STATE OF NEW JERSEY v. RON D. SANDERS

NOT FOR PUBLICATION WITHOUT THE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 internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2431-16T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

     v.

RON D. SANDERS, a/k/a TRYSHAWN
EACCO, DESMOND MADISON, DESMOND
MASISON, DARELL NELSON, JASMIRE
NELSON, ZYRON NELSON, DYRELL
OVERTON, ROGEA OVERTON, DESMOND
PARHAM, TARIQ PARHAM, RON SANDER,
TRISHAWN SANDERS, and ZYRON SANDERS,

          Defendant-Appellant.
_____________________________________________________

           Submitted March 6, 2018 – Decided March 16, 2018

           Before Judges Fisher and Sumners.

           On appeal from Superior Court of New Jersey,
           Law Division, Union County, Indictment No. 13-
           12-1011.

           Joseph E. Krakora, Public Defender, attorney
           for appellant (Joshua D. Sanders, Assistant
           Deputy Public Defender, of counsel and on the
           letter brief).

           Gurbir S. Grewal, Attorney General, attorney
           for respondent (Adam D. Klein, Deputy Attorney
           General, of counsel and on the brief).
PER CURIAM

     In this appeal, we consider defendant's argument that the

trial court erred in denying his motion to suppress evidence seized

from a residence he shared with M.P., who consented to the search.

The record is unclear about the consent given because of the lack

of findings about the impact of the principles outlined in Georgia

v. Randolph, 
547 U.S. 103 (2006) and State v. Coles, 
218 N.J. 322

(2014).    Consequently,      we   remand    for    further      findings   without

reaching    defendant's       argument   that      the    sentence      imposed   was

excessive.

     The record reveals defendant was charged with a number of

drug offenses and an eluding offense in one indictment, and other

drug offenses in a second indictment. Defendant twice moved for

the suppression of evidence regarding the first indictment; he

succeeded     in      obtaining      suppression          of     an     out-of-court

identification but failed to obtain a bar to the State's use of

evidence seized from his residence. He also succeeded in defeating

the State's motion to permit the admission of evidence under

N.J.R.E.    404(b).    With    the   disposition         of    these   applications,

defendant agreed to plead guilty to three counts of the first

indictment and one count of the second, which we renumber for the

reader's convenience:



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          (1) third-degree possession of a controlled
          dangerous substance (CDS) with intent to
          distribute on or within 1000 feet of school
          property, 
N.J.S.A. 2C:35-7;

          (2) second-degree   eluding,   
N.J.S.A.   2C:29-
          2(b);

          (3) third-degree CDS possession with the
          intent to distribute, 
N.J.S.A. 2C:35-5(b)(3);
          and

          (4) third-degree CDS possession with the
          intent to distribute, 
N.J.S.A. 2C:35-5(b)(3).

The judge sentenced defendant to: an eight-year prison term,

subject to a forty-two-month period of parole ineligibility, on

the renumbered first count; a seven-year term without a parole

ineligibility period on the second; a five-year term with a thirty-

month period of parole ineligibility on the third; and a five-year

term with a thirty-month period of parole ineligibility on the

fourth. All terms were ordered to run concurrently with each other

and with other unrelated sentences, except the judge ordered that

the five-year term on the third count run consecutively to the

eight-year term on the first count. In sum, the judge imposed an

aggregate prison term of thirteen years, subject to a six-year

period of parole ineligibility.

     Defendant appeals, arguing:

          I. THE WARRANTLESS ENTRY AND SEARCH WERE NOT
          JUSTIFIABLE UNDER A THEORY OF THIRD-PARTY
          CONSENT,   THEREBY  VIOLATING  [DEFENDANT'S]


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               RIGHT UNDER U.S. CONST. AMENDS. IV, XIV; N.J.
               CONST. (1947) ART. I, PAR. 7.

               II. [DEFENDANT'S] SENTENCE IS EXCESSIVE,
               UNDULY PUNITIVE, AND MUST BE REDUCED.

We do not reach the argument asserted in Point II because we find

it necessary to remand for further proceedings regarding the

arguments posed in Point I, to which we now turn.

       After arresting defendant, police approached his residence.

At a suppression hearing, testimony was offered that M.P., who

lived there with defendant,1 consented to the search. Armed only

with    this    consent,   police   uncovered   CDS   in   the   residence.

Defendant later moved to suppress that evidence because the State

lacked a search warrant and because – defendant argues – consent

was not freely or constitutionally given.

       With regard to consent searches of the home, the Supreme

Court recognized, in Randolph, 
547 U.S.  at 121, that when "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." In Coles, 
218 N.J. at 338, our Supreme

Court restated this constitutional principle in the following way:

"when faced with the circumstances of a present and objecting co-




1
    Defendant and M.P. also have a child together.

                                      4                             A-2431-16T4
occupant, it is objectively unreasonable for police to rely on the

consenting occupant."

     Both Courts recognized the potential for police interference

with a defendant's ability to object. The Randolph Court held that

"[s]o 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," the search may be deemed

objectively reasonable. Randolph, 
547 U.S.  at 121; see also Coles,


218 N.J. at 339. Later, the Supreme Court of the United States

determined that when an occupant is absent due to a "lawful"

detention or arrest, he stands in the same place as an occupant

who is absent for any other reason. Fernandez v. California, 571

U.S. ___, 
134 S. Ct. 1126, 1135 (2014). Our Supreme Court restated

that principle as upholding another: "police responsibility for

[an] unlawful detention or removal of a tenant who was prevented

from being present at the scene to voice [an] objection to the

search is not equivalent to other neutral circumstances causing

the defendant's absence." Coles, 
218 N.J. at 340.

     Defendant was arrested and seated in a police car outside his

apartment building. The record, however, does not reveal whether

defendant was asked for consent or given an opportunity to object.

Indeed, the record does not reveal whether defendant actually

objected. To be sure, defendant did not make the argument as

                                5                          A-2431-16T4
clearly as he makes it now – at the trial level he mainly asserted

that   M.P.    did    not    freely    or     voluntarily        consent     –   but    the

principles set forth in Randolph and Coles were known at the time

of this suppression hearing in September 2014.2 Moreover, even if,

as the State argues, the Randolph argument was not raised at all

in the trial court, the consent issue that was asserted was so

infused by those principles that simple fairness compels a remand

for further development of the record, including consideration of

whether consent was validly given when defendant, who had a greater

interest in objecting, was present.

       Consequently, we remand for further consideration of the

validity      of    M.P.'s    consent       in    light     of     the    circumstances

surrounding        defendant's      presence      and    his   ability     pursuant       to

Randolph and Coles to withhold consent. In short, the central

issue that was clearly put before the motion judge was whether the

officers'     actions       were    objectively         reasonable       under   all    the

circumstances, and defendant's presence was a circumstance that

may have impacted M.P.'s ability to validly and unilaterally

consent to the search. We remand for the judge's consideration of

the concepts outlined in Randolph and Coles when applied to

defendant's        motion    to    suppress      the    evidence     seized      from   his


2
  Randolph was decided in 2006, and Coles was decided four months
before the suppression hearing.

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residence. Whether further evidence should be elicited, or to what

extent, is left to the motion judge's sound discretion.

     Remanded. We do not retain jurisdiction.




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