                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                   State v. Michael Cushing (A-68-14) (073925)

Argued February 29, 2016 -- Decided August 3, 2016

LaVECCHIA, J., writing for a unanimous Court.

         At issue in this appeal is the validity of a third party’s consent to search an adult household member’s
bedroom. The trial court denied defendant’s motion to suppress the evidence seized as a result of the warrantless
search. The Appellate Division reversed, concluding that the on-the-scene law enforcement officer had not obtained
a valid authorization to enter and inspect items in defendant’s bedroom and interior closet.

          On June 24, 2011, Officer Ziarnowski of the Bridgewater Township Police Department responded to a
telephone call from a person reporting suspected marijuana found in a single-family residence within the township.
Ziarnowski went to the address provided and Lisa Mylroie answered the door and invited him in. She identified
herself as the person who called the police and told the officer that the house belonged to her eighty-five-year-old
mother, Betty Cushing, who was not home at the moment. Mylroie explained to Ziarnowski that she was at the
house that day to remove from the premises her mother’s twenty-six-year-old grandson, Michael Cushing, who had
been living with his grandmother for twenty years. Mylroie told Ziarnowski that she had power of attorney over her
mother’s household affairs. But she did not provide proof of such authority, and Ziarnowski did not ask for it.
Mylroie told Ziarnowski that defendant had failed to pay rent and had moved his girlfriend into his bedroom.
Mylroie’s sister, Charlene Cushing, was also present in the home. Ziarnowski did not question her; however, she is
reported by Ziarnowski to have nodded in agreement during Mylroie’s statements to him.

          Mylroie stated that when she arrived at the house, defendant was not home. She decided to look around
upstairs to see why her mother’s electricity bill, which she paid on her mother’s behalf, was unusually expensive.
Mylroie told Ziarnowski that she entered defendant’s upstairs bedroom and observed a bright light shining from
beneath the door to the room’s interior closet. Mylroie opened the door and saw several plants that she believed to
be marijuana. She then called the police. After Mylroie provided that information, she led Ziarnowski upstairs to
defendant’s bedroom. There, once Mylroie opened the closet door, Ziarnowski saw the plants she had described,
with grow lights above them. He stated that he believed at the time that the plants were marijuana plants.
Ziarnowski said he did not touch or move the plants; instead, he returned downstairs, secured the residence, and
called his supervisor to inform him of the need to apply for a search warrant.

         After Officer Ziarnowski left to obtain a search warrant, Betty Cushing returned home. Another officer
presented her with a consent-to-search form, which she signed to authorize a search of the yard and entire house --
except for defendant’s bedroom. Betty told the officer seeking her consent that she could not consent to search
defendant’s room because it was his room. Approximately an hour later, Officer Ziarnowski returned with a search
warrant. 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. Officers also seized a Ziploc
bag of marijuana that was discovered in a backyard shed.

          On August 31, 2011, defendant was indicted on charges of first-degree maintaining a controlled dangerous
substance (CDS) production facility, second-degree possession of marijuana with intent to distribute ten or more but
less than fifty marijuana plants, second-degree possession of marijuana with intent to distribute within 500 feet of a
public park, third-degree possession of marijuana with intent to distribute within 1000 feet of school property, and
fourth-degree failure to notify law enforcement of a change of employment as required under Megan’s Law.
Defendant filed a motion to suppress the evidence found in his bedroom. The court framed the question as whether
a “non-resident attorney[-]in[-]fact ha[s] the legal authority to consent to a search of premises owned and occupied
by her principal[,]” and whether consent was valid in this instance. The court determined that Mylroie’s power of
attorney granted her that authority and that the police had a reasonable basis to rely on it. After denying defendant’s
motion to suppress, the court sentenced him to an aggregate sentence of ten years’ imprisonment with a forty-month
parole disqualifier.
         Defendant appealed, arguing that Mylroie lacked actual or apparent authority to give consent to enter and
search his bedroom. The Appellate Division agreed and reversed, focusing for the most part on the lack of actual
authority by Betty Cushing to have consented to a search of defendant’s bedroom. The panel concluded that
because Betty Cushing lacked actual authority, Mylroie could not possess derivative authority to consent to the
search.

           The State also advanced before the Appellate Division its alternative basis for sustaining the search under
the independent-source doctrine. However, the panel declined to apply the doctrine in the first instance, noting that
the trial court had not sufficiently addressed the argument. In remanding the matter, the panel ordered the trial court
to address whether the independent-source doctrine applies under the circumstances.

         The Supreme Court granted the State’s petition for certification. 222 N.J. 311 (2015).

HELD: The record contains ample evidence to support the Appellate Division’s conclusion that Betty Cushing did
not have actual authority to consent to the search of defendant’s room, and Betty could not have conferred through
any power of attorney an authority that she did not possess herself. In addition, it was not objectively reasonable for
Officer Ziarnowski to rely on an apparent authority by Mylroie as the basis for valid third-party consent to his initial
search of defendant’s bedroom.

1. The search of a home raises heightened privacy concerns. The United States Supreme Court has recognized,
however, that in certain circumstances a third party -- a person other than the defendant -- can validly consent to a
search of the defendant’s home. Also, in recognition of the many factual settings that confront a law enforcement
agent, an officer may, depending on the circumstances, rely on the apparent authority of a person consenting to a
search. This Court also applies, under the State Constitution, the consent exception to third parties who possess
actual authority based on their common use of the space searched. See State v. Suazo, 133 N.J. 315, 319-20 (1993).
Furthermore, even when the third party does not possess actual authority to consent to a search, this Court has
recognized that evidence seized during such a search need not be suppressed under the State’s constitutional
requirements if 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, supra, 133 N.J. at 320). (pp. 12-15)

2. The question whether an expectation of privacy existed here is easily resolved. Defendant had a clear privacy
expectation in his room, which both he and his grandmother recognized. Authority to consent to search a particular
area of a home turns on common usage, and Betty Cushing’s evident lack of common use of defendant’s bedroom
and her recognition of his exclusive control of that space meant that only defendant possessed the ability to consent
to a search of his bedroom and interior space. The record contains ample evidence to support the Appellate
Division’s conclusion that Betty Cushing did not have actual authority to consent to the search of defendant’s room.
There is no need to address whether Mylroie had actual authority to consent to the search of defendant’s room by
virtue of an asserted power of attorney because Betty could not have conferred through any power of attorney an
authority that she did not possess herself. (pp. 15-18)

3. The standard for determining whether a police officer may rely on a third party’s apparent authority is whether
the officer’s belief at the time was objectively reasonable. That standard is not satisfied in this case based on the
proofs presented at the suppression hearing. Although there is no reason to question the officer’s good faith when
interacting with Mylroie at the house, the Court cannot conclude that the officer’s belief that Mylroie had authority
to consent to entry and inspection of defendant’s bedroom was objectively reasonable. Third parties derive authority
from common and joint use of space. That requirement calls for careful scrutiny when applied to parties who are not
the homeowners yet are purporting to authorize consent to search the bedroom of an adult in the home in which he
resides. Here, the officer failed to ask adequate questions at the scene before he followed Mylroie into defendant’s
room and then peered into his closet. Officer Ziarnowski could not have relied on an apparent authority by Mylroie
as the basis for valid third-party consent to his initial search of defendant’s bedroom. The Court further agrees with
the Appellate Division that this matter requires remand for the trial court to address whether the independent-source
doctrine applies under the circumstances. (pp. 18-21)

         The judgment of the Appellate Division is AFFIRMED.

     CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.
                                                           2
                                      SUPREME COURT OF NEW JERSEY
                                        A-68 September Term 2014
                                                 073925

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

MICHAEL CUSHING,

    Defendant-Respondent.


         Argued February 29, 2016 – Decided August 3, 2016

         On certification to the Superior Court,
         Appellate Division.

         Emily R. Anderson, Deputy Attorney General,
         argued the cause for appellant (John J.
         Hoffman, Acting Attorney General of New
         Jersey, attorney).

         James K. Smith Jr., Assistant Deputy Public
         Defender, argued the cause for respondent
         (Joseph E. Krakora, Public Defender,
         attorney).

         Ronald K. Chen argued the cause for amicus
         curiae American Civil Liberties Union of New
         Jersey (Edward L. Barocas, Legal Director,
         attorney; Mr. Chen, Mr. Barocas, Jeanne M.
         LoCicero and Alexander R. Shalom, of counsel
         and on the brief).


    JUSTICE LaVECCHIA delivered the opinion of the Court.

    At issue in this appeal is the validity of a third party’s

consent to search an adult household member’s bedroom.   The

trial court denied defendant’s motion to suppress the evidence


                                1
seized as a result of the warrantless search; however, the

Appellate Division reversed, concluding that the on-the-scene

law enforcement officer had not obtained a valid authorization

to enter and inspect items in defendant’s bedroom and interior

closet.   We granted the State’s petition for certification and

now affirm the Appellate Division judgment.

                               I.

    Defendant Michael Cushing was indicted on five counts:

first-degree maintaining a controlled dangerous substance (CDS)

production facility, N.J.S.A. 2C:35-4 (count one); second-degree

possession of marijuana with intent to distribute ten or more

but less than fifty marijuana plants, N.J.S.A. 2C:35-5(a)(1) and

2C:35-5(b)(10)(b) (count two); second-degree possession of

marijuana with intent to distribute within 500 feet of a public

park, N.J.S.A. 2C:35-7.1 (count three); third-degree possession

of marijuana with intent to distribute within 1000 feet of

school property, N.J.S.A. 2C:35-7 (count four); and fourth-

degree failure to notify law enforcement of a change of

employment as required under Megan’s Law, N.J.S.A. 2C:7-2(d)(1)

(count five).

    After the trial court conducted a hearing and denied

defendant’s motion to suppress evidence seized from his bedroom

in his grandmother’s home where he resided, defendant negotiated

a plea agreement.   Defendant entered a conditional plea of

                                 2
guilty to counts two through five in exchange for the dismissal

of count one.     The trial court sentenced defendant in accordance

with the plea agreement.     On appeal, the Appellate Division

reversed on the issue of suppression.     Now, at the State’s

request that we review this matter, we summarize the facts

developed in connection with the suppression motion, at which

Officer Michael Ziarnowski testified.

    On June 24, 2011, Officer Ziarnowski of the Bridgewater

Township Police Department responded to a telephone call from a

person reporting suspected marijuana found in a single-family

residence within the township.     According to Ziarnowski, he went

to the address provided and Lisa Mylroie answered the door and

invited him in.    She identified herself as the person who called

the police and told the officer that the house belonged to her

eighty-five-year-old mother, Betty Cushing, who was not home at

the moment.   Mylroie told him that her mother was “at a

neighbor’s house.”     Mylroie’s sister, Charlene Cushing, was also

present in the home.     Ziarnowski did not question her, as far as

the transcript reveals; however, she is reported by Ziarnowski

to have nodded in agreement during Mylroie’s statements to him.

    Mylroie explained to Ziarnowski that she was at the house

that day to remove from the premises her mother’s twenty-six-

year-old grandson, Michael Cushing, who had been living at the

house.   Her mother was not there, as Mylroie explained, because

                                   3
the family thought it best that she not be present when that was

done.   Mylroie told Ziarnowski that she had power of attorney

over her mother’s household affairs.   But she did not provide

proof of such authority, and Ziarnowski did not ask for it.

     According to Ziarnowski, Mylroie told him that defendant,

who had been living with his grandmother for twenty years, had

failed to pay rent, had moved his girlfriend into his bedroom,

and generally did not help around the house.   For those reasons,

Mylroie said Betty Cushing no longer wanted her grandson to live

with her.

     Mylroie’s explanation to Ziarnowski continued.    She stated

that, when she arrived at the house, defendant was not home.

She decided to look around upstairs to see why her mother’s

electricity bill, which she paid on her mother’s behalf, was

unusually expensive.   Mylroie told Ziarnowski that she entered

defendant’s upstairs bedroom and observed a bright light shining

from beneath the door to the room’s interior closet.   Mylroie

opened the door and saw several plants that she believed to be

marijuana.   She then called the police.

     Ziarnowski testified that, after Mylroie provided that

information, she led him upstairs to defendant’s bedroom.     He

followed her up the stairs and, arriving at the corridor of the

upstairs floor, made a sharp right and joined Mylroie inside

defendant’s bedroom.   There, once she opened the closet door, he

                                 4
saw the plants Mylroie had described, with grow lights above

them.   He stated that he believed at the time that the plants

were marijuana plants.     Ziarnowski said he did not touch or move

the plants; instead, he returned downstairs, secured the

residence, and called his supervisor to inform him of the need

to apply for a search warrant.

     After Officer Ziarnowski left to obtain a search warrant,

Betty Cushing returned home.     Another officer, who was on the

backup team that had arrived at the house, presented her with a

consent-to-search form, which she signed to authorize a search

of the yard and entire house -- except for defendant’s bedroom.

According to Ziarnowski’s testimony, Betty told the officer

seeking her consent that she could not consent to search

defendant’s room because it was his room.     Approximately an hour

later, Officer Ziarnowski returned with a search warrant.     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.    Officers also seized a Ziploc bag of marijuana

that was discovered in a backyard shed.

     On August 31, 2011, a Somerset County grand jury indicted

defendant on the five counts previously identified.

     Defendant filed a motion to suppress the evidence found in

his bedroom.     He did not seek suppression of the marijuana found

                                   5
in the backyard shed.   A hearing was conducted and a written

opinion was issued by the trial court.   The court framed the

question as whether a “non-resident attorney[-]in[-]fact ha[s]

the legal authority to consent to a search of premises owned and

occupied by her principal[,]” and whether consent was valid in

this instance.   In denying defendant’s motion to suppress, the

court determined that Mylroie’s power of attorney granted her

“the authority to consent to the entry of the police into

[d]efendant’s bedroom on behalf of [Betty Cushing]” and

“provided the police with a reasonable basis to rely on []

Mylroie’s authority.”   The trial court rejected defendant’s

argument that his relationship to Betty Cushing was that of

landlord-tenant and instead concluded that the relationship was

“that of common family household members.”   According to the

trial court, Officer Ziarnowski had a good faith, reasonable

belief that Mylroie had actual authority to consent, even though

the power of attorney was not produced at any time.

    After denying defendant’s motion to suppress, the court

sentenced defendant, in accordance with the plea agreement, to

an aggregate sentence of ten years’ imprisonment with a forty-

month parole disqualifier.

    Defendant appealed, arguing that Mylroie lacked actual or

apparent authority to give consent to enter and search his

bedroom.   He emphasized that Mylroie’s authority could not rise

                                 6
above the actual authority possessed by Betty Cushing.     The

Appellate Division agreed and reversed in an unpublished

decision, focusing for the most part on the lack of actual

authority by Betty Cushing to have consented to a search of

defendant’s bedroom.

    The panel began by noting its agreement with the trial

court that defendant was not Betty Cushing’s tenant but rather

more like her child.   In that regard, the panel pointed to

facts, as found by the trial court, that supported that

defendant was not in a tenant relationship:    he was twenty-six-

years old, he had lived with his grandmother since he was a

child, and he had never paid rent.     With respect to the familial

relationship between Betty and her grandson, the Appellate

Division noted that Betty herself had declined consent to search

his bedroom, evidencing that she recognized that he had privacy

expectations to that space.   In fact, it was the only space that

she excluded from the areas of her home and yard that she

allowed to be searched pursuant to the consent-to-search form

that she executed at police request.    More critical for the

panel was its conclusion that, based on the record, Betty

Cushing did not have authority to consent to a search of

defendant’s bedroom or, more pointedly, his closet, based on

evidence of common access and usage.    Thus, the panel determined

that Betty did not provide any solid link for finding a valid

                                 7
third-party consent to search defendant’s room and interior

spaces.

     Accordingly, the Appellate Division reversed the trial

court’s denial of the motion to suppress without addressing

whether Mylroie possessed authority to allow the police to view

defendant’s bedroom or closet by virtue of her power of attorney

for her mother.   The panel concluded that because Betty Cushing

lacked actual authority to consent to the search, Mylroie could

not possess derivative authority to consent to the search.

     The State also advanced before the Appellate Division its

alternative basis for sustaining the search under the

independent-source doctrine.   Specifically, the State contended

that Mylroie’s observations alone, conveyed to the responding

officer, constituted sufficient probable cause for the issuance

of a search warrant.   However, the panel declined to apply the

doctrine in the first instance, noting that the trial court had

not sufficiently addressed the argument.   In remanding the

matter, the panel ordered the trial court to address whether the

independent-source doctrine applies under the circumstances.1


1
 The Appellate Division opinion states that “if defendant
prevails and the evidence is suppressed, defendant’s guilty
pleas shall be vacated.” However, as noted, the record
indicates that police recovered a large Ziploc bag of marijuana
from the shed, which Betty Cushing authorized to be searched.
We presume that the Appellate Division did not intend its ruling
to affect evidence that was not sought to be suppressed and that
the trial court correctly noted should not be suppressed.
                                 8
    Unrelated to this appeal, the Appellate Division also

ordered a resentencing of defendant to correct an error

regarding defendant’s eligibility for a statutory mandatory

minimum period of parole ineligibility and for reconsideration

of defendant’s sentence on the second-degree possession with

intent to distribute charge.

    We granted the State’s petition for certification on the

validity of the third-party consent to search.   State v.

Cushing, 222 N.J. 311 (2015).   We also granted amicus curiae

status to the American Civil Liberties Union of New Jersey

(ACLU-NJ).

                                II.

                                A.

    The State maintains that Betty Cushing had actual authority

to consent to the search of defendant’s room, which flowed to

Mylroie through her power of attorney.   The State also contends

that Mylroie had apparent authority as well, on which the police

reasonably relied under the circumstances.

    The State first focuses on why Betty Cushing had the

authority to consent to a search of defendant’s room.     Because

the trial court found, and the appellate panel agreed, that

defendant and Betty Cushing’s relationship was one akin to

parent-child and not landlord-tenant, the State relies on the

line of cases recognizing parents’ ability to authorize searches

                                9
of rooms of children who live with them.   And in such settings,

the State argues that the Appellate Division erred in equating

defendant’s closet to a closed container in which there is a

greater privacy expectation.   According to the State, defendant

did not pay rent and Betty Cushing had the ability to authorize

a search of his bedroom.

    The State relies on the principle that third parties can

give valid consent to search a private dwelling so long as the

party has actual authority to do so.   Because the State believes

that Betty Cushing had authority to consent to a search of

defendant’s room in her home, it contends that Mylroie, as

Betty’s agent, could exercise that same power.   Pointing to

Mylroie’s power of attorney, which included paying the bills and

handling Betty Cushing’s household affairs, the State argues

that Mylroie had actual authority to consent.

    The State also argues, alternatively, that Mylroie had

apparent authority, on which the police reasonably relied at all

times.   Specifically, the State highlights, as reasonable, the

police officer’s belief that Mylroie held a power of attorney

for her mother’s household affairs, as she asserted, because

Mylroie invited Officer Ziarnowski in, was familiar with the

house, and described the familial situation in detail.

Furthermore, Mylroie’s sister -- Betty’s other daughter,

Charlene Cushing -- was also present, adding reasonable

                                10
verification of the information that Mylroie conveyed and on

which the officer relied.

                                  B.

    Defendant primarily argues that Betty Cushing, and

therefore Mylroie, did not have actual authority to consent to a

search of defendant’s bedroom because of the lack of common

authority over the room.    Emphasizing the importance of the lack

of joint access and control, defendant asserts that he had an

undoubted expectation of privacy in his bedroom.    He points to

several facts as evidence of that expectation:     (1) defendant

moved his girlfriend into the bedroom; (2) Betty Cushing told

police that she did not freely go in and out of the bedroom; and

(3) she authorized consent for the entire residence and premises

except for defendant’s bedroom.    Those facts also support the

broader context that defendant emphasizes, namely that he was a

grown, independent adult and not a child.    The totality of the

circumstances, defendant argues, establishes an expectation of

privacy in defendant’s bedroom preventing Betty Cushing from

consenting to its search.   Because Betty Cushing had no actual

authority to consent to the search, she could not confer actual

authority to Mylroie through power of attorney.

    Finally, defendant argues that the State could not provide

a reasonable basis for a belief in Mylroie’s apparent authority.

According to defendant, apparent authority is inapposite in this

                                  11
situation because the doctrine centers on mistaken beliefs about

common residency or ownership.    Here, defendant emphasizes,

there was no mistake about Mylroie’s status.    She promptly told

Officer Ziarnowski that she did not own or stay at the

residence.

                                 C.

    The ACLU-NJ reiterates defendant’s arguments that Mylroie

had neither actual nor apparent authority to authorize a search

of defendant’s room.   The ACLU-NJ also references sociological

considerations in cases of an adult child living with a parent,

noting that there is a growing trend of multigenerational adults

living together and that a large percentage of adult children

currently live with a parent.    The ACLU-NJ argues that members

of that large swath of the population would have their privacy

rights compromised, and therefore their Fourth Amendment rights

implicated, were this Court to grant parents the same ability to

consent to a search of any rooms or spaces used exclusively by

their adult children living with them as may be done for their

minor children.   Failing to make such a distinction would ignore

the different privacy expectations possessed by minor and adult

children, according to the ACLU-NJ.

                                 III.

    The Fourth Amendment of the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution protect

                                 12
against unreasonable searches.    Each guarantees that “[t]he

right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated.”    U.S. Const. amend. IV; N.J. Const. art.

I, ¶ 7.

    Homes are particularly protected spaces under those

constitutional guarantees.    See State v. Lamb, 218 N.J. 300, 314

(2014) (noting that “physical entry of the home is the chief

evil against which the wording of the Fourth Amendment is

directed” (quoting State v. Vargas, 213 N.J. 301, 313 (2013))).

Therefore, home searches raise heightened privacy concerns.

State v. Edmonds, 211 N.J. 117, 129 (2012); see also State v.

Evers, 175 N.J. 355, 384 (2003) (stating that privacy interest

in home is “entitled to the highest degree of respect and

protection in the framework of our constitutional system”).

    Because warrantless searches are presumptively unreasonable

generally, and particularly when a home is involved, the State

bears the burden of proving the validity of a warrantless

search.    State v. Wright, 221 N.J. 456, 468 (2015).   To be

valid, a warrantless search must fit into a recognized exception

to the warrant requirement.    See State v. Watts, 223 N.J. 503,

513 (2015).

    One well-recognized exception to the warrant requirement is

consent.   Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.

                                 13
Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973) (recognizing

consent exception to requirements of probable cause and warrant

under Fourth Amendment); State v. Domicz, 188 N.J. 285, 305

(2006) (“A search conducted pursuant to consent is a well-

established exception to the constitutional requirement that

police first secure a warrant based on probable cause before

executing a search of a home.”).     In a search of a home, the

United States Supreme Court has recognized that, in certain

circumstances, a third party -- a person other than the

defendant -- can validly consent to a search of the defendant’s

home.   United States v. Matlock, 415 U.S. 164, 170-71, 94 S. Ct.

988, 992-93, 39 L. Ed. 2d 242, 249-50 (1974).     The third party’s

ability to consent to such a search rests on his or her “joint

occupation” of and “common authority” over the premises.

Fernandez v. California, ___ U.S. ___, ___, 134 S. Ct. 1126,

1132-33, 188 L. Ed. 2d 25, 32-33 (2014); Illinois v. Rodriguez,

497 U.S. 177, 181, 110 S. Ct. 2793, 2797, 111 L. Ed. 2d 148, 156

(1990).   Also, in recognition of the many factual settings that

confront a law enforcement agent, an officer may, depending on

the circumstances, rely on the apparent authority of a person

consenting to a search.   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

                                14
that appearance of authority.     Rodriguez, supra, 497 U.S. at

185-89, 110 S. Ct. at 2800-02, 111 L. Ed. 2d at 159-61.

    Our Court also applies, under the State Constitution, the

consent exception to third parties who possess actual authority

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

Suazo, 133 N.J. 315, 319-20 (1993).     Furthermore, even when the

third party does not possess actual authority to consent to a

search, our Court has recognized that evidence seized during

such a search need not be suppressed under the State’s

constitutional requirements if 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, supra, 133 N.J. at 320).

                                  IV.

                                  A.

    Based on the evidence presented at the suppression motion,

we readily agree with the trial court, and therefore the

Appellate Division, that defendant was neither Betty Cushing’s

minor child nor her tenant.   A landlord-tenant relationship

would not have supported this search, in any event, because a

landlord “generally does not have authority to consent to a

search of a tenant’s premises.”    State v. Coyle, 119 N.J. 194,

215 (1990) (citation omitted).    With respect to a parent-child

                                  15
relationship as a basis for evaluating the facts involving this

search, the Appellate Division has recognized in the past the

principle that a parent generally has the right to consent to a

search of a minor child’s room in the parent’s home.    See State

v. Douglas, 204 N.J. Super. 265, 278-79 (App. Div.) (recognizing

that “the overwhelming majority of the cases uphold the right of

the parent to consent to a search of the son or daughter’s

room”), certif. denied, 102 N.J. 378 (1985).    We note also that

a panel of the Appellate Division has offered guidance on

whether an adult child’s room is subject to a parent’s ability

to consent to its search.    See State v. Crumb, 307 N.J. Super.

204, 243-45 (App. Div. 1997) (providing factors to assess

whether parent had authority to consent to search of adult

child’s room), certif. denied, 153 N.J. 215 (1998).    But here we

need not plumb the depths of that very fact-sensitive question

centering on expectations of privacy between the primary parties

because the question whether an expectation of privacy existed

here is easily resolved.    Defendant had a clear privacy

expectation in his room, which both he and his grandmother

recognized.

    When asked for consent to search her home, Betty Cushing

forthrightly told law enforcement that she did not go into

defendant’s room.   Officer Ziarnowski testified that while on

his way to apply for the search warrant, the officer at the

                                 16
residence relayed to him Betty Cushing’s statement that

defendant solely occupied the bedroom and that she was not

comfortable authorizing a search of the room.2   Based on those

statements by Betty when she had returned to her home, which

were relayed to Officer Ziarnowski prior to his application for

a search warrant, it should have been plain to the officer that

Betty regarded defendant as having exclusive possession of the

room and that she did not believe she had, nor did she wish to

exert, authority to consent to a search of his bedroom.

Authority to consent to search a particular area of a home turns

on common usage, and Betty Cushing’s evident lack of common use

of defendant’s bedroom and her recognition of his exclusive

control of that space meant that only defendant possessed the

ability to consent to a search of his bedroom and interior

space.   See State v. Maristany, 133 N.J. 299, 305 (1993) (noting

that consent may come “from a third party who possesses common

authority over the property”); Fernandez, supra, ___ U.S. at

___, 134 S. Ct. at 1132-33, 188 L. Ed. 2d at 32-33 (noting that

authority to consent rests on “joint occupation” and “common

authority”).


2 Because the officer to whom Betty made the statement did not
testify, the exact language she used is unclear. But Officer
Ziarnowski acknowledged at the suppression hearing that he was
told that Betty Cushing said defendant had exclusive possession
of his bedroom, that she did not freely go in and out of the
room, and that she would not consent to a search.
                                17
    Further cementing the conclusion that Betty lacked actual

authority to consent to a search of defendant’s room based on

her and defendant’s expectation of defendant’s privacy in that

space, Betty authorized the search of her entire home and yard

except for defendant’s bedroom.    This record contains ample

evidence to support the Appellate Division’s conclusion that

Betty Cushing did not have actual authority to consent to the

search of defendant’s room.   There is no need to address whether

Mylroie had actual authority to consent to the search of

defendant’s room by virtue of an asserted power of attorney

because Betty could not have conferred through any power of

attorney an authority that she did not possess herself.

    We now turn to whether, regardless of the lack of actual

authority possessed by Betty, or derivatively by Mylroie, the

search was valid pursuant to an objectively reasonable apparent

authority by Mylroie conveyed to Officer Ziarnowski.

                                  B.

    The standard for determining whether a police officer may

rely on a third party’s apparent authority is whether the

officer’s belief at the time was objectively reasonable.    Suazo,

supra, 133 N.J. at 320.   That standard is not satisfied in this

case based on the proofs presented at the suppression hearing.

Although there is no reason to question the officer’s good faith

when interacting with Mylroie at the house, we cannot conclude

                                  18
that the officer’s belief that Mylroie had authority to consent

to entry and inspection of defendant’s bedroom was objectively

reasonable.

    Third parties derive authority from common and joint use of

space.   That requirement calls for careful scrutiny when applied

to parties who are not the homeowners yet are purporting to

authorize consent to search the bedroom of an adult in the home

in which he resides.   Here, Mylroie told Ziarnowski that she

neither lived at the house nor owned it.    At that point,

Ziarnowski needed to establish a greater base of information

than he did before following Mylroie up the stairs and into

defendant’s bedroom.   He never asked for proof of the asserted

power of attorney or took steps to investigate its breadth.      He

never inquired exactly where Betty was or whether she could

return to the premises or even speak telephonically with him.

The officer also had no base of knowledge from Mylroie about

other people’s access to defendant’s room, generally, or for any

specific purpose such as to clean it.    Nor did he know about

defendant’s, or Betty’s, expectations about privacy in respect

of that space.   He never asked.    There was a failure to ask

adequate questions at the scene before the officer followed

Mylroie into defendant’s room and then peered into his closet.

    On this record, the Appellate Division correctly rejected

the argument that the officer reasonably relied on Mylroie’s

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power of attorney over Betty’s household affairs.    Mylroie

described its ability to give her financial powers to assist her

mother.   It was never produced, so we cannot verify its

existence or scope.    That said, a power of attorney, assuming it

would allow Mylroie to step into the shoes of Betty Cushing,

would not circumvent analysis of this adult defendant’s

expectation of privacy to his bedroom in his residence.

    Ziarnowski was obliged to ascertain information about the

exclusivity of the use of, and access to, defendant’s bedroom.

Prior to entering the bedroom, Ziarnowski did not know if Betty

Cushing, or any other family member, went freely into

defendant’s room.   And some statements that Mylroie made to

Ziarnowski should have alerted him that it appeared that

defendant was maintaining exclusive control over the domain of

his bedroom.   Mylroie told the officer that defendant had moved

his girlfriend into the room.   That should have suggested to an

objectively reasonable person that defendant had sufficient

privacy and control over his bedroom to invite another person to

live in it with him.   Ziarnowski did not even know whether

defendant’s bedroom door was open or whether Mylroie opened it

in order to enter it, either the first time or when he followed

her in.   The record has holes, which inure to the detriment of

the State, for it is the State that bears the burden of proving

the objective reasonableness of this warrantless search.

                                 20
    Ziarnowski did secure the premises, and he applied for a

search warrant without seizing the marijuana plants.    But that

does not change the objective reasonableness of his belief in

Mylroie’s apparent authority.    We hold that Ziarnowski could not

have relied on an apparent authority by Mylroie as the basis for

valid third-party consent to his initial search of defendant’s

bedroom.    We affirm that conclusion and judgment of the

Appellate Division.

    We further agree with the Appellate Division that this

matter requires a remand.    Whether Ziarnowski could have

obtained a search warrant independent of his observations from

his entry into the home with Mylroie was not adequately

addressed at the suppression hearing.    The State should be

permitted to present, and have the trial court determine, the

validity of its alternative independent-source theory in this

matter.    We therefore affirm the Appellate Division’s order of

remand.

                                 V.

    The judgment of the Appellate Division is affirmed.


     CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE LaVECCHIA’s opinion.




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