                        NOT FOR PUBLICATION WITHOUT THE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-1741-15T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

P.C.,

     Defendant-Appellant.
______________________________

              Submitted January 16, 2018 – Decided July 9, 2018

              Before Judges Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 14-
              10-2429.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Theresa Y. Kyles, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Emily R. Anderson, Deputy
              Attorney General, of counsel and on the
              brief).

PER CURIAM
       Defendant P.C.1 appeals from a November 9, 2015 judgment of

conviction     following   the    entry       of   a   guilty   plea   to   weapons

possession.        In particular, defendant argues the trial court's

denial of his motion to suppress evidence found after police

searched his living areas was error.               Having reviewed defendant's

arguments in light of the record and applicable legal principles,

we affirm.

       We discern the following relevant facts from police testimony

elicited at the motion to suppress.                On April 22, 2014, at around

6:30   p.m.,   a    Maplewood    police       sergeant   and    several     officers

responded to defendant's house in Maplewood.                    Earlier that day,

due to concerns about his mental health, defendant was transported

by police to East Orange General Hospital for crisis intervention.

Soon after, the police received complaints from a family member

that defendant possessed a firearm and had sent text messages

threatening to hurt people.2         The sergeant testified the police

"received a call from one of them and he was concerned about the

safety of his family and of the community[.]"



1
    Because the facts of this case involve issues regarding
defendant's mental health, we use initials to protect his privacy.
2
   For example, the following message was among those provided to
police: "I can't take it anymore. If there's a murder, don't
fucking be surprised, I'm doing my best but these bitches are
killing me."

                                          2                                  A-1741-15T1
     The sergeant arrived at defendant's house and was met at the

door by defendant's aunt and grandfather.   After they spoke at the

door for a while, "the family let [him] in and . . . all agreed

it was best to get the gun out of the house."     The police asked

the family for permission to search for the gun, and while the

aunt was nervous, the grandfather gave permission for the search.

The grandfather represented he was the homeowner, and he lived in

the home with the aunt and defendant.    At some point during the

police presence in the home, a third family member arrived, and

"was kind of aggravated and wanted [the police] to do something[.]"

     The sergeant went upstairs with the aunt and the grandfather

to conduct the search. There were three bedrooms located upstairs,

along with a second kitchen, through which defendant's bedroom was

located.   When the sergeant got to the top of the stairs he could

see into the kitchen and another room behind that, a bedroom.

According to the sergeant the kitchen was "in shambles" with knives

sticking in the walls and holes in the walls.   The family directed

the sergeant to defendant's bedroom, where he observed a book

about improvised explosive devices, as well as knives and other

weapons including an Airsoft, replica weapons that looked like

real guns, brass knuckles, throwing knives, samurai swords, fake

hand grenades, a Taser gun, and bulletproof vests.



                                 3                          A-1741-15T1
     The sergeant called for an additional police unit.     None of

the family objected, and the aunt and the grandfather expressed

agreement that the various implements should be removed from the

house.   The family assisted police in gathering things.

     Additionally, the grandfather informed the police he owned a

shotgun, which defendant possessed.    The shotgun was located, with

ammunition, in a locked gun safe in the upstairs kitchen.         The

grandfather provided police with the keys.     The shotgun had been

altered in an illegal fashion.

     In October 2014, an Essex County Grand Jury returned an

indictment charging defendant with third-degree possession of a

sawed-off shotgun, N.J.S.A. 2C:39-3(b); fourth-degree possession

of a stun gun, N.J.S.A. 2C:39-3(h); fourth-degree possession of a

weapon (two pairs of brass knuckles) under circumstances not

manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d); and

fourth-degree possession of a gravity knife without an explainable

lawful purpose, N.J.S.A. 2C:39-3(e).    Defendant moved to suppress

the seized items.

     Over several days in June 2015, the court conducted a hearing

on defendant's motion to suppress.      At the motion hearing, the

state offered the sergeant's testimony as outlined above.         The

aunt offered a different version of events.       She stated, "[the

police] rang the doorbell and I asked what they wanted . . . I

                                 4                           A-1741-15T1
forgot what they said and I asked for a search warrant.           They did

not show me nothing.     And they just ran upstairs."     She testified

the officers did not ask for consent to search the house, did not

show her a warrant, told her to remain downstairs, did not allow

her upstairs, and ransacked the upstairs of the home, breaking

things.

     Defendant   lived   in   the   upstairs   bedroom,   and    the   aunt

initially stated defendant paid rent and was the sole user of the

upstairs kitchen and the attached bedroom, but the occupants of

the home had to walk past the kitchen to get downstairs, and would

enter the area every so often.

     The grandfather testified that when the police came to the

house on the day in question, they "came through the front door

straight up, straight in."    They did not ask for consent to search

the home, and did not give him any forms to sign.               He said he

followed the police upstairs and was told to go back downstairs.

     The grandfather testified defendant paid rent, and lived

upstairs in an area that was not open to everyone else in the home

but he would go upstairs into defendant's living area sometimes

to visit.   The gun located in the safe belonged to him, and he

testified he did not provide police with the key.           He denied a

third family member was present in the home during the search,



                                    5                              A-1741-15T1
asserted he did not ask the police to remove any items, and did

not know these items were present in his home.

     The trial judge denied defendant's motion to suppress.         He

found the sergeant to be a credible witness.       In contrast, the

judge found the testimony of the aunt and the grandfather not

credible.    The trial judge noted their stories were aligned with

one another's, how they were largely different than the sergeant's,

and were biased by not wanting defendant to get in more trouble

than he already was.      He found it illogical that the sergeant

ignored the aunt's questions and went into this private home

without a warrant and the police just did what they felt they

needed to do.    The judge stated,

            there was a valid exception here to the
            warrant requirement that the police . . . were
            performing an important community caretaking
            responsibility . . . by removing the weapons
            in the home for the protection of the . . .
            family . . . the urgency was that there was
            no telling when [defendant] was gonna be
            returning[.]

     Further, the judge made findings on the issue of consent.      He

stated, "there was no evidence [the sergeant] advised the family

. . . that they had a right to refuse."   However, "consent was not

affected by the failure of the police to specifically inform the

person that they had a right to refuse consent or inspection,




                                  6                          A-1741-15T1
where there was no indication that he would have declined [to

consent] had he been informed of that right."

       On September 25, 2015, defendant pled guilty to all four

charges of the indictment.             In return for the plea, the State

downgraded the third-degree possession of the sawed-off shotgun

to a fourth-degree regulatory violation of N.J.S.A. 2C:39-10(a).

The    State    recommended     a   sentence   of    non-custodial     probation

conditioned upon the defendant's continued participation in mental

health counseling, alcohol counseling, random drug testing, and

maintained employment.

       On    November     9,   2015,   the   judge   sentenced   defendant      in

accordance with the plea agreement, finding mitigating factor ten,

and aggravating factor nine, and that these were in equipoise.                  On

each count, defendant was sentenced to a three-year probationary

term,   running    concurrently,        conditioned    upon    him   maintaining

employment, continuing with mental health counseling, continuing

with    AA    meetings,    forfeiting    all   weapons    seized,     performing

seventy-five hours of community service, and submitting to drug

and    alcohol    testing.       Appropriate    fines    and   penalties      were

assessed.

       This    appeal   followed.       On   appeal,    defendant    raises   the

following issues:



                                         7                               A-1741-15T1
          POINT I. THE COURT ERRED IN HOLDING THAT THE
          WARRANTLESS SEARCH OF [P.C.'s] ROOMS FELL
          WITHIN THE COMMUNITY-CARETAKING AND CONSENT-
          TO-SEARCH    EXCEPTIONS  TO    THE   WARRANT
          REQUIREMENT.

               A. THE COMMUNITY CARETAKING DOCTRINE,
               WHICH IS SUBSUMED WITHIN THE EMERGENCY-
               AID DOCTRINE, DID NOT JUSTIFY THE ENTRY
               INTO AND SEARCH OF [P.C.'s] ROOMS.

               B. THE CONSENT-TO-SEARCH EXCEPTION TO THE
               WARRANT REQUIREMENT DID NOT APPLY TO THE
               ENTRY INTO AND SEARCH OF [P.C.'s] ROOMS
               WHERE NEITHER HIS GRANDFATHER NOR HIS
               AUNT HAD ACTUAL OR APPARENT AUTHORITY TO
               CONSENT TO A SEARCH OF THAT AREA.

                                I.

     When we review a grant or denial of a motion to suppress we

defer to the factual findings of the trial court if those findings

are supported by sufficient evidence in the record.        State v.

Hubbard, 222 N.J. 249, 262 (2015) (citation omitted).      We defer

to a trial judge's factual findings because these findings "are

often influenced by matters such as observations of the character

and demeanor of witnesses and common human experience that are not

transmitted by the record."   State v. Locurto, 157 N.J. 463, 474

(1999) (citations omitted).   These factual findings should only

be disturbed if they are "so clearly mistaken that the interests

of justice demand intervention and correction."   State v. Gamble,

218 N.J. 412, 425 (2014) (quoting State v. Elders, 192 N.J. 224,

244 (2007)); Hubbard, 222 N.J. at 262.   This applies as well to


                                8                           A-1741-15T1
credibility findings by the trial judge.                 Locurto, 157 N.J. at

470; State v. Barone, 147 N.J. 599, 615 (1998).                   However, the

trial court's legal interpretations will be reviewed de novo.

Hubbard, 222 N.J. at 263.

     The   United    States   and    New    Jersey       Constitution   protect

individuals against unreasonable searches and seizures.                     U.S.

Const., amend IV; N.J. Const., art. I, ¶ 7.              "Warrantless seizures

and searches are presumptively invalid as contrary to the United

States and the New Jersey Constitutions."            State v. Pineiro, 181

N.J. 13, 19 (2004) (citation omitted).

     To overcome this presumption, the State must show the search

falls within one of the well-recognized exceptions to the warrant

requirement.    State v. Maryland, 167 N.J. 471, 482 (2001) (citing

Schneckloth    v.   Bustamonte,     412    U.S.   218,    219   (1973)).     The

community-caretaking doctrine is such an exception when animated

by exigent circumstances.         State v. Edmonds, 211 N.J. 117, 141

(2012) (citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973)).

Consent is another.     Bustamonte, 412 U.S. at 219; State v. Lamb,

218 N.J. 300, 315 (2014).

                                     II.

     Defendant argues the trial court's reliance on the community-

caretaking doctrine was in error, as this doctrine has been

subsumed within the emergency-aid doctrine.               He asserts there was

                                      9                                 A-1741-15T1
no genuine and imminent danger to the safety or welfare of another

to justify the warrantless search under this exception.

     Under the community-caretaking doctrine, police act "not in

their law enforcement or criminal investigatory role," but rather

in "a wide range of social services, such as aiding those in danger

of harm, preserving property, and creat[ing] and maintain[ing] a

feeling of security in the community."   State v. Bogan, 200 N.J.

61, 73 (2009) (citations omitted); Edmonds, 211 N.J. at 141.     Our

Supreme Court has held that the community-caretaking doctrine,

standing alone and without additional exigency or consent, is

insufficient to allow a warrantless search of a home.     State v.

Wright, 221 N.J. 456, 468 (2015) (citing State v. Vargas, 213 N.J.

301, 325 (2013)).    Thus the community-caretaking doctrine has

merged, to some extent, with the emergency-aid doctrine.         See

State v. Mordente, 444 N.J. Super. 393, 397-98 (2016).

     Under the emergency-aid doctrine, a warrantless search is

permitted when two requirements are met: (1) the existence of an

emergency, viewed objectively; and (2) "a reasonable nexus between

the search and the emergency."   Edmonds, 211 N.J. at 132 (quoting

State v. Frankel, 179 N.J. 586, 600 (2004)).

     Under the first element, "the test is whether the evidence

would have led a 'prudent and reasonable officer' to perceive an

immediate need to take action in order to prevent death or to

                                 10                         A-1741-15T1
protect against serious injury to persons or property."       State v.

Cassidy, 179 N.J. 150, 163 (2004) (quoting 3 Wayne LaFave, Search

& Seizure § 6.6(a) at 391 (1996)).      The officer must only possess

"an objectively reasonable basis to believe--not certitude--that

there is a danger and need for prompt action."       Frankel, 179 N.J.

at 599 (citing Cassidy, 179 N.J. at 161). The actual non-existence

of the perceived danger "does not invalidate the reasonableness

of the decision to act at the time."      Ibid.

     Here, earlier on April 22, 2014, the police transferred

defendant to the hospital under a psychological watch, because the

police and his family "felt he was a danger to himself and others."

Subsequently, the police received "several texts and emails from

family members . . . [defendant] was sending out about hurting

himself and hurting . . . other people."          They also received a

phone call believed to be from a family member who was concerned

about the safety of defendant's family and the community.      Through

these interactions, the police formed the belief defendant owned

weapons.

     Based   on   this   information,    the   police    responded    to

defendant's home.   The sergeant testified "based on the totality

of the circumstances, . . . having seen the emails sent by

[defendant] to the family members.      Knowing the condition he was

in . . . truly felt [defendant] was a danger to the community."

                                11                             A-1741-15T1
The sergeant noted, "the house [was] literally 100 feet from a

school yard", adding to the urgency of the circumstances.   Because

the sergeant did not know when defendant would be able to leave

the hospital and return to the home, he felt it was necessary for

the safety of the public to remove the weapons immediately.

      The trial judge found the sergeant was a credible witness,

and we defer to the judge's credibility determinations.     Locurto,

157 N.J. at 470.    The police formed an objectively reasonable

perception there was an immediate danger defendant could return

home from the hospital, take the alleged weapons, and hurt himself,

someone in his family, or someone in the community.     Whether or

not defendant was in fact about to arrive at the home at any minute

is irrelevant, as long as the police objectively believed it was

so.   See Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir.

1963) ("[A] warrant is not required to break down a door to enter

a burning home to rescue occupants or extinguish a fire, to prevent

a shooting or to bring emergency aid to an injured person.")

      Next, "the scope of the search under the emergency aid

exception is limited to the reasons and objectives that prompted

the search in the first place."     Frankel, 179 N.J. at 599 (2004)

(citing Terry v. Ohio, 392 U.S. 1, 19-20 (1968)).    Here, the only

places searched by police were those belonging to defendant.     They

searched his kitchenette and his bedroom, and did not intrude into

                               12                            A-1741-15T1
other bedrooms or living areas in the home, nor into places where

a gun could not reasonably be found.       Thus, there was a reasonable

nexus between the search and the perceived emergency.

      Based on the foregoing, and in particular the credibility

findings, we can find no basis to say that the trial judge abused

his   discretion    in   determining    that   the    community-caretaking

doctrine applied to permit the warrantless search.

                                  III.

      Defendant further argues that the trial judge erred by finding

that the warrantless search permissible due to the consent given

by the grandfather and the aunt, because the consent was not valid.

Alternatively, he argues that the grandfather and the aunt did not

have actual or apparent authority to consent to the search of

defendant's living areas.

      "[A]ny consent given by an individual to a police officer to

conduct   a   warrantless    search     must   be    given   knowingly   and

voluntarily."      State v. Carty, 170 N.J. 632, 639 (2002); State v.

Elders, 192 N.J. 224, 236 (2007); State v. Domicz, 188 N.J. 285,

307 (2006).     In order for consent to a warrantless search to be

voluntary, the State must show that the person involved knew he

or she "had a choice in the matter."           State v. Johnson, 68 N.J.

349, 354 (1975).      However, the State does not need to prove that

the person was informed of his or her right to refuse consent.

                                   13                               A-1741-15T1
Ibid.; State v. Douglas, 204 N.J. Super. 265, 277 (App. Div. 1985).

Therefore, the question is whether the consent was "the result of

duress or coercion, express or implied."    Lamb, 218 N.J. at 315

(citations omitted).

     The sergeant was at the home at the behest of defendant's

family, he identified himself as police, and was invited inside.

While in the home, the sergeant asked the family for permission

to search for the weapons he perceived to be in the home.        The

aunt and the grandfather granted their permission, and even walked

upstairs with the sergeant to assist in the search.    While it is

undisputed the sergeant did not affirmatively inform the aunt and

the grandfather they could refuse consent, under the totality of

the circumstances, there is no indication that they would have

refused had he done so.   See State v. Brown, 282 N.J. Super. 538,

548 (App. Div. 1995).     The circumstances present here do not

demonstrate the consent was the result of duress or coercion, and

we find no basis to conclude the judge's finding that the sergeant

obtained valid consent from the family was in error or an abuse

of discretion.

     Valid consent to search "may be obtained from one other than

the accused . . . so long as the consenting third party has the

authority to bind the accused."   Douglas, 204 N.J. Super. at 276;

State v. Suazo, 133 N.J. 315, 320 (1993).

                                14                          A-1741-15T1
       "A co-habitant who possesses common authority over or has a

sufficient relationship to the premises or effects sought to be

inspected may voluntarily consent to a lawful search."       Lamb, 218

N.J. at 315 (citing United States v. Matlock, 415 U.S. 164, 171

(1974)).    These third parties may have actual authority to consent

"based on their common use of the space searched."           State v.

Cushing, 226 N.J. 187, 200 (2016) (citing Suazo, 133 N.J. at 319-

20).

       Here, the grandfather gave third-party consent to the search

by the police.     Most importantly, he informed the police he was

the homeowner, and explicitly gave the sergeant permission to

search the kitchenette and bedroom utilized by defendant.           The

sergeant testified his view into the kitchenette and the bedroom

was unobstructed.    Additionally, both the aunt and the grandfather

spent time in defendant's living areas, and defendant would often

use the downstairs kitchen with them.         Furthermore, since the

grandfather testified the gun safe was his, and the shotgun inside

was his for hunting, the consent given to search the safe does not

need to satisfy the third-party test.

       Based on the sergeant's credible testimony, the grandfather,

as     homeowner   with   both   common   authority   and   sufficient

relationship to the premises to be searched, had actual authority

to consent to a search of the rooms and the gun safe.

                                  15                           A-1741-15T1
     Moreover,    even    if   the   grandfather      did   not   have    actual

authority   to   consent,      he   had    apparent   authority.     Apparent

authority "arises when a third party (1) does not possess actual

authority to consent but appears to have such authority and (2)

the law enforcement officer reasonably relied, from an objective

perspective, on that appearance of authority."              Cushing, 226 N.J.

at 199-200 (citing Ill. v. Rodriguez, 497 U.S. 177, 185-89 (1990)).

"The question is 'whether the officer's belief that the third

party had the authority to consent was objectively reasonable in

view of the facts and circumstances known at the time of the

search.'" State v. Coles, 218 N.J. 322, 340 (2014) (quoting Suazo,

133 N.J. at 320).        The sergeant learned at the scene that the

grandfather was the homeowner, who readily agreed to permit him

to conduct a search.

     In light of the facts and circumstances known at the time of

the search, the sergeant's belief the grandfather had actual

authority to consent to the search was objectively reasonable.

     Affirmed.




                                      16                                 A-1741-15T1
