STATE OF NEW JERSEY v. TYRONE K. LARKINS, a/k/a TYRONE Q. LARKINS

NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1737-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TYRONE K. LARKINS, a/k/a
TYRONE Q. LARKINS,

     Defendant-Appellant.
___________________________

                   Submitted December 10, 2018 – Decided December 26, 2018

                   Before Judges Sabatino and Haas.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 17-02-0578.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Rebecca L. Gindi, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane C. Schuster, Deputy Attorney
                   General, of counsel and on the brief).

PER CURIAM
      Defendant Tyrone K. Larkins appeals the trial court's denial of his motion

to suppress a handgun officers seized from a bedroom closet in his girlfriend's

apartment after arresting him there for parole violations. For the reasons that

follow, we affirm the ruling in part but remand the case – with the State's

acquiescence – to develop the record further concerning additional issues that

bear upon the legality of the gun's seizure.

      The search took place on the morning of December 16, 2016, when six

parole officers went to the girlfriend's apartment building in Orange.        The

officers were looking for defendant, having a warrant for his arrest issued by the

Parole Board. The officers encountered the girlfriend leaving the building as

she was heading off to work. The officers told her they had come to arrest

defendant. She confirmed he was upstairs in her apartment. The officers asked

the girlfriend if she would be willing to consent to a search of her apartment for

the purpose of apprehending defendant. The girlfriend signed a consent form

authorizing that search, although the timing and voluntariness of that consent

was a key disputed issue.

      The girlfriend and the officers went upstairs, and the officers opened the

door to the apartment with keys the girlfriend provided. The officers entered

the unit, found defendant sleeping in a bedroom, and arrested him. One officer


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then went into a closet, allegedly to retrieve a sweatshirt for defendant to wear

outside in the cold. The officer spotted a gun in the closet, and seized it.

      The State asserted at the suppression hearing that the officers obtained the

girlfriend's valid consent to enter and search the apartment, as reflected on a

consent form she signed. In response, defendant argued the officers coerced his

girlfriend's consent by making threats to her. Defendant also maintained that

the girlfriend did not sign the form until after the officers had already entered

and searched the premises.

      After considering divergent testimony from the girlfriend and from a

senior parole officer who took part in the search, the trial court concluded the

officer's account was more credible.        Consequently, the court found the

girlfriend's consent was voluntary, and denied the suppression motion.

      Defendant thereafter entered into an agreement with the State and pled

guilty to second-degree unlawful possession of a handgun,  N.J.S.A. 2C:39-5(b).

By doing so, defendant preserved his right under Rule 3:5-7(d) to appeal the

suppression ruling. In accordance with the plea agreement, the trial court

sentenced defendant to a seven-year prison term with a forty-two-month parole

ineligibility period.

      On appeal, defendant presents the following arguments in his brief:


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            POINT I

            THE TRIAL COURT ERRED IN FINDING THAT
            THE STATE MET ITS BURDEN OF PROVING
            THAT THE SEARCH WAS JUSTIFIED BY [THE
            GIRLFRIEND'S] VALID CONSENT. BECAUSE
            POLICE EXCEEDED THE SCOPE OF [THE
            GIRLFRIEND'S] CONSENT, THE GUN MUST BE
            SUPPRESSED.

            A. Introduction.

            B. The Trial Court's Decision Is Not Legally Correct
            Because It Fails To Analyze Whether The Search
            Exceeded The Scope Of [The Girlfriend's] Consent.

            C. The Record Clearly Illustrates That The Search Far
            Exceeded The Scope Of [The Girlfriend's] Consent.

      In reviewing the trial court's suppression ruling and the record from the

evidentiary hearing, we afford considerable deference to the court's role as a

fact-finder. Our review of the court's factual findings is "exceedingly narrow."

State v. Locurto,  157 N.J. 463, 470 (1999). We must defer to those factual

findings "so long as those findings are supported by sufficient evidence in the

record." State v. Hubbard,  222 N.J. 249, 262 (2015). As part of that deference,

we particularly respect the court's assessments of credibility, given the court's

ability to have made "observations of the character and demeanor of witnesses

and common human experience that are not transmitted by the record." Locurto,

 157 N.J. at 474. However, we owe no deference to the trial judge's conclusions

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of law. See State v. Hinton,  216 N.J. 211, 228 (2013). Nor are we "obliged to

defer to clearly mistaken findings . . . that are not supported by sufficient

credible evidence in the record." State v. Gibson,  218 N.J. 277, 294 (2014).

      Applying these well-established standards of review, we affirm the trial

court's finding that the girlfriend, despite her claims of coercion, voluntarily

consented to allowing the officers to enter the apartment and search the premises

for defendant.

      The court detailed in its oral opinion ample reasons for finding the senior

parole officer's testimony more credible than the girlfriend's account, including

those witnesses' comparative demeanor and the believability of their narratives.

We will not second-guess those credibility findings. Locurto,  157 N.J. at 474.

Hence, we affirm the court's determination of voluntary consent.

      The consent of a third party who has authority over the place being

searched, such as the girlfriend here, satisfies a recognized exception to the

general constitutional requirement for police officers to obtain a search warrant.

See State v. Suazo,  133 N.J. 315, 320 (1993); see also State v. Pante,  325 N.J.

Super. 336, 350 (App. Div. 1999).

      That said, defendant has raised an additional concern that requires closer

scrutiny; namely, whether the officers' search exceeded the scope of consent by


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delving into the closet and removing a gun after defendant had already been

arrested.

      As the State's brief candidly acknowledges, the arrest warrant and the

consent to search form did not authorize the officers to search "ev ery inch" of

the apartment. Even where consent to search has been voluntarily provided, the

search that is actually conducted may be unconstitutional if the scope of the

consent is exceeded. See Florida v. Jimeno,  500 U.S. 248, 251 (1991); see also

State v. Younger,  305 N.J. Super. 250, 256 (App. Div. 1997).

      Here, the scope issue was not developed in the record at the suppression

hearing. At the outset of the hearing, in response to a query from the prosecutor,

the court instructed that the sole focus of the hearing would be restricted to the

disputed validity of the consent to search. When defense counsel later attempted

to cross-examine the testifying officer about a possible deviation from the

permitted scope of the search, the prosecutor objected and the court sustained

the objection.

      The parties were not afforded a mutual chance at the hearing to adduce

facts bearing on the scope issue. If that subject had been allowed to be explored,

the State asserts that it would have presented proof, as indicated in the police

report, that one of the officers went into the closet at the request of defendant to


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retrieve a sweatshirt for him as he was getting dressed to go outside. According

to the report, while the officer was doing so, he observed in plain view the butt

of a gun protruding from a shelf, and confiscated it. See State v. Gonzales,  227 N.J. 77, 91-101 (2016) (delineating the current elements of the plain view

doctrine). The officer who discovered the gun did not testify at the hearing and

was not subjected to cross-examination.

      In its brief, the State advises it is amenable to a limited remand to develop

in the trial court a "robust" record on these unresolved issues. We agree that

such a remand is appropriate.

      We reject defendant's contention that the State has waived the opportunity

to rely on the "plain view" doctrine. The justification closely relates to the scope

issues defendant wanted to explore at the suppression hearing but was not

allowed to develop. Had that exploration occurred, the State surely would have

invoked a plain view justification to counter the defense's claim that the officers

exceeded the bounds of the consent to search.

      Among other things, the trial court on remand may consider supplemental

testimony about whether the officer who went into the bedroom closet had a

right to be standing there, whether defendant had indeed requested the officer to




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retrieve a sweatshirt for him, whether the gun on the shelf actually was in plain

view, and other credibility-laden matters.

      The remand shall be completed in ninety days, unless both parties agree

to an extension of that deadline. In the meantime, defendant's conviction and

sentence remain unaltered.

      If, hypothetically, the trial court determines on remand that the officer's

seizure of the gun from the closet exceeded the scope of the girlfriend's consent

and was not in plain view from a lawful spot, the trial court must afford

defendant an opportunity to move to withdraw his negotiated plea. On the other

hand, if the court concludes that the search of the closet and the seizure of the

gun were lawful, the judgment of conviction will continue in force. Both parties

preserve the right to pursue timely post-remand appellate review.

      Affirmed in part, remanded in part. We do not retain jurisdiction.




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