STATE OF NEW JERSEY VS. TYRONE K. LARKINS (17-02-0578, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-1737-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYRONE K. LARKINS, a/k/a
TYRONE Q. LARKINS,
Defendant-Appellant.
___________________________
Submitted December 10, 2018 – Decided December 26, 2018
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 17-02-0578.
Joseph E. Krakora, Public Defender, attorney for
appellant (Rebecca L. Gindi, Assistant Deputy Public
Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Tyrone K. Larkins appeals the trial court's denial of his motion
to suppress a handgun officers seized from a bedroom closet in his girlfriend's
apartment after arresting him there for parole violations. For the reasons that
follow, we affirm the ruling in part but remand the case – with the State's
acquiescence – to develop the record further concerning additional issues that
bear upon the legality of the gun's seizure.
The search took place on the morning of December 16, 2016, when six
parole officers went to the girlfriend's apartment building in Orange. The
officers were looking for defendant, having a warrant for his arrest issued by the
Parole Board. The officers encountered the girlfriend leaving the building as
she was heading off to work. The officers told her they had come to arrest
defendant. She confirmed he was upstairs in her apartment. The officers asked
the girlfriend if she would be willing to consent to a search of her apartment for
the purpose of apprehending defendant. The girlfriend signed a consent form
authorizing that search, although the timing and voluntariness of that consent
was a key disputed issue.
The girlfriend and the officers went upstairs, and the officers opened the
door to the apartment with keys the girlfriend provided. The officers entered
the unit, found defendant sleeping in a bedroom, and arrested him. One officer
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then went into a closet, allegedly to retrieve a sweatshirt for defendant to wear
outside in the cold. The officer spotted a gun in the closet, and seized it.
The State asserted at the suppression hearing that the officers obtained the
girlfriend's valid consent to enter and search the apartment, as reflected on a
consent form she signed. In response, defendant argued the officers coerced his
girlfriend's consent by making threats to her. Defendant also maintained that
the girlfriend did not sign the form until after the officers had already entered
and searched the premises.
After considering divergent testimony from the girlfriend and from a
senior parole officer who took part in the search, the trial court concluded the
officer's account was more credible. Consequently, the court found the
girlfriend's consent was voluntary, and denied the suppression motion.
Defendant thereafter entered into an agreement with the State and pled
guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).
By doing so, defendant preserved his right under Rule 3:5-7(d) to appeal the
suppression ruling. In accordance with the plea agreement, the trial court
sentenced defendant to a seven-year prison term with a forty-two-month parole
ineligibility period.
On appeal, defendant presents the following arguments in his brief:
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POINT I
THE TRIAL COURT ERRED IN FINDING THAT
THE STATE MET ITS BURDEN OF PROVING
THAT THE SEARCH WAS JUSTIFIED BY [THE
GIRLFRIEND'S] VALID CONSENT. BECAUSE
POLICE EXCEEDED THE SCOPE OF [THE
GIRLFRIEND'S] CONSENT, THE GUN MUST BE
SUPPRESSED.
A. Introduction.
B. The Trial Court's Decision Is Not Legally Correct
Because It Fails To Analyze Whether The Search
Exceeded The Scope Of [The Girlfriend's] Consent.
C. The Record Clearly Illustrates That The Search Far
Exceeded The Scope Of [The Girlfriend's] Consent.
In reviewing the trial court's suppression ruling and the record from the
evidentiary hearing, we afford considerable deference to the court's role as a
fact-finder. Our review of the court's factual findings is "exceedingly narrow."
State v. Locurto, 157 N.J. 463, 470 (1999). We must defer to those factual
findings "so long as those findings are supported by sufficient evidence in the
record." State v. Hubbard, 222 N.J. 249, 262 (2015). As part of that deference,
we particularly respect the court's assessments of credibility, given the court's
ability to have made "observations of the character and demeanor of witnesses
and common human experience that are not transmitted by the record." Locurto,
157 N.J. at 474. However, we owe no deference to the trial judge's conclusions
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of law. See State v. Hinton, 216 N.J. 211, 228 (2013). Nor are we "obliged to
defer to clearly mistaken findings . . . that are not supported by sufficient
credible evidence in the record." State v. Gibson, 218 N.J. 277, 294 (2014).
Applying these well-established standards of review, we affirm the trial
court's finding that the girlfriend, despite her claims of coercion, voluntarily
consented to allowing the officers to enter the apartment and search the premises
for defendant.
The court detailed in its oral opinion ample reasons for finding the senior
parole officer's testimony more credible than the girlfriend's account, including
those witnesses' comparative demeanor and the believability of their narratives.
We will not second-guess those credibility findings. Locurto, 157 N.J. at 474.
Hence, we affirm the court's determination of voluntary consent.
The consent of a third party who has authority over the place being
searched, such as the girlfriend here, satisfies a recognized exception to the
general constitutional requirement for police officers to obtain a search warrant.
See State v. Suazo, 133 N.J. 315, 320 (1993); see also State v. Pante, 325 N.J.
Super. 336, 350 (App. Div. 1999).
That said, defendant has raised an additional concern that requires closer
scrutiny; namely, whether the officers' search exceeded the scope of consent by
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delving into the closet and removing a gun after defendant had already been
arrested.
As the State's brief candidly acknowledges, the arrest warrant and the
consent to search form did not authorize the officers to search "ev ery inch" of
the apartment. Even where consent to search has been voluntarily provided, the
search that is actually conducted may be unconstitutional if the scope of the
consent is exceeded. See Florida v. Jimeno, 500 U.S. 248, 251 (1991); see also
State v. Younger, 305 N.J. Super. 250, 256 (App. Div. 1997).
Here, the scope issue was not developed in the record at the suppression
hearing. At the outset of the hearing, in response to a query from the prosecutor,
the court instructed that the sole focus of the hearing would be restricted to the
disputed validity of the consent to search. When defense counsel later attempted
to cross-examine the testifying officer about a possible deviation from the
permitted scope of the search, the prosecutor objected and the court sustained
the objection.
The parties were not afforded a mutual chance at the hearing to adduce
facts bearing on the scope issue. If that subject had been allowed to be explored,
the State asserts that it would have presented proof, as indicated in the police
report, that one of the officers went into the closet at the request of defendant to
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retrieve a sweatshirt for him as he was getting dressed to go outside. According
to the report, while the officer was doing so, he observed in plain view the butt
of a gun protruding from a shelf, and confiscated it. See State v. Gonzales, 227
N.J. 77, 91-101 (2016) (delineating the current elements of the plain view
doctrine). The officer who discovered the gun did not testify at the hearing and
was not subjected to cross-examination.
In its brief, the State advises it is amenable to a limited remand to develop
in the trial court a "robust" record on these unresolved issues. We agree that
such a remand is appropriate.
We reject defendant's contention that the State has waived the opportunity
to rely on the "plain view" doctrine. The justification closely relates to the scope
issues defendant wanted to explore at the suppression hearing but was not
allowed to develop. Had that exploration occurred, the State surely would have
invoked a plain view justification to counter the defense's claim that the officers
exceeded the bounds of the consent to search.
Among other things, the trial court on remand may consider supplemental
testimony about whether the officer who went into the bedroom closet had a
right to be standing there, whether defendant had indeed requested the officer to
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retrieve a sweatshirt for him, whether the gun on the shelf actually was in plain
view, and other credibility-laden matters.
The remand shall be completed in ninety days, unless both parties agree
to an extension of that deadline. In the meantime, defendant's conviction and
sentence remain unaltered.
If, hypothetically, the trial court determines on remand that the officer's
seizure of the gun from the closet exceeded the scope of the girlfriend's consent
and was not in plain view from a lawful spot, the trial court must afford
defendant an opportunity to move to withdraw his negotiated plea. On the other
hand, if the court concludes that the search of the closet and the seizure of the
gun were lawful, the judgment of conviction will continue in force. Both parties
preserve the right to pursue timely post-remand appellate review.
Affirmed in part, remanded in part. We do not retain jurisdiction.
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