There may well be a question as to whether these subsequently surrendered items were even the subject of a search or seizure under the Fourth Amendment as the girlfriend brought the items to the police absent any request. See State v. Wright, 221 N.J. 456, 468-71 (2015) (discussing private search doctrine). Because neither party has addressed this issue, we do not consider it further.