State v. King

• Citation: 9 A.L.R.3d 847,44 N.J. 346,209 A.2d 110
• Decision Date: 12 April 1965
• Docket Number: No. A--82,A--82
• Parties: , 9 A.L.R.3d 847 STATE of New Jersey, Plaintiff-Appellant, v. Dennis George KING, Defendant-Respondent.
• Court: United States State Supreme Court (New Jersey)

Page 346

44 N.J. 346

209 A.2d 110, 9 A.L.R.3d 847

STATE of New Jersey, Plaintiff-Appellant, v. Dennis George KING, Defendant-Respondent.

No. A--82.

Supreme Court of New Jersey.

Argued Feb. 16, 1965.

Decided April 12, 1965.

Solomon Forman, Asst. Pros., for appellant (Augustine A. Repetto, Atlantic County Pros., attorney, Ernest M. Curtis, Atlantic City, of counsel and on the brief).

Gerald Weinstein, Atlantic City, for respondent.

The opinion of the court was delivered by

PROCTOR, J.

A jury found the defendant guilty of robbery (N.J.S. 2A:141--1, N.J.S.A.) while armed (N.J.S. 2A:151--5, N.J.S.A.). On his appeal to the Appellate Division, the conviction was reversed on the ground that certain evidence introduced against him at his trial had been obtained by an unconstitutional search and seizure since his consent to the search had not been voluntarily given. State v. King, 84 N.J.Super. 297, 201 A.2d 758 (1964). This court granted the State's petition for certification. 43 N.J. 266, 203 A.2d 718 (1964).

At about 6:00 P.M. on January 15, 1962, Mrs. Helen Clancy, who had been helping Mrs. Jean Ireland in the latter's dress shop in Atlantic City, left for home. She noticed a man wearing a trench coat and cap standing in the doorway next to the shop. A short time later as Mrs. Ireland, in leaving for the night, stooped to unlock the front door of the shop to let herself out, a man wearing a trench coat and cap pushed his way into the store, knocking her down. He pointed a gun at her and attempted to force her to the unlighted rear of the store. After struggling with him, she broke away and ran out to the sidewalk, where she fell. He followed and pulled her pocketbook from her arm. As he fled down the street, gun in hand, he went by a passerby, Miss Pearl Hamm. Mrs. Ireland's pocketbook contained $1,020, the shop's receipts for the week.

About 1:30 in the morning of January 17, 1962, the defendant was arrested at 205 Rosemont Place in Atlantic City the apartment of Mrs. Alice Ford with whom he was living. The apartment was searched by the two arresting officers, who found a trench coat, a cap, and a gun.

At the trial, Mrs. Ireland, Mrs. Clancy, and Miss Hamm all identified the defendant as the perpetrator of the robbery. Mrs. Ireland and Miss Hamm both identified the trench coat, cap, and gun obtained from the apartment where the defendant was arrested as similar to those used by the robber.

Prior to the trial, the defendant made a motion to suppress the gun, the cap, and the coat as fruits of an illegal search and seizure. Pursuant to R.R. 3:2A--6, a preliminary hearing was held before the trial judge. The defendant and Mrs. Ford testified in support of the motion. The two police officers who had arrested the defendant and searched the apartment, Patrolman William Shepperson and his uncle, Detective Robert Shepperson, testified on behalf of the State.

The defendant testified that early in the evening of January 16, while in a cocktail lounge near his home, he had a conversation with Patrolman Shepperson. A man came in and remarked that the newspaper contained a description of the dress shop robber which fitted the defendant. Then Patrolman Shepperson turned to the defendant and said, 'Yes, Dennis you fit the description. Let me see your hand.' The defendant showed the patrolman his hand but nothing more was said. After stopping at another place the defendant returned to his apartment at about 12:30 A.M. on the morning of January 17. About an hour later, Patrolman Shepperson rang the doorbell and told him that the police wanted to ask him questions at City Hall. He accompanied the partrolman to an automobile outside. Detective Shepperson was sitting in the front seat, and the defendant got into the back seat. Patrolman Shepperson got into the driver's seat. As the car headed towards City Hall, Detective Shepperson accused the defendant of committing the robbery. He asked him where the money and pocketbook were and said that if he did not tell him, they would return and search the apartment. The defendant replied, 'I can't tell you where the money is,' and denied committing the robbery. Patrolman Shepperson turned the car around. Nothing was said while they drove back to the apartment. The defendant used his own key to let the police officers into the apartment and called to Mrs. Ford, who was in the bedroom. The defendant said that the police officers never asked his permission to search the apartment, nor did they ask Mrs. Ford's permission. He said that he knew both Sheppersons and that he recognized them as police officers even though they were not in uniform at the time of the arrest and search.

Mrs. Alice Ford, in her testimony, said that she leased the apartment and the defendant moved in during March of 1959. On the morning of January 17 she heard Patrolman Shepperson come for the defendant and tell him that the police wanted to talk with him. She saw the defendant leave with the patrolman and return in about 20 minutes with the patrolman and Detective Shepperson. She testified that the policemen did not ask her permission to search but that she had offered no protest to the search.

Patrolman William Shepperson testified that he had seen the defendant on the evening of January 16 at the cocktail lounge. Later that evening Detective Shepperson told him that he wanted to pick up the defendant for questioning. At about 1:30 A.M. on January 17, they went to the apartment at 205 Rosemont Place. The patrolman rang the bell and when the defendant answered, he asked the defendant to get dressed to go to City Hall. He and the defendant went to the car which was parked at the rear of the building, where Detective Shepperson waited. He got into the front seat of the car and started the engine, and the defendant also got into the car. Detective Shepperson asked the defendant about the robbery but he denied committing it. Then the detective asked him if they could search the apartment and he said, 'all right.' They got out of the car, which had remained parked, and the defendant let the police officers into the apartment by unlocking the door. Detective Shepperson asked Mrs. Ford for permission to search the apartment and she stated that she didn't care. The officers then found the gun, cap, and trench coat while searching the bedroom. The cap and the trench coat were found in the bedroom closet. The gun, which was loaded, was found wrapped in a plastic bag under a pile of clothing stuffed up on he closet shelf.

Detective Robert Shepperson testified that while he, the patrolman and the defendant were in the car outside the apartment house, he asked about the robbery and he defendant denied committing it; he then asked if it was all right to search the apartment and the defendant replied 'yes'. The officers and the defendant then got out of the car and the defendant let them into the apartment with his key. Detective Shepperson said that he knew from his prior investigation that the lease to the apartment was in Mrs. Ford's name and that therefore he asked for her permission to search, which she gave. The detective also testified that on the night of the robbery he had received information that the defendant was seen running from the scene of the crime with a bundle under his overcoat, and that prior to arresting the defendant Mrs. Ireland had identified the defendant as the robber from a picture shown to her. He also testified that he had not attempted to obtain an arrest or a search warrant prior to the defendant's arrest.

The trial judge resolved the factual issue in favor of the State, determining that the search was made pursuant to consent given by the defendant and Mrs. Ford. On the defendant's appeal, the Appellate Division in reversing his conviction held that the State had failed to prove that the defendant's consent to the search had been voluntarily given. It said:

'We conclude that the testimony of the police officer and detective, even though accepted as true, did not warrant a finding that defendant's consent was freely given. At the time defendant said 'all right' or 'yes' he was alone with two officers at about one-thirty in the morning, and was sitting in a police car parked in the rear of the apartment premises. He was under arrest, in custody and charged with the commission of a serious crime. Such an atmosphere is more conductive to a yielding to police authority than to the free and intelligent waiver by defendant of his constitutional rights.' 84 N.J.Super., at p. 302, 201 A.2d at p. 761.

I

The primary question on this appeal is whether the defendant voluntarily gave his consent to the search of the apartment. The general principles of law which govern this issue are well settled. When an accused consents to a search of his premises, he relinquishes the Fourth Amendment protection which prohibits unreasonable searches and seizures. United States v. Smith, 308 F.2d 657, 663 (2 Cir. 1962), cert. denied 372 U.S. 906, 83 S.Ct. 717, 9 L.Ed.2d 716 (1963). Implicit in the very nature of the term 'consent' is the requirement of voluntariness. To be voluntary the consent must be 'unequivocal and specific' and 'freely and intelligently given.' Judd v. United States, 89 U.S.App.D.C. 64, 66, 190 F.2d 649, 651 (D.C.Cir. 1951). The burden of proof is on the State to establish by clear and positive testimony that the consent was so given. Ibid. However, application of these general principles on a case by case basis has often been difficult. There have evolved a number of factors which courts have weighed in determining whether acquiescence to a search has been voluntarily given.

Among those factors which courts have considered as tending to show that the consent was coerced are: (1) that consent was made by an individual already arrested, see Channel v. United States, 285 F.2d 217 (9 Cir. 1960); (2) that consent was obtained despite a denial of guilt, see Higgins v. United States, 93...