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NJ Roof Search deemed Outside Scope of Consent


by in Criminal Appeals

State v. Miguel Cruz, unpublished opinion, App. Div. Docket No. A-4546-09T4 (December 8, 2010) – Suppression of evidence affirmed.

“The State appeals from the trial court order granting defendant’s motion to suppress a handgun retrieved from the roof of a home where parole officers were attempting to apprehend another individual who had absconded from parole…. On appeal, the State raises one point, namely, that the trial court erred in limiting the scope of consent to the subjective intent of the executing officer, rather than the objectively reasonable understanding of its terms…. Here, the consent to search extended to the officers was based upon the resident’s understanding that the officers were searching for a human being. Assuming it was objectively reasonable to believe that the parolee may have attempted to exit the home via the roof, the sequence of events that unfolded once officers arrived at the residence did not render Officer Brooks’ action ‘objectively reasonable.’ When the officers arrived at the residence, Officer Brooks, before the officers knocked on the front door, immediately went to the rear of the residence, jumped the fence of the property and positioned himself to observe all activity from the rear of the property. He therefore knew at that time there was no one on the roof or attempting to gain access to the roof. Moreover, by the time he retrieved the ladder to gain access to the roof, the search for the parolee had been completed. Hence, the search onto the roof was not to look for the parolee but for the sole purpose of retrieving the black bag which he suspected contained narcotics. Under these circumstances, the search was not objectively reasonable.”






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