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Another exception to the search warrant requirement is consent by the person searched or the owner of the property searched. A police officer may ask for permission to search, even if the officer does not hace a reasonable basis to believe the suspect is engaged in any criminal behavior. Florida v. Bostickk, 501 U.S. 429, 435 (1991); State v. Abreu, 257 N.J. Super. at 555; State v. Allen, 254 N.J. Super. at 66.
The New Jersey Supreme Court announced, in State v. Carty, 170 N.J. 632 (2002) that law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing beyond an initial valid motor vehicle stop prior to seeking consent to search from the occupants of the motor vehicle. The Carty rule applies to all cases pending in the trial court and on direct appeal as of June 23, 2000, the day that the Appellate Division, in Carty, issued its opinion, 332 N.J. Super. 200 (App. Div. 2000), which was affirmed by the Supreme Court. State v. Carty, 174 N.J. 351 (2002).
In State v. Elders, 192 N.J. 234, 251 (2007), the New Jersey Supreme Court extended the Carty holding and held that law enforcement officers cannot request consent to search a disabled vehicle on the shoulder of a roadway unless they have reasonable and articulate suspicion or believe that evidence of criminal wrongdoing will be found in the vehicle. However, in State v. Domicz, 188 N.J. 285, 305 (2006), the Court refused to extend to a search of a home Carty’s requirement (in connection with automobile searches) that the law enforcement officer must have reasonable and articulate suspicion of criminal wrongdoing before the officer may request a consent to search.
In order for the consent to be valid, the consent must be voluntary – that is, consent must be free of duress or coercion. Schnekcloth v. Bustamonte, 412 U.S. at 219. In New Jersey, the consent must also be knowing, i.e., the suspect knew he or she had the right to refuse to consent. State v. Maristany, 133 N.J. 299, 305 (1993); State v. Johnson, 68 N.J. 349, 353-54 (1975). However, the officer asking for consent is not required to tell the suspect that he or she may refuse to consent. State v. Johnson, 68 N.J. at 353-354. In determining whether the consent was a result of coercion, factors to consider are whether the 1) defendant was under arrest; 2) defendant previously refused to give consent, 3) defendant denied guilt; 4) consent was given after the officer indicated that he or she had a search warrant, Bumper v. North Carolina, 391 U.S. 543, 548-549 (1968); and 5) search produced evidence which the defendant must have known would be discovered. United States v. Mitchell, 322 U.S. 65, 70 (1944); State v. King, 44 N.J. 346, 252-253 (1965), habeas corpus denied, sub nom. King v. Pinto, 256 F. Supp. 522 (D.N.J. 1966); State v. Hladun, 234 N.J. Super. 518, 522-523 (Law Div. 1989). See also State v. Price, 108 N.J. Super. 272, 283 (Law Div. 1970).
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