C. Consent
The “touchstone” of the Fourth Amendment is
reasonableness. Katz v. United States, 389 U.S. 347, 360,
88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967). As such, courts
have approved of consensual searches because “it is no
doubt reasonable for the police to conduct a search once
they have been permitted to do so.” Florida v. Jimeno, 500
U.S. 248, 251, 111 S.Ct. 1801, 1804, 114 L.Ed.2d 297
(1991).
A consent to search must be voluntary under the
totality of the circumstances. However, there is no
constitutional requirement that the police have reasonable
suspicion that contraband is present or that criminal
activity is afoot before they seek consent to search. State v.
Abreu, 257 N.J. Super. 549, 555 (App. Div. 1992); State v.
Allen, 254 N.J. Super. 62 (App. Div. 1992). But see State v.
Carty, 332 N.J. Super. 200, 207 (App. Div. 2000), cert,
granted, 165 N.J. 605 (2000) (state constitution requires
that police have reasonable suspicion to believe that
evidence of crime will be uncovered as prerequisite to
seeking consent to search after a valid traffic stop). See also
State v. Rodriguez, 336 N.J. Super. 550 (App. Div. 2001)
(refusing to apply Carty to stop on street).
Under the Fourth Amendment, knowledge of the right
to refuse consent is one factor which may be considered by
the court in determining the validity of the consent.
Schneckloth v. Bustamente, 412 U.S. 218, 219, 227, 93 S.Ct.
2041, 2043, 36 L.Ed.2d 854 (1973). Under the New
Jersey constitution, however, the validity to search, even in
a non-custodial situation, is measured in terms of waiver,
i.e., the State has to show that the person involved was
aware of the right to refuse to consent, State v. Johnson, 68
N.J. 349, 354 (1975), and was given the opportunity to be
present during the search. State v. Hampton, 333 N.J.
Super. 19 (App. Div. 2000); State v. Santana, 215 N.J.
Super. 63, 72-73 (App. Div. 1987). In a situation where a
defendant initiates contact with the police and adopts a
cooperative posture in the mistaken belief that he can divert
police attention, consent to search may be implied. State v.
Koedatich, 112 N.J. 225, 262-64 (1988), cert. denied, 489
U.S. 1017 (1989); State v. Boud, 240 N.J. Super. 171, 178
(App. Div. 1990). Similarly, where the individual having
authority to consent fully cooperates with the police and
there is no indication that he would not have consented to
the search had he known of the right to refuse, consent is
implied. State v. Brown, 282 N.J. Super. 538, 547-48 (App.
Div. 1995).
Consent may be obtained from a third person who
possesses common authority over the property or from a
third person who the police reasonably believe has
authority to consent. Illinois v. Rodriguez, 497 U.S. 177,
188-89, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990);
State v. Maristany, 133 N.J. 299, 305 (1993). A police
officer’s belief that a third person has authority to consent
does not have to be correct. Rather, the officer only has to
have a reasonable belief that the person consenting has
sufficient control over the property to consent to its being
searched. State v. Crumb, 307 N.J. Super. 204, 243-44
(App. Div. 1997), certif. denied, 153 N.J. 215 (1998).In a vehicle situation, unless there is evidence to the
contrary, a driver has authority to consent to a complete
search of the car, including the trunk and glove
compartment. State v. Maristany, 133 N.J. at 306. The
driver’s apparent authority to consent to a search of the
automobile does not include authority to permit police to
search personal belongings of the passenger(s) unless there
is evidence of joint access or joint control over the
belongings. State v. Suazo, 133 N.J. 315, 321 (1993); State
v. Kelly, 271 N.J. Super. 44, 48-49 (App. Div. 1994), certif.
denied sub nom, State v. Ellis, 137 N.J. 72 (1995)
(reasonable reliance on codefendant’s consent to search
four bags where no identification tags on bags, the
information received by police indicated that both men
involved in transportation of narcotics and drug dog
reacted to all four bags). When the police are on notice that
the driver does not have authority to consent to the search
of the property, they cannot rely on apparent authority.
State v. Suazo, 133 N.J. at 322. Where there is multiple
party control over property, any party in possession has the
right to consent to the search. State v. Santana, 215 N.J.
Super. at 69.A landlord generally does not have authority to
consent to the search of the tenant’s premises. State v.
Coyle, 119 N.J. 194, 215 (1990). Having the right to enter
the premises for limited purposes does not give the
landlord authority to consent to a search of the tenant’s
belongings which are not in plain view. Id. at 217.A parent has the right to consent to the search of a
child’s room or belongings, even an adult child, unless
there is evidence that the child has exclusive control over
the room or property in the parent’s home. State v. Crumb,
307 N.J. Super. at 243-44. A family member or co-tenant
cannot consent to a search of premises or possessions in
which another has or is reasonably believed to have
exclusive control. State v. Younger, 305 N.J. Super. 250,
257 (App. Div. 1997).A search generally is limited by the scope, implied or
expressed, of the consent given and by the object of the