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New Jersey Supreme Court Reaffirms Right To Privacy and the Extent of Third-Party Consent, Part 1

In a recent unanimous ruling in State v. Cushing, the New Jersey Supreme Court said the daughter of an elderly Bridgewater woman did not have the power to allow the police to search the bedroom of her adult nephew, who had lived in the house for over twenty years. The State would not be permitted to use the evidence it obtained to prosecute the defendant, Michael Cushing, after finding 16 marijuana plants growing in his bedroom closet, unless it had a separate justification for obtaining the warrant.

The court’s ruling protects a defendant’s room inside a house from police search and seizure without a warrant or the proper consent. In reaching its decision, the Court also reaffirmed a person’s right to privacy and freedom from having their belongings searched if consent to search the bag is given by a third-party, but the consent is improper, as defined by State v. Suazo.

State v. Cushing – Facts

Under the facts of Cushing, Lisa Mylroie called police to have the defendant, her nephew, removed from the home of her 85-year-old mother, Betty Cushing. While in the home, Ms. Mylroie had found marijuana plants in defendant’s bedroom closet. Ms. Cushing was not at home when police arrived. Ms. Mylroie invited the responding officer inside and led the officer to defendant’s bedroom where the marijuana was. She also told the officer she had power of attorney over her mother’s household affairs.

After seeing the bedroom, the responding officer called to obtain a search warrant while another officer arrived and Ms. Cushing returned home. The second officer asked Ms. Cushing for consent to search the home. She agreed that the officer could search all of the home, except her grandson’s room. In executing the search warrant, police seized from defendant’s bedroom sixteen marijuana plants, several five-gallon buckets used to hold the plants, ventilation units, and drug paraphernalia.

State v. Cushing and the Freedom From Impermissible Search and Seizure

Under our State Constitution, police typically do not need a search warrant to search a home if a third party gives consent for the officer’s to search the home, so long as the officer objectively and reasonably believed that the person had authority to give consent at the time of the search.

Here, the Supreme Court held that the officer had no objectively reasonable belief that the defendant’s sister had the authority to allow the police to search the defendant’s bedroom, because the responding officer never asked for proof of the power of attorney, never inquired exactly where Ms. Cushing was or whether she could return or speak telephonically. The officer also did now know about defendant’s, or Ms. Cushing’s, expectations about privacy with regard to the defendant’s bedroom. All of these facts supported the court’s holding that defendant’s aunt did not have authority to give consent to search the home.

Furthermore, the Court found defendant Cushing had a reasonable expectation that his bedroom would not be searched without his consent, absent probable cause, since he was an adult and had lived in the room for at least 20 years. He was neither a minor child, nor a tenant as he was not paying rent. Cushing protects the expectation of privacy for adults living in their parents’ homes, noting that the living arrangement is becoming more commonplace.

The Supreme Court sent the case back to the trial court for further hearing. If the court determines that the police did not have a separate justification for the warrant and search conducted in the case, the evidence against defendant Cushing could be thrown out under the exclusionary rule which prohibits the use of illegally obtained evidence in a criminal trial.

New Jersey Criminal Defense Lawyer Tom Chaves Protects Defendants’ Rights

If you are arrested or charged with a crime in New Jersey, you are entitled to certain rights under State and Federal laws, including the New Jersey Constitution. Experienced New Jersey Criminal lawyer Tom Chaves will help you fight for those rights and always strives to have your charges dismissed completely. If the charges against you cannot be dismissed, we will fight to have them downgraded. An experienced criminal attorney can significantly improve your chances of avoiding a conviction. For a free consultation, call us at 908-256-3039 or contact us online today. We represent individuals with criminal charges in Somerset County, Hunterdon County, Middlesex County and Union County.

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