State v. Allen

Decision Date14 February 1992
Citation603 A.2d 71,254 N.J.Super. 62
PartiesSTATE of New Jersey, Plaintiff-Appellant, v. Christopher ALLEN and Kenneth McEachin, Defendants-Respondents.
CourtNew Jersey Superior Court — Appellate Division

Paul T. Keonig, Jr., Mercer County Prosecutor, for plaintiff-appellant (Alvin McGowen, Asst. Prosecutor, of counsel and on the letter brief).

Wilfredo Caraballo, Public Defender, for defendants-respondents (Frank E. Farrell, Asst. Deputy Public Defender, for Christopher Allen, on the brief; Francisco Gonzalez, Asst. Public Defender, for Kenneth McEachin).

Before Judges ANTELL, LONG and BAIME.

The opinion of the court was delivered by


By leave granted, the State challenges an order of the trial judge which suppressed evidence obtained during a consent search of the trunk of an automobile, which led to the indictment of defendants Christopher Allen and Kenneth McEachin.

The case arose at approximately 1:40 a.m. on September 20, 1990, when New Jersey State Troopers Frazier and Lazarie stopped a car on the New Jersey Turnpike for exceeding the posted speed limit. The automobile, bearing Virginia license plates, was properly registered to Tawanna Day, a back seat passenger. Two other occupants were in the car--the driver (defendant Christopher Allen) who said his name was Joe Lewis but who had no identification and the front seat passenger, defendant Kenneth McEachin who had proper credentials. The driver, whom Day identified as her boyfriend, "Chris," told the officers he had lost his driver's license in New York City. McEachin identified the driver as his cousin "Joe" whose last name he did not know. According to Trooper Frazier, the driver and passenger gave conflicting versions of how long they had been in New York prior to this trip. A motor vehicle check showed that Joe Lewis was five feet nine inches tall while the driver was six feet five inches tall.

On the basis of all of this information, Trooper Frazier requested Ms. Day to step out of the car and asked if she would consent to the search of the automobile. She was given a consent to search form which was read and explained by Trooper Frazier. After he advised Ms. Day of her right to refuse, she signed it. Trooper Frazier opened the trunk and found a maroon overnight bag. He testified that he asked who owned it and none of the three responded. According to the trooper, after the bag was unzipped and during the search, defendant Allen stated he had found it in New York. Inside was what turned out to be 12.74 grams of cocaine along with a greenish brown powder, glass vials of brown liquid, quinine, and tin foil containing a rock like substance. Allen testified, contrary to the trooper, that he claimed ownership of the bag before the search began.

A black overnight bag was also in the trunk. McEachin acknowledged to the trooper that this bag belonged to him. Without further inquiry, the trooper proceeded to search this bag and retrieved further suspected C.D.S. Defendants Allen and McEachin were then arrested and indicted. This motion followed.

The trial judge granted the motion on one ground--that the circumstance of the case did not justify the request for a consent to search from Ms. Day. More particularly, he stated:

What we have in this case factually is that, as the trooper has testified, he stopped a vehicle on the turnpike exceeding the speed limit. I have no problem with that. I think he further indicated that he asked for a driver's license and registration, and he was not given the driver's license or registration by the driver. He asked for the driver's name and he was given a false name. He asked the passenger, who was another male in the front seat, as to the identity of the driver, and was told that this was his cousin, somebody named Joe, whose last name he didn't know. However, the passenger did properly identify himself. In the back seat we had the owner of the car, and the trooper quite correctly, as was remarked by counsel, that he acted in a way that was the very model of how a trooper should be acting. Courteously and appropriately, he asked for the registration, and it proved out to be the registration of the owner of this particular vehicle. So there was no question about this young lady owning the vehicle.

Then what happened is the trooper asked the parties to apparently step outside, as I understand it, and he asked the owner to come into the back of the--actually, to go to the rear of the car and step into the trooper's car. The trooper then asked her if she would consent to a search. I think that, even though in the confines of the State Police car, she was told she had a right to refuse and I am convinced also that the trooper told her that she could stop the search at any time and she then signed the consent.

The matter that is causing the court some difficulty in this case is, in effect, the initiation of the process of asking for a consent to search. It seems to the court in this case, that there was fibbing, there was a false name given, there was speeding, and there was a Virginia license plate involved. It seems to the court that the totality of the circumstances of this case does not rise to the dignity of where it would precipitate the steps that were taken; namely, to request to have--and I am just judging on this particular case. I am confining it to what we have here where the owner is asked to step into the State Police vehicle and is then asked for a consent.

I find that I don't think that the circumstances in this case warranted or precipitated or had any articulable reason for taking this step other than, I think, a bare suspicion. The fact that the trooper's suspicion was justified because later on it proved that there was a controlled dangerous substance involved here, I don't think that mitigates or covers or provides a basis for requesting a search.

I think we have argued this back and forth, and it is with some, you know, reluctance because I don't have any precedent that considered this particular question that the court is making this ruling on, but, again, I think everybody here is concerned with the rights of the Fourth Amendment which are granted all of our citizens in this country and they must be assiduously protected. I think that it would be inappropriate, as I see it, to permit an erosion, based on the totality of the circumstances here, of that right which is guaranteed under our Fourth Amendment. I think what it would result in is, I think, a significant loss of individual privacy, and I think it would have a detrimental effect as far as the exercise of searches is concerned and I don't think it would be beneficial to the fabric of our society.

I am therefore finding, in effect, that there was no basis for the request for the consent, no articulable reason and the evidence is suppressed.

The State appeals. We reverse and remand.

We begin our analysis with the observation that the State concedes that, at least, as to the trunk and the maroon bag, this is solely a consent case. It is not suggested that absent Day's consent, there was any basis for the trooper to search the trunk or the containers therein. Thus, the viability of Day's consent is our first inquiry. The trial judge held that police cannot request a consent to search without at least a reasonable or articulable suspicion to believe that there is contraband or criminal evidence where the police propose to look. Although we recognize the existence of an out-of-state case standing for that proposition, e.g. Garrett v. Goodwin, 569 F.Supp. 106, 121 (E.D.Ark., W.D.1982), our research reveals that this is an isolated case which has been rejected wherever the issue has been considered. See McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273, 275 (1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1339, 103 L.Ed.2d 809 (1989); Johnson v. State...

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7 cases
  • State v. Friedel
    • United States
    • Indiana Appellate Court
    • August 17, 1999
    ...officer's reliance on driver's consent to search bag was unreasonable even if passenger did not object to search); State v. Allen, 254 N.J.Super. 62, 603 A.2d 71 (1992) (consent to search of vehicle by owner did not extend to suitcase in which she disclaimed ownership interest); State v. Za......
  • Marganet v. State
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    • March 31, 2006
    ...officer's reliance on driver's consent to search bag was unreasonable even if passenger did not object to search); State v. Allen, 254 N.J.Super. 62, 603 A.2d 71 (1992) (consent to search of vehicle by owner did not extend to suitcase in which she disclaimed ownership interest); State v. Ca......
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    • New Jersey Superior Court — Appellate Division
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    ...has or should be reasonably believed to have an exclusive right of control or a right of privacy. See, e.g., State v. Allen, 254 N.J.Super. 62, 67, 603 A.2d 71 (App.Div.1992); State v. Lee, 245 N.J.Super. 441, 447, 586 A.2d 256 (App.Div.1991); State v. Thomas, 224 N.J.Super. 221, 229, 540 A......
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