STATE OF NEW JERSEY VS. RON D. SANDERS (13-12-1011, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1699-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RON D. SANDERS, a/k/a
TRYSHAWN RACCO, DESMOND
MADISON, DESMOND MASISON,
DARELL NELSON, ZYRON
NELSON, JASMIRE NELSON,
DYRELL OVERTON, ROGEA
OVERTON, DESMOND PARHAM,
TARIQ PARHAM, RON SANDER,
TRISHAWN SANDERS, and ZYRON
SANDERS,
Defendant-Appellant.
____________________________
Submitted October 22, 2019 – Decided October 29, 2019
Before Judges Fisher and Accurso.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 13-12-1011.
Joseph E. Krakora, Public Defender, attorney for
appellant (Rochelle Mareka Amelia Watson, Deputy
Public Defender II, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Adam David Klein, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
We are asked in this appeal to consider the constitutionality of a search of
a residence when only one of two occupants consents. In such instances,
constitutional benchmarks have been established. In Georgia v. Rudolph, 547
U.S. 103, 121 (2006), the Court held 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 a later case, the Court determined
that a lawfully arrested and detained co-occupant stands in the same place as an
absent occupant. Fernandez v. California, 571 U.S. 292, 303 (2014).1 Guided
by these principles, we examine whether police were obligated to seek the
1
Our Supreme Court, in State v. Coles, 218 N.J. 322, 338 (2014), restated these
principles, concluding that "when faced with the circumstances of a present and
objecting co-occupant, it is objectively unreasonable for police to rely on the
consenting occupant." The Court then also held that "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." Id. at 340.
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consent of defendant, who was arrested and detained but physically nearby; we
also consider whether defendant actually objected to the search.
This is not the first time we have reviewed the denial of defendant's
motion to suppress evidence seized from a residence he shared with M.P. In an
earlier appeal, we expressed uncertainty about the trial judge's determination
that M.P.'s consent was sufficient "because of the lack of findings about the
impact of the principles outlined" in Randolph and Coles and, so, we remanded
"for further findings." State v. Sanders, No. A-2431-16 (App. Div. Mar. 16,
2018) (slip op. at 2). In expounding on the information critical to the
determination, we stated that the record largely revealed only that defendant was
arrested and seated in a police car outside his apartment building – apparently
at the same time police requested and obtained M.P.'s consent to search. The
record did "not reveal whether defendant was asked for consent or given an
opportunity to object," nor "whether defendant actually objected" from his
nearby location. Id. at 5.
Following our remand, the trial judge heard the testimony of both the
arresting officer and defendant. The judge found the officer credible when he
testified that defendant was arrested outside the apartment and seated in a patrol
car when consent was sought from M.P.; it was also confirmed that the police
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did not seek defendant's consent. The judge found as well that defendant was
not credible when he asserted that he objected by telling the police at that time
"not [to] go in [his] apartment."
In light of the constitutional framework described above, we conclude that
the search was lawful without defendant's consent because, having been lawfully
arrested and detained – there being no argument that the arrest or detention was
unlawful – defendant was, for the purpose of securing consent, absent from the
scene. Fernandez, 571 U.S. at 303; Coles, 218 N.J. at 340. Police had no
obligation in this situation to seek defendant's consent. And, based on
credibility findings, the judge determined that defendant did not in fact object
to the search of his residence.
The judge's fact findings, which are entitled to our deference, State v.
Robinson, 200 N.J. 1, 15 (2008), support the conclusion that the police acted
reasonably in these circumstances when seeking only M.P.'s consent to search
the residence. We, thus, affirm the order denying defendant's suppression
motion.
In deciding the earlier appeal, we expressly declined to consider
defendant's argument that the sentence imposed was excessive. Sanders, slip
op. at 2. Following the denial of his suppression motion, defendant entered into
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a plea agreement and pleaded guilty in one indictment to: third-degree
distribution of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-
7; third-degree CDS possession with the intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and -5(b)(3); and second-degree eluding, N.J.S.A. 2C:29-2(b). The
judge sentenced defendant on the first of these convictions to an eight-year
prison term, subject to a forty-two-month period of parole ineligibility, and a
concurrent five-year prison term on the eluding conviction; on the other CDS
conviction, the judge imposed a seven-year prison term, which was ordered to
run consecutively to the eight-year term. Pursuant to the plea agreement, as to
another indictment, defendant also pleaded guilty to third-degree CDS
possession with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), and
on that conviction, the judge imposed a five-year term, concurrent to the
aggregate sentence imposed in the other indictment. In imposing these prison
terms, the judge found aggravating factors three, six, and nine, N.J.S.A. 2C:44-
1(a)(3), (6), (9), and no mitigating factors.
In his appeal, defendant contends that the sentence was excessive because
the judge failed to find and apply mitigating factors that apply when
imprisonment would cause hardship to the defendant or dependents, N.J.S.A.
2C:44-1(b)(11), and when the defendant has substantially cooperated with law
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5
enforcement, N.J.S.A. 2C:44-1(b)(12). We find insufficient merit in defendant's
arguments about his sentence to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
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