                                NOT FOR PUBLICATION WITHOUT THE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-2744-19T3

STATE OF NEW JERSEY,

          Plaintiff-Appellant

v.

ADRIENNE L. HREHA,

     Defendant-Respondent.
_________________________

                   Argued telephonically June 2, 2020 –
                   Decided July 21, 2020

                   Before Judges Yannotti, Hoffman and Currier.

                   On appeal from an interlocutory order of the Superior
                   Court of New Jersey, Law Division, Ocean County,
                   Indictment No. 19-02-0298.

                   Shiraz I. Deen argued the cause for appellant (Bradley
                   D. Billhimer, Ocean County Prosecutor, attorney;
                   Samuel J. Marzarella, Chief Appellate Attorney, of
                   counsel and on the briefs; Shiraz I. Deen, on the briefs).

                   Alton D. Kenney argued the cause for respondent
                   (Alton D. Kenney, attorney; Clifford P. Yannone and
                   Alton D. Kenney, on the brief).
PER CURIAM

      The State appeals, on leave granted, from an order entered by the Law

Division on January 10, 2020, which granted defendant's motion to suppress

evidence. We reverse.

                                       I.

      In February 2019, defendant was charged with third-degree possession of

a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10(a)(1)

(count one); third-degree possession of a CDS with intent to distribute, N.J.S.A.

2C:35-5(a)(1) and 2C:35-5(b)(1) (count two); third-degree distribution of a

CDS, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count three); third-degree

possession of a CDS (Fentanyl), N.J.S.A. 2C:35-10(a)(1) (count four); third-

degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and

2C:35-5(b)(5) (count five); third-degree distribution of a CDS, N.J.S.A. 2C:35-

5(a)(1) and 2C:35-5(b)(5) (count six); first-degree strict liability drug-induced

death of Richard Froman, N.J.S.A. 2C:35-9 (count seven); third-degree

possession of a CDS (Xanax), N.J.S.A. 2C:35-10(a)(1) (count eight); third-

degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and

2C:35-5(b)(13) (count nine); and third-degree distribution of a CDS, N.J.S.A.

2C:35-5(a)(1) and 2C:35-5(b)(13) (count ten).


                                                                         A-2744-19T3
                                       2
      Thereafter, defendant filed a motion to suppress evidence obtained in the

search of the decedent's room, the items seized during the search, and the text

messages recovered from the decedent's cell phone. Defendant also sought to

suppress certain incriminating statements and other CDS defendant allegedly

possessed and distributed. The judge conducted an evidentiary hearing on the

motion.

      At the hearing, Detective Thomas Scalzullo of the Ocean County

Prosecutor's Office (OCPO) testified that on October 29, 2017, he was on night

duty. Sometime after 9:00 p.m., Scalzullo received a call from Detective Brent

Urichs of the OCPO's Major Crime Unit. Urichs asked Scalzullo to respond to

a residence on Ray Drive to assist in the investigation of a death at that location.

Scalzullo said the Toms River police had received an e-mail indicating the death

may have been due to a drug overdose.

      Scalzullo arrived at the residence on Ray Drive at around 10:00 p.m. It

was a two-story house, which had been rented to several persons. A few

residents were present, along with Toms River police officers, and a detective

from the Ocean County Sheriff's Office. An officer led Scalzullo to Froman's

room. He saw Froman's body, which was on the bed. He had been pronounced

dead. At the time of his death, Froman was twenty-nine years old.


                                                                            A-2744-19T3
                                         3
      Scalzullo stated that they were trying to determine if there had been foul

play but he did not observe any trauma. Initially, Scalzullo did not observe

anything "significant" so he and another detective looked around Froman's

room. In the top drawer of a dresser, Scalzullo found seven wax folds with

suspected heroin and part of a straw. Scalzullo suspected the wax folds had been

used to package heroin, and the straw could have been used to smoke or snort

the drug.

      Scalzullo testified that he was looking for evidence related to a potential

overdose, but he could not recall whether the dresser drawer had been open or

closed. Scalzullo also found a cellphone in the room, which he seized for further

investigation. He stated that the phone was in Froman's room but he could not

recall where he found it.

      Scalzullo obtained the phone number for Froman's mother, Laura Tice-

Boden, from an officer on scene. The officer was related to Tice-Boden by

marriage. Scalzullo stated that it was the Major Crime Unit's policy to get

consent from the next-of-kin of a decedent before searching through the

decedent's phone.

      Another officer called Tice-Boden and informed her that her son was

dead. Scalzullo got on the phone. He said Tice-Boden was very upset but "very


                                                                         A-2744-19T3
                                       4
cooperative." He asked if she would be able to sign a consent form giving the

detectives permission to search Froman's cellphone for information related to

his death. She agreed and planned to meet with Urichs. Scalzullo turned the

phone over to Urichs the following day. He said he did not open the phone until

he had Tice-Boden's consent.

      Scalzullo testified that when he responded to the residence on Ray Drive,

he did not know whether Froman had executed any documents that would have

given Tice-Boden authority to consent to a search of his phone upon his death.

He stated that he did not believe he had to obtain a search warrant to open the

phone once he received Tice-Boden's consent.

      Urichs searched the phone on October 30, 2017. Tice-Boden appeared at

the OCPO the following day. She was presented with and signed a digital

consent form, which authorized the officers to search Froman's phone. Before

she signed the consent form, Urichs used the phone to send text messages to

defendant. According to the State, the text messages implicated defendant in

the sale of the drugs that resulted in the decedent's death. Urichs also used the

phone to arrange meetings with defendant, which resulted in additional charges.

      Tice-Boden testified that she and her husband had been traveling

throughout the country, and they had been living in a recreational vehicle. On


                                                                         A-2744-19T3
                                       5
October 29, 2017, Tice-Boden was in North Carolina when one of Froman's

housemates sent her a message on Facebook informing her that her son had died.

      Tice-Boden said that, at some point that night, she spoke with Scalzullo.

She told Scalzullo he could take her son's cellphone. She said her son's car was

in front of his residence and the investigators could take "absolutely anything"

that might be helpful.

      Tice-Boden explained that her brother-in-law was one of the officers at

the scene when her son's body was found.         She gave her brother-in-law

permission "to sign anything or do anything that need[ed] to be done" to aid the

investigation.

      Tice-Boden returned to New Jersey and on the morning of October 31,

2017, she met with Urichs. She signed a consent form authorizing the OCPO to

search Froman's phone. Tice-Boden said she would have done anything in her

power to help the police determine what happened to her son. She stated this

included giving the police consent to search her son's phone for any evidence

that could "hopefully lead to an arrest of a person who was involved."

      Tice-Boden further testified that she paid for her son's cellphone but to

her knowledge, her son was the only person who had control of the phone and

used it. She did not recall any of the officers indicating they were planning to


                                                                         A-2744-19T3
                                       6
obtain a search warrant or asking whether she had any ownership interest in the

phone. She stated that Froman rented the room in the house at Ray Drive for

his own use. She said it was a separately secured room.

      Tice-Boden asked Urichs whether her son's phone was locked, and he told

her he had taken possession of the phone. Urichs said he was able to get into

the phone "right away" because it was not protected by a password. According

to Tice-Boden, Urichs indicated he was "able to read things" on the phone and

he would return the phone to her after the OCPO was done with it.

      Tice-Boden also stated that at the time of her October 31, 2017 meeting

with Urichs, she knew the OCPO had been "using [the phone] actively . . . as

part of the investigation." She did not believe anyone had accessed the contents

of the phone until after she gave Scalzullo permission to do so in the telephone

conversation on October 29, 2017.

                                      II.

      In a written opinion, the motion judge noted that the Fourth Amendment

to the United States Constitution and Article 1, paragraph 7 of the New Jersey

Constitution, protect persons from unreasonable searches and seizures. The

judge noted that warrantless searches are presumptively unreasonable. The

judge observed that where the police act without a warrant, the State has the


                                                                        A-2744-19T3
                                       7
burden of showing that the search or seizure was based on probable cause and

fell within one of the recognized exceptions to the warrant requirement.

      The judge found defendant had standing to challenge the validity of the

search of Froman's room and cellphone and the seizure of evidence obtained in

the search. The judge stated that defendant had a participatory interest in the

communications with Froman, which implicated her in the charges for CDS

possession, distribution and strict liability homicide charges. The judge also

stated that defendant had standing to challenge the search of Froman's dresser

because "she is the individual who presumably provided heroin to the decedent

prior to his death."

      The judge determined that the community caretaking and emergency aid

doctrine justified the initial entry by the police into Froman's room but did not

authorize the warrantless search of the room. The judge determined that the

State did not establish that the phone, CDS, or the drug paraphernalia were in

plain sight in the room. The State also failed to establish that Tice-Boden had

actual or apparent authority to consent to the search of her son's phone.

Moreover, the judge found that the doctrine of inevitable discovery did not

apply.




                                                                           A-2744-19T3
                                       8
      The judge therefore concluded that the evidence the police obtained in the

search of Froman's room, the items found in the search, and text messages on

Froman's cellphone must be suppressed. The judge also concluded that the text

messages between Urichs and defendant and the CDS seized as a result of these

communications, must be suppressed as the fruit of the unlawful search and

seizure of evidence. The judge memorialized his decision in an order dated

January 10, 2020.

      The State thereafter filed a motion with this court seeking leave to appeal

from the court's order. While the motion was pending, the motion judge filed

an amplification of his reasons for granting defendant's motion to suppress ,

pursuant to Rule 2:5-1(b). We entered an order dated March 9, 2020, granting

the State's motion for leave to appeal.

                                          III.

      On appeal, the State contends the motion judge erred by finding defendant

had standing to challenge the search of Froman's room, the seizure of the

evidence found in the search, and the text messages found on Froman's

cellphone. The State argues that defendant did not establish that she had a

proprietary, possessory or participatory interest in the evidence.




                                                                         A-2744-19T3
                                           9
      The United States Constitution and the New Jersey Constitution protect

the people from unreasonable searches and seizures. State v. Randolph, 228 N.J.

566, 581 (2017) (citing U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7). A person

alleging a violation of the Fourth Amendment must show that law enforcement

violated "an expectation of privacy" that the person "possessed in the place

searched or the item seized." Id. at 582 (quoting United States v. Salvucci, 448

U.S. 83, 93 (1980)).

      However, under the New Jersey Constitution, a "criminal defendant is

entitled to bring a motion to suppress evidence obtained in an unlawful search

and seizure if he has a proprietary, possessory or participatory interest in either

the place searched or the property seized." Id. at 581-82 (citing State v. Alston,

88 N.J. 211, 228 (1981)). The State has the burden to show that the defendant

lacks standing to challenge the unlawful search or seizure. Id. at 582 (citing

State v. Brown, 216 N.J. 508, 528 (2014)).

      Where a defendant is charged with an offense in which possession of the

seized evidence is an essential element, the defendant has "automatic standing."

Alston, 88 N.J. at 228. In such a case, the defendant is deemed to have the

requisite proprietary or possessory interest in the seized evidence to confer

standing. A defendant also may have standing to challenge the search and


                                                                           A-2744-19T3
                                       10
seizure of evidence if the defendant has a participatory interest in the place

searched or the property seized. Ibid. (citations omitted).

        "A participatory interest in seized evidence . . . stresses the relationship

of the evidence to the underlying criminal activity and defendant's own criminal

role in the generation and use of such evidence." State v. Mollica, 114 N.J. 329,

339 (1989). The fact "[t]hat evidence implicates a defendant in a crime is not,

in and of itself, sufficient to confer standing." State v. Bruns, 172 N.J. 40, 58

(2002). Rather, "[t]here also must be at a minimum some contemporary

connection between the defendant and the place searched or the items seized."

Ibid.

        In Bruns, the defendant was charged with armed robbery. Id. at 44. He

challenged the search of a third-party's automobile, during which the police

found and seized a knife and toy handgun used in the robbery. Ibid. The Court

noted that New Jersey generally applies a broad standing rule when a defendant

seeks to challenge the search and seizure of evidence on constitutional grounds .

Id. at 53.

        The Court stated, however, that its "decisions did not address the standing

requirement in cases in which a defendant clearly had abandoned or relinquished

his [or her] possessory interest in the property being seized or in which his [or


                                                                            A-2744-19T3
                                        11
her] participatory interest in that property had become very remote or attenuated

at the time of the seizure." Ibid. (quoting State v. Arthur, 149 N.J. 1, 12-13

(1997)).

        The Court observed that the weapons seized in the search "did not relate

to any ongoing criminal activity between" the defendant and the persons who

were occupying the car when it was searched. Id. at 58. The robbery occurred

seven days before the items were seized, and there was no evidence the

defendant was engaged in "a continuing criminal relationship" with one of t he

occupants of the car. Ibid. In addition, the defendant presented no evidence at

trial indicating he handed the weapons to an occupant of the car for safekeeping.

Ibid.

        The Court stated that in most cases in which the police seize evidence that

implicates a defendant in a crime, the defendant will be able to establish an

interest in property seized. Id. at 59.      However, the "broad standing rule

necessarily has limits." Ibid. The Court explained that:

              [i]f substantial time passes between the crime and the
              seizure of the evidence, and a proprietary connection
              between defendant and the evidence no longer exists,
              the defendant's basis for being aggrieved by the search
              will have diminished. In addition to the temporal
              aspects of a specific search or seizure, a showing that
              the search was not directed at the defendant or at
              someone who is connected to the crime for which he

                                                                           A-2744-19T3
                                        12
            has been charged also will diminish a defendant's
            interest in the property searched or seized. See [United
            States v. Smith, 621 F.2d 483 (1980)] (finding no
            standing where defendant was objecting to [a] search
            undertaken for reasons completely unrelated to his
            alleged criminal activity).

            [Ibid.]

      The Court held that the defendant did not have standing to challenge the

search of the vehicle. Ibid. The Court pointed out that seven days had passed

between the seizure of the evidence and the armed robber and the defendant was

not in physical proximity to the evidence when it was seized. Ibid.

      Here, the record does not disclose when defendant allegedly sold the CDS

that resulted in Froman's death. Nevertheless, at the time the police searched

Froman's room, defendant had relinquished any possessory or proprietary

interest in the CDS allegedly sold to Froman. Furthermore, defendant was not

charged with any offense for which possession of the cellphone was an element.

      Furthermore, at the time of the search, defendant did not have any

contemporaneous connection with Froman's room, his cellphone, the CDS, or

the drug paraphernalia. There also was no evidence that when the search

occurred, defendant and Froman were engaged together in any ongoing criminal

activity.



                                                                       A-2744-19T3
                                      13
      Moreover, according to Scalzullo, the officers searched Froman's room to

identify the cause of Froman's death and protect other occupants of the residence

from any dangerous CDS. The search was not directed at defendant or any

specific criminal activity.   Therefore, defendant did not have standing to

challenge the search of Froman's room or the seizure of the CDS, the drug

paraphernalia, and his cellphone.

      We also conclude that defendant did not have standing to challenge the

search of Froman's phone and the seizure of the communications between

defendant and Froman on the phone. According to the State, the text messages

on the phone connect defendant to the sale of CDS that caused Froman's death.

We are convinced, however, that when the police searched the phone, defendant

did not have a participatory interest in the text messages found on that device.

      The sale of the CDS took place sometime before Froman's death and the

subsequent search of his room and seizure of the phone. As stated previously,

there is no evidence that when the search occurred, defendant and Froman were

engaged in any ongoing criminal activity. The text messages apparently related

to the CDS transaction, which had been concluded earlier. Moreover, it appears

that the police did not open the phone and read the text messages until several

days after Froman's death.


                                                                         A-2744-19T3
                                      14
      We conclude that at the time the detectives searched the phone and read

the text messages, defendant did not have a sufficient participatory interest in

the text messages to confer standing to challenge the search of the phone and

seizure of the messages. According to the State, the messages implicate

defendant in the offenses related to the distribution of CDS to Froman which

allegedly caused his death. However, this is not sufficient to confer standing to

challenge the search and seizure on constitutional grounds. Bruns, 175 N.J. at

57-58.

      Our recent decision in State v. Armstrong, __ N.J. Super. __ (App. Div.

2020), supports our conclusion that defendant does not have standing to

challenge the search of the phone and the seizure of messages implicating

defendant. In Armstrong, the defendant was charged with the murder of Rhasan

Heath. Id. at   (slip op. at 2). The defendant filed a motion to suppress certain

text messages he sent to Nache DeWitt, who was his former girlfriend and the

mother of his child. Ibid.

      At the time of the murder, DeWitt was Heath's paramour. Id. at 2-3. It

appears that on the night of the murder, DeWitt was with Heath, and the

defendant sent her texts and calls on her cellphone, which were threatening. Id.

at 3. DeWitt did not respond to the defendant's texts and phone calls. Ibid.


                                                                         A-2744-19T3
                                      15
      The State claimed the defendant was enraged and went in search of

DeWitt. Ibid. The defendant saw DeWitt and her daughter leave the building

and an altercation ensued. Ibid. When Heath emerged, the defendant began to

shoot him. Ibid. Heath ran into the street and was struck by a car. Ibid. As he

lay at the curb, the defendant shot him three times and killed him. Ibid.

      We held that the defendant did not have standing to challenge the search

of DeWitt's phone and the seizure of the text messages and calls on that device.

Id. at 27-28. We concluded that the defendant did not have a participatory

interest in the text messages and calls. Ibid.

      We observed that "the mere fact that the text messages could be evidence

used by the State to prove [the] defendant's commission of a crime does not

confer standing upon him to seek their suppression." Id. at 27 (citing Bruns,

172 N.J. at 38).    We noted that the defendant and DeWitt were not co-

conspirators, nor was defendant her accomplice in the murder. Id. at 28. We

pointed out that the criminal activity at issue was the deadly shooting of Heath,

and this criminal activity did not generate the evidence. Ibid.

      Here, the alleged criminal activity is the distribution of CDS that allegedly

caused Froman's death. According to the State, the messages related to the CDS

transaction, but time had passed between the communications and the seizure of


                                                                            A-2744-19T3
                                       16
the evidence and defendant and Froman were not engaged together in any

ongoing criminal activity. The search of the phone and its contents were not

directed at defendant. Under the circumstances, defendant's interest in the

search and seizure of the phone and its contents was diminished.

                                       IV.

      The State argues that even if defendant has standing to challenge the

seizure of the text messages found on Froman's phone, the search of the phone

and the seizure of the messages did not violate her rights under the United States

Constitution or the New Jersey Constitution. We agree.

      In State v. Evers, 175 N.J. 355, 368-69 (2003), the Court noted that in

order to invoke the protections of the Fourth Amendment of the United States

Constitution or Article I, paragraph 7 of the New Jersey Constitution, a

defendant must show that he or she had "a reasonable or legitimate expectation

of privacy" that was violated by someone in law enforcement. The defendant

must establish that he or she had "an actual (subjective) expectation of privacy,"

and "one that society is prepared to recognize as reasonable." Id. at 369 (quoting

Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); State

v. Marshall, 123 N.J. 1, 66-67 (1993)).




                                                                          A-2744-19T3
                                       17
      The Court explained that "[a]n individual ordinarily surrenders a

reasonable expectation of privacy to information provided to a third party. If

that third party discloses the information to the government, the individual, who

falsely believed his confidence would be maintained, will generally have no

Fourth Amendment claim." Id. at 369 (citing United States v. Miller, 425 U.S.

435, 443 (1976); Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001)).

      The Court held that the defendant did not have a reasonable expectation

of privacy with regard to two photos of underage nude girls that he e-mailed to

fifty-one subscribers to a chatroom. Id. 370. The Court noted that the defendant

transmitted the e-mail "at peril that one of the recipients would disclose his

wrongdoing." Ibid. The Court observed, "There is no constitutional protection

for misplaced confidence or bad judgment when committing a crime." Ibid. The

Court also held that defendant had no reasonable expectation of privacy under

the Federal or State Constitution in the subscriber information store at AOL

headquarters in Virginia. Id. at 370-74.

      In Armstrong, we noted that while our Supreme Court had declined to

follow the third party doctrine where the third party is a common carrier, an

internet provider, or a bank, the Court has applied the doctrine to person-to-

person digital communications. Armstrong,       N.J. Super. at   (slip op. at 18).


                                                                         A-2744-19T3
                                      18
We held the defendant did not have a reasonable expectation of privacy in the

text messages he sent to another individual once that individual received the

messages. Id. at 19.

      The same conclusion applies here. Defendant did not have a reasonable

expectation of privacy in text messages she sent to Froman once they were

received. See also State v. Patino, 93 A.3d 40, 55-56 (R.I. 2014) (holding that

because a recipient shares control of a sender's message, the sender does not

have a reasonable expectation of privacy in the message on the recipient's

device); Hampton v. State, 295 Ga. 665, 763 (2013) (concluding defendant had

no expectation of privacy in text messages stored on the phone that the defendant

did not own); State v. Tentoni, 871 N.W.2d 285, 287 (Wis. Ct. App. 2015)

(finding that the defendant did not have an objectively reasonable expectation

of privacy in text messages he sent and recovered through a warrantless search

of the recipient's phone); Leis, 255 F.3d at 333 (noting that individual who sends

an e-mail does not have a legitimate expectation of privacy in an e-mail that

reached its recipient); and United States v. Jones, 149 Fed. Appx. 954, 957 (11th

Cir. 2005) (holding that co-conspirators do not have a reasonable expectation of

privacy in their text communications).




                                                                          A-2744-19T3
                                       19
      This conclusion also applies to the messages defendant sent to the

detective, who communicated with her using Froman's phone. As noted, in

Evers, the Court held that the defendant had no expectation of privacy in an

email sent to numerous recipients, including an undercover police officer. 175

N.J. at 370. The fact that defendant allegedly sent the text messages to the

detective only, in the belief that she was communicating with Froman, is of no

moment. Defendant did not have a reasonable expectation of privacy in the

messages after she sent them and they were received by the detective.

                                      IV.

      In addition, the State argues that the motion judge erred by finding that

Tice-Boden did not have authority to consent to the searches of the decedent's

room and his phone. The State also argues that Scalzullo reasonably believed

Tice-Boden had apparent authority to consent to the searches.

      "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." State v. Cushing, 226 N.J.

187, 199 (2016) (quoting State v. Domicz, 188 N.J. 285, 305 (2006)). A third

party may consent to a search if that party has "joint occupation of" and

"common authority" over the premises or the property being search. Ibid. (citing


                                                                        A-2744-19T3
                                      20
Fernandez v. California, 571 U.S. 292 (2014); Illinois v. Rodriguez, 497 U.S.

177, 181 (1990)).

      Furthermore, a law enforcement officer may rely upon the consent of a

person who has apparent authority to provide such consent. Ibid. The doctrine

of apparent authority applies when the 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." Id. at 199-200 (citing Rodriguez, 497 U.S. at 185-89).

      Here, the motion judge found that when the police searched Froman's

room and phone, Tice-Boden did not have actual authority to consent to the

searches. The judge noted that the State had taken the position that since Tice-

Boden was Froman's next-of-kin, she had the authority to consent to the searches

in the immediate aftermath of his death. The judge found, however, that at the

time of the searches, Tice-Boden did not have a legal or equitable entitlement to

her son's personal property.

      On appeal, the State asserts that Froman did not have a will when he died

and Tice-Boden became the legal owner of the decedent's property when he died.

In support of that contention, the State relies upon N.J.S.A. 3B:5 -4. Among

other things, the statute provides that if a decedent dies intestate and has no


                                                                         A-2744-19T3
                                      21
surviving spouse or domestic partner, the decedent's estate passes first to [the

decedent's] descendants and, if there are no surviving descendants, "to the

decedents' parents equally if both survive, or to the surviving parent, except as

provided in [N.J.S.A. 3B:5-14.1]; . . . " N.J.S.A. 3B:5-4(a), (b).

      Here, the State failed to show Tice-Boden had actual authority to consent

to the searches of her son's room and phone when the searches took place. She

testified she is the decedent's next-of-kin, but she did not explain if her son had

any descendants. As a surviving parent, Tice-Boden may have had an interest

in the estate under N.J.S.A. 3B:5-4, but there is no indication that she had a right

to control her son's property immediately upon his death. Furthermore, as the

motion judge pointed out, Tice-Boden was not named administratrix of her son's

estate until months after the search took place.

      The State also failed to establish that Scalzullo reasonably believed Tice-

Boden had apparent authority to consent to the search. As the motion judge

noted, Scalzullo did not elicit from Tice-Boden sufficient facts which would

have given him a reasonable basis to assume she had authority to consent to the

searches. Tice-Boden never gave the detective any indication she had control

over the room where Froman was living at the time of his death or his phone.




                                                                            A-2744-19T3
                                        22
Indeed, at the hearing, Tice-Boden explained that Froman had sole control of

his room and the phone belonged to him.

      We nevertheless conclude that, while Tice-Boden did not have actual or

apparent authority to consent to the search of Froman's room or his phone, the

lack of such consent does not require suppression of the evidence. As we have

determined, defendant does not have standing to challenge the search and

seizure of the evidence.

      Furthermore, even if defendant has standing to seek suppression of the

evidence, the motion to suppress should have been denied because defendant did

not have a reasonable expectation of privacy in the premises where Froman was

living when he died, his cellphone, or the messages found on his phone.

Moreover, there was no basis to suppress the text messages defendant exchanged

with the detective, defendant's incriminating statements, or the CDS seized as a

result of those conversations.

      Reversed and remanded to the trial court for further proceedings in

accordance with this opinion. We do not retain jurisdiction.




                                                                        A-2744-19T3
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