                                NOT FOR PUBLICATION WITHOUT THE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-5003-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ALBERT L. DINKINS,

          Defendant-Appellant.


                   Argued May 13, 2019 – Decided May 31, 2019

                   Before Judges Messano and Rose.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 14-09-
                   1617.

                   Marcia H. Blum, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Marcia H. Blum, of counsel
                   and on the brief).

                   Monica Lucinda do Outeiro, Assistant Prosecutor,
                   argued the cause for respondent (Christopher J.
                   Gramiccioni, Monmouth County Prosecutor, attorney;
                   Monica Lucinda do Outeiro, of counsel and on the
                   brief).
PER CURIAM

      Following denial of his motion to suppress evidence seized without a

search warrant, defendant Albert L. Dinkins pled guilty to third-degree

fraudulent use of a credit card, N.J.S.A. 2C:21-6(h). Pursuant to the terms of

the negotiated plea agreement, the remaining six counts charged in the

Monmouth County indictment were dismissed at sentencing.

     The sole issue in this appeal is whether the judge erred in denying

defendant's motion to suppress evidence seized under the consent exception to

the warrant requirement. Before us, defendant argues:

            POINT I

            THE EVIDENCE SEIZED IN THE WARRANTLESS
            SEARCH OF THE CAR MUST BE SUPPRESSED
            BECAUSE THE SEARCH WAS CONDUCTED
            DESPITE DEFENDANT'S OBJECTION AND
            VIOLATED     STATE      AND    FEDERAL
            CONSTITUTIONAL PROTECTIONS AGAINST
            UNREASONABLE SEARCH AND SEIZURE.

            A. Because [Defendant] Had A Reasonable Expectation
            Of Privacy In The Car, The Police Were Bound To
            Honor His Refusal To Consent To The Search.

            B. The Rental Company Could Not Give "Third-Party
            Consent" To Search.

            C. The State Did Not Establish That The Lease Had
            Expired, But Even If It Had Established That The Lease


                                                                      A-5003-17T1
                                      2
            Had Expired, The Rental Company Could Not Give
            Consent To Search.

            D. Even If The Rental Company Could Consent To
            Search The Car, It Could Not Consent To Search
            Closed Containers In The Vehicle.

            E. There Were No Exigent Circumstances That
            Justified The Failure To Obtain A Warrant.
            [(Not Raised Below)[1] ]

Having considered these arguments in view of the record and applicable legal

principles, we reverse and remand.

                                        I.

      At the suppression hearing, defendant did not challenge the propriety of

the motor vehicle stop, stipulating to the facts that led up to it. In summary, on

June 20, 2014, police stopped the vehicle based on information received from a

Macy's loss prevention officer, concerning the alleged use of fraudulent credit

cards. Defendant matched the description of the suspect, who attempted to

purchase gift cards at several cash registers "with credit cards that he was taking

out of different pockets." The vehicle matched the description of the suspect's




1
  The State did not seek to justify the search based on exigent circumstances
before the motion judge, nor does it do so on appeal. We therefore decline to
consider that argument.
                                                                           A-5003-17T1
                                        3
automobile, which exited the Monmouth Mall traveling southbound on Route

35.

      Shortly thereafter, Eatontown Police Officer Michael Schmerler stopped

the car on Route 35. The officer testified that defendant produced a driver's

license, but defendant said he was unable to produce the registration or insurance

card for the vehicle "because it was a rental car." Upon being advised by

Schmerler of the reason for the stop, defendant claimed he had not been in

Macy's, but had visited the food court and a shoe store in the mall. A back -up

officer at the scene asked to search the vehicle; defendant expressly refused

consent.

      Defendant was arrested after a warrant check conducted at the scene

revealed an active warrant in the name of the person listed on defendant's

driver's license. During processing at the police station, defendant admitted the

license belonged to his brother. Defendant was charged with obstruction-related

offenses, and remanded to the county jail.

      Thereafter, Detective Aaron Shaw determined the car was rented by

Shernell Grant from June 7 to June 13, 2014, and "defendant was not listed as a

renter or an[] additional driver" on the rental agreement. It is unclear from the

record when or how Shaw made that determination.             During a recorded


                                                                          A-5003-17T1
                                        4
telephone conversation on an unspecified date, Grant told Shaw "she had no idea

what was in the car and that [defendant was the] sole driver of the vehicle . . . ."

Shaw could not recall whether he asked Grant to consent to a search of the

vehicle. Shaw did not testify whether Grant indicated she extended the rental

agreement, and Grant did not testify at the hearing.

      Three days after the car stop, and while defendant remained lodged in the

county jail, Shaw contacted the rental car company and obtained consent to

search from the company's representative. Shaw did not ask the representative

whether the rental agreement had been extended. Among other things, officers

recovered: the rental car receipt; gift cards; and merchandise contained in bags

identified with logos from various stores, including Macy's. Defendant was

charged with theft-related offenses.

      At the conclusion of the suppression hearing, the judge rendered an oral

decision, denying defendant's motion. The judge acknowledged defendant had

"legal possession" of the automobile at the time he refused consent. The judge

then reasoned defendant lost the possessory interest he had in the car "that he

had merely been driving" based on his own actions. Specifically, defendant

"gave false information to the police as to his identity, which led to charges of

hindering and obstruction" and his incarceration in the county jail.


                                                                            A-5003-17T1
                                         5
      The judge then determined defendant did not possess a reasonable

expectation of privacy on the date the rental car was searched "[b]ecause at that

point he did not have a proprietary, possessory or participatory interest in the

vehicle." The judge specifically rejected "the theory that once . . . defendant

objected[,] the police could never go into that car, [which] would have to sit in

the [police impound] yard until . . . defendant was ready to come back [from

custody] . . . ." The judge said that result would be "ludicrous" especially

because defendant "never indicated to the police that he had any personal

property in that car that belonged to him." 2        The judge noted the rental

agreement, which had expired days earlier, was not in defendant's name.

Ultimately, the judge determined the rental company, as the "true owner of the

vehicle[,]" gave valid consent to search the vehicle.

                                        II.

      In reviewing a suppression ruling, we are mindful that we must uphold a

trial court's factual findings if they are supported by sufficient credible evidence

in the record. State v. Dunbar, 229 N.J. 521, 538 (2017). "We accord no


2
  The judge acknowledged that an application for a search warrant "would have
been the safer thing to do" but was unnecessary under Fernandez v. California,
571 U.S. 292, 306 (2014) (recognizing "[a] warrantless consent search is
reasonable and thus consistent with the Fourth Amendment irrespective of the
availability of a warrant").
                                                                            A-5003-17T1
                                         6
deference, however, to a trial court's interpretation of law, which we review de

novo." Ibid.

      Under the Fourth Amendment of the United States Constitution and

Article 1, Paragraph 7 of the New Jersey Constitution, a warrantless search is

presumed invalid, and places the burden on the State to prove the search "fall s

within one of the few well-delineated exceptions to the warrant requirement."

State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J.

471, 482 (2001)).    Consent is a well-recognized exception to the warrant

requirement. See e.g., State v. Hagans, 233 N.J. 30, 39 (2018); State v. Cushing,

226 N.J. 187, 199 (2016).

      "Consent may be obtained from the person whose property is to be

searched, from a third party who possesses common authority over the property,

or from a third party whom the police reasonably believe has authority to

consent." State v. Maristany, 133 N.J. 299, 305 (1993) (citations omitted). In

assessing an officer's reliance on a third party's consent, courts look to 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. Suazo, 133 N.J. 315, 320 (1993).




                                                                          A-5003-17T1
                                        7
         Relevant here, as the motion judge aptly recognized, there is a lack of case

law in this State "that directly addresses th[e] issue of whether a driver who is

not listed on the rental agreement has a reasonable expectation of privacy in the

rental vehicle."      Instead, the judge relied on three federal decisions that

supported his denial of defendant's motion. Recently, however, the United

States Supreme Court decided Byrd v. United States, __ U.S. __, 138 S. Ct.

1518, 1531 (2018), resolving the conflict that existed in the circuit courts on this

issue.

         Like the present case, the defendant in Byrd was the sole occupant of a

rental vehicle stopped by police. Id. at 1523. Similarly, during the stop in Byrd,

the officers determined the defendant was not listed as an authorized driver on

the rental agreement, which expressly provided, "permitting an unauthorized

driver to operate the vehicle is a violation of the rental agreement." Id. at 1523-

24. After the defendant refused consent, the officers nonetheless searched the

vehicle. Id. at 1523. In doing so, they believed the defendant did not have a

reasonable expectation of privacy in the rental vehicle because he was not listed

as an authorized driver in the agreement. Id. at 1525.

         In finding otherwise, the Court held "the mere fact that a driver in lawful

possession or control of a rental car is not listed on the rental agreement will not


                                                                             A-5003-17T1
                                           8
defeat his or her otherwise reasonable expectation of privacy." Id. at 1531. The

Court elaborated:

            [F]or Fourth Amendment purposes there is no
            meaningful difference between the authorized-driver
            provision and the other provisions [of] the [rental
            agreement that] do not eliminate an expectation of
            privacy, all of which concern risk allocation between
            private parties—violators might pay additional fees,
            lose insurance coverage, or assume liability for damage
            resulting from the breach. But that risk allocation has
            little to do with whether one would have a reasonable
            expectation of privacy in the rental car if, for example,
            he or she otherwise has lawful possession of and control
            over the car.

            [Id. at 1529.]

      Here, although defendant was not listed on the rental agreement as an

authorized driver, he had permission from Grant, who was the authorized renter,

to drive the vehicle. Indeed, Grant said defendant was the "sole driver" of the

car, and she disclaimed any knowledge whatsoever of the vehicle's contents.

Accordingly, defendant was "in lawful possession of and control over the car"

when Schmerler conducted the stop. See ibid. Defendant thus had a reasonable

expectation of privacy in that vehicle, although he was not an authorized driver

under the rental agreement. See id. at 1531.

      Unlike the circumstances in Byrd, however, after defendant refused

consent, the officers sought and obtained consent from the rental car company

                                                                        A-5003-17T1
                                       9
three days after he refused consent. Defendant claims the company's consent

under those circumstances did not override his refusal at the time he had

possession and control of the vehicle, even if the rental agreement had expired.

      The State counters the company, as the owner of the car, is not a third

party and therefore had the right to consent to search its vehicle. The State

contends any expectation of privacy defendant had in the vehicle ceased when

he was lawfully arrested and, as such, was no longer viable when the company

consented and the search was conducted. In support of its argument, the State

relies on Fernandez v. California, 571 U.S. 292 (2014), which the motion judge

also cited in support of his decision. The State's argument is unavailing.

      In Fernandez, the defendant refused to consent to a protective sweep of

his home when police appeared at his door after hearing "sounds of screaming

and fighting" within. Id. at 295. He was arrested and brought to the police

station on suspicion he had assaulted his girlfriend, who also appeared to be his

co-tenant. Ibid.   About an hour later, police returned to the premises and the

co-tenant gave consent to search the apartment. Ibid.        The United States

Supreme Court held the co-tenant's consent was valid as against the defendant,

reasoning "an occupant who is absent due to a lawful detention or arrest stands

in the same shoes as an occupant who is absent for any other reason." Id. at 303.


                                                                         A-5003-17T1
                                      10
      In Fernandez, both the defendant and his co-tenant had "jointly occupied"

the apartment and thus had "common authority" over the premises. Id. at 300;

see also United States v. Matlock, 415 U.S. 164, 171 n.7 (1974) (common

authority rests "on mutual use of the property by persons generally havin g joint

access or control for most purposes"). But, that joint occupation and resulting

common authority did not exist in the present case.

      Rather, the relationship between the rental car company and defendant

was less like co-tenants and more akin to that of a landlord and tenant. Indeed,

they did not share occupancy or actual possession of the vehicle: the rental

company owned the car; defendant was the sole driver. Under that analogy, the

company's authority to consent did not override defendant's.        See State v.

Wright, 221 N.J. 456, 475-76 (2015) (generally, a landlord has the right to enter

a tenant's apartment under certain circumstances, but "does not have the

authority to consent to a search of a tenant's private living space"); see also

Cushing, 226 N.J. at 200.

      Moreover, unlike the co-tenant in Fernandez, the rental company was not

present at the scene on the day of the incident. Nor did the police here seek the

owner's consent to search the vehicle within hours of the incident. Instead, three

days lapsed between the stop and ultimate search.


                                                                          A-5003-17T1
                                       11
      Lastly, although not dispositive of the issue before us, the record does not

support the trial judge's finding that the lease had expired, or had not been

extended, at least de facto, at the time consent was sought from the rental car

company. As such, we need not defer to that determination. See Dunbar, 229

N.J. at 538. In fact, the parties do not dispute that the rental agreement permitted

extensions of the lease. Further, the record is devoid of any evidence that the

company had demanded the car's return, see United States v. Lumpkins, 687

F.3d 1011, 1013 (9th Cir. 2013), or "attempted to repossess the car." United

States v. Henderson, 241 F.3d. 638, 647 (9th Cir. 2001).

      We therefore conclude defendant still had a reasonable expectation of

privacy over the vehicle when it was searched three days after the stop.

Accordingly, in view of the totality of the facts known to the police at the time

of the search, it was not "objectively reasonable" to obtain consent from the car

rental company. Suazo, 133 N.J. at 320.

      In light of our decision, we need not reach defendant's remaining

arguments. We simply add we agree with the motion judge that it would have

been more prudent for police to have applied for a warrant to search the vehicle.

Certainly, in the three days that transpired between the stop and search, there

existed ample time to make that application.


                                                                            A-5003-17T1
                                        12
Reversed and remanded. We do not retain jurisdiction.




                                                        A-5003-17T1
                              13
