State v. Wright, Appellate Division A-4813-10T1
“third-party intervention” exception or “private search” doctrine
July 25, 2013, the Appellate Division affirmed the conviction of a defendant based on evidence obtained under the “third-party intervention” doctrine where police can search a defendant’s property without a warrant, as long as they are within the scope of the private actor’s intrusion. On March 30, 2009, the defendant’s girlfriend had given the landlord permission to enter the property to repair a leaky pipe causing damage in the kitchen and master bedroom. The landlord saw drugs in the bedroom and immediately called the police. Police arrived at the property and observed the leak and the drugs without seizing or searching anything. The tenant, the defendant’s girlfriend, was contacted while police were posted at the bedroom and entrance to the property to preserve evidence. When the girlfriend arrived, she was read her Miranda rights and consented to a search of the property. Police found marijuana, cocaine, a scale, sandwich bags, baking soda, a Pyrex plate with powder residue, a handgun in a backpack, hollow point round and a bag of one hundred bullets. At trial the defendant’s girlfriend denied giving the landlord permission to enter and stated she only consented to a police search because she was scared they would call DYFS.
At trial the judge did not find the defendant’s girlfriend to be a credible witness and that she was attempting to exculpate the defendant who fathered their child and controls her in a domineering relationship. The landlord had a right to be on the property and when the police entered the property they were within the “third-party intervention” exception to the Fourth Amendment’s warrant requirement. Based on the credibility findings at trial, the record shows no violation of the tenant’s privacy rights. The significant fact the court points to in application of the “third-party intervention” exception is that the police did not go beyond the physical scope of the landlord’s entry until they had the tenant’s consent. Therefore the Appellate Division agreed with the trial judge that the warrantless police search was constitutionally valid and affirmed the defendant’s conviction.
In upholding the conviction, the Appellate Division emphasizes the Fourth Amendment is protection from the government, not searches by private citizens. Hence the “third-party intervention” being synonymous with the “private search” doctrine. In Walter v. United States, 447 U.S., 649 (1980), the U.S. Supreme Court found no Fourth Amendment violation by the FBI’s receipt of films from a private party. When a private citizen, such as a landlord, searches a property he is motivated by reasons other than securing a criminal conviction. When that private individual is not acting in an illegal manner and his conduct is a reasonably foreseeable intrusion of privacy that conduct will not be a violation of the Fourth Amendment, therefore information resulting from that conduct in not in violation of the Fourth Amendment. Information obtained from the “private search” can be transmitted to police; however police are limited to only the initial discovery by the private party. Additional discovery by police beyond the private individual’s initial discovery requires the police have a warrant or consent.