Opinion
DOCKET NO. A-0859-13T2
03-14-2016
STATE OF NEW JERSEY, Plaintiff-Respondent/Cross-Appellant, v. ROBERT L. FREEMAN, JR., a/k/a ROBERT LENELL FREEMAN, JR., Defendant-Appellant/Cross-Respondent.
Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the briefs). Richard T. Burke, Warren County Prosecutor, attorney for respondent/cross-appellant (Kelly Anne Shelton, Assistant Prosecutor, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 12-09-0396. Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the briefs). Richard T. Burke, Warren County Prosecutor, attorney for respondent/cross-appellant (Kelly Anne Shelton, Assistant Prosecutor, of counsel and on the briefs). PER CURIAM
Defendant Robert L. Freeman, Jr., pleaded guilty to second-degree certain person not to possess a firearm, N.J.S.A. 2C:39-7(b)(1), after the trial court denied his motion to suppress the fruits of a consent search and Miranda motion to exclude his post-arrest statements. Contrary to the terms of the plea agreement, the court sentenced defendant to "five years New Jersey State prison, 60 months parole ineligibility all suspended."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant appeals, asserting the court erred in denying the motion to suppress the fruits of the consent search. The State appeals the sentence, asserting it violated N.J.S.A. 2C:39-7(b)(1). Having reviewed the parties' respective arguments in light of the record and applicable principles of law, we affirm the order denying the motion to suppress, and vacate the sentence and remand for resentencing.
Defendant did not expressly condition his plea on the right to appeal from the denial of his Miranda motion.
Although the State filed its notice of appeal first and defendant filed a notice of cross-appeal, we deemed defendant to be the appellant, and the State the cross-appellant, and ordered briefing in conformity with that designation.
I.
The sole witnesses at the suppression hearing were New Jersey State Troopers Jason Jorgensen and Ronald Mistretta, both then serving in the Commercial Carrier Unit of the Transportation Safety Bureau of the State Police. We discern the following facts from the record of the hearing.
Shortly before 9:00 a.m., Jorgensen conducted a routine administrative stop of defendant, who was driving a tractor-trailer with Texas tags eastbound on Interstate 80. Defendant was a resident of Ohio. When Jorgensen approached the cab to request defendant's credentials, Jorgensen detected a strong odor of raw marijuana. He called for backup while he reviewed defendant's paperwork in his patrol car.
Once Mistretta arrived, Jorgensen asked defendant to exit the vehicle. Jorgensen handcuffed defendant and informed him he was under arrest because of the apparent presence of marijuana. Jorgensen walked him to the front of the truck, where he remained with Mistretta. Jorgensen returned to the cab and removed Jorgensen's girlfriend, who had been in the sleeping berth. Meanwhile, Mistretta questioned defendant after giving him his Miranda warnings. Defendant admitted there was marijuana in a white box in a closet in the sleeping area of the cab, and exculpated his girlfriend.
Defendant was placed in the rear of the trooper car. Jorgensen sat in the front seat and read defendant the State Police consent to search form:
I, Robert L. Freeman Jr., . . . hereby authorize Tpr. J. Jorgensen . . . to conduct
a complete search of a 2010 Peterbuilt [sic] tractor . . . including all bags, containers, compartments, paperwork and digital data located at Interstate 80 Eastbound MP 11.2 Hope Twp. Warren County.
I further authorize the above member of the New Jersey State Police to remove and search any letters, documents, papers, materials, or other property which is considered pertinent to the investigation, provided that I am subsequently given a receipt for anything which is removed.
I have knowingly and voluntarily given my written consent to the search described above.
I have been advised . . . and fully understand that I have the right to refuse giving my consent to search and may depart if no other reason exists for detaining me.
I have been further advised that I may withdraw my consent at any time for any reason and that I have the right to be present during the search at a location consistent with the safety of all persons present.
. . . .
I waive my right to be present during the search.
Defendant orally gave consent. Jorgensen did not permit defendant to sign the form, because he believed removing the handcuffs would present a safety concern. Mistretta testified he heard Jorgensen read the form and defendant consent. There was no evidence that Jorgensen was overbearing or threatening.
Defendant remained in the trooper's car while Jorgensen searched the truck. Jorgensen opened the white box defendant had identified and found marijuana. Jorgensen also opened a zippered suitcase containing a man's clothing. There, he seized a .380 caliber loaded handgun.
At the station, defendant signed the consent form, checking the boxes to indicate he consented to the search and waived the right to be present during the search. In a recorded statement, defendant confirmed he told Mistretta there was marijuana in the white box and took full responsibility for the marijuana. Defendant also stated the consent form was read to him; he gave consent; and the handgun was found in his suitcase. Defendant stated he possessed the gun for self-defense.
Judge John H. Pursel denied the motion to suppress the fruits of the consent search. The judge found that Jorgensen read the consent form to defendant and defendant freely and voluntarily consented to the search. The judge found the two troopers were credible, and noted that defendant confirmed the troopers' accounts in his recorded statement. The judge rejected defendant's argument that Jorgensen's continuation of the search after discovering the marijuana exceeded the scope of consent, finding he was authorized to continue searching for additional marijuana.
After both suppression motions were denied, defendant appeared before a different judge and entered a plea of guilty to the second-degree certain persons offense. In return, the State agreed to dismiss the remaining charges against defendant: second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); disorderly persons possession of marijuana, N.J.S.A. 2C:35-10(a)(4); disorderly persons use or possession of drug paraphernalia, N.J.S.A. 2C:36-2; and a related motor vehicle violation. The State agreed to recommend a sentence of five years imprisonment, with a five year parole bar.
At sentencing, the court was persuaded by defendant's argument that a suspended sentence pursuant to N.J.S.A. 2C:43-2(b) was a permissible disposition. Defense counsel asserted defendant was "an Ohio license[d] weapon holder" and was unaware of New Jersey firearms laws. However, according to his presentence report, defendant "related that where he lives in Ohio no license is required to have a handgun . . . [and] he did not realize the weapons laws in New Jersey were not similar."
The court found that the only aggravating factor was the need to deter the defendant, N.J.S.A. 2C:44-1(a)(9), notwithstanding defendant's 2000 conviction in Ohio for burglary; convictions in the 1990s for domestic violence, marijuana possession and passing bad checks; 2004 conviction for failure to support dependents; and 2008 conviction for obstruction. The Ohio burglary conviction was the predicate offense for the certain persons conviction.
The court found that the aggravating factor was substantially outweighed by the mitigating factors: (1) defendant's conduct neither caused nor threatened serious harm; (2) defendant did not contemplate that his conduct would cause or threaten serious harm; (8) defendant's conduct was the result of circumstances unlikely to recur; (9) defendant's character and attitude indicated he was unlikely to reoffend; (10) defendant was particularly likely to respond affirmatively to probationary treatment; (11) imprisonment would entail excessive hardship to defendant's dependents; and (12) defendant's willingness to cooperate with law enforcement. See N.J.S.A. 2C:44-1(b). The court stated that defendant "drove [his] truck into New Jersey with this handgun locked away with [his] Ohio permit, [he] had no idea [he was] committing an offense." The court also found the sentence was consistent with the goals set forth in N.J.S.A. 2C:1-2(b).
The appeal and cross-appeal followed. We consider the following issue presented by defendant on his appeal:
THE SEARCH OF THE SUITCASE INSIDE THE SLEEPER BERTH OF THE TRACTOR VIOLATED BOTH THE FEDERAL AND STATE CONSTITUTIONS AS THE
CONSENT WAS NEITHER VOLUNTARY NOR DID IT ENCOMPASS A SEARCH OF THE SUITCASE.In addition to opposing defendant's appeal, the State contends in its appeal:
THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE WHEN IT SUSPENDED THE IMPOSITION OF THE MANDATORY MINIMUM REQUIRED BY N.J.S.A. 2C:39-7(B) (STATE'S CROSS-APPEAL).
Defendant presented this as Point II of his brief. The first point, in which defendant objected to a State motion to supplement the record, was rendered moot after we denied the State's motion.
II.
We consider first defendant's appeal from the denial of his motion to suppress the fruits of the search of the tractor. We are obliged to "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). Our deference is grounded in the trial judge's ability to hear and see witnesses and develop a feel of the case. Id. at 424-25. We may disturb the trial court's findings "only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Elders, 192 N.J. 224, 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). On the other hand, we review de novo the trial court's conclusions of law. State v. Rockford, 213 N.J. 424, 440 (2013).
It is well-settled that a search warrant is unnecessary where a person consents to a search. State v. Lamb, 218 N.J. 300, 315 (2014) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973)). "To justify a search on the basis of consent, the State must prove that the consent was voluntary and that the consenting party understood his or her right to refuse consent." State v. Maristany, 133 N.J. 299, 305 (1993) (citing State v. Johnson, 68 N.J. 349, 353-54 (1975)); see also State v. Sugar, 108 N.J. 151, 156 (1987) (consent to search must be "unequivocal, voluntary, knowing, and intelligent"). "To act voluntarily is to act with a free and unconstrained will, a will that is not overborne by physical or psychological duress or coercion." State v. Carvajal, 202 N.J. 214, 226 (2010).
Defendant argues his consent was not voluntary because he was in custody when he consented and, alternatively, the search of the suitcase exceeded the scope of consent. We disagree.
Our Court has set forth a non-exclusive list of factors a court may consider in determining whether consent is voluntary:
Among those factors which courts have considered as tending to show that the consent was coerced are: (1) that consent was made by an individual already arrested;
(2) that consent was obtained despite a denial of guilt; (3) that consent was obtained only after the accused had refused initial requests for consent to search; (4) that consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered; (5) that consent was given while the defendant was handcuffed.In determining whether consent was voluntary, we also consider whether police expressly informed the defendant of the right to refuse, and whether the defendant signed a form confirming consent. See State v. Carty, 170 N.J. 632, 639 (discussing State Police's development of consent to search form). No one factor is determinative, and trial courts should consider the totality of circumstances. King, supra, 44 N.J. at 353.
Among those factors which courts have considered as tending to show the voluntariness of the consent are: (1) that consent was given where the accused had reason to believe that the police would find no contraband; (2) that the defendant admitted his guilt before consent; (3) that the defendant affirmatively assisted the police officers.
[State v. King, 44 N.J. 346, 352-53 (1965) (citations omitted).]
The court's finding that defendant's consent was knowing and voluntary is supported by sufficient credible evidence. Defendant signed the consent form, acknowledging he acted voluntarily and understood his right to refuse consent or withdraw it at any time. Defendant also confirmed in his recorded statement that he consented to the search. Furthermore, he admitted that he possessed marijuana and the drugs belonged to him, and affirmatively assisted the officers by identifying where the marijuana was located. Although the police were unaware of the handgun before the search, defendant, a resident of Ohio, apparently was unaware of the legal consequences of his possession in New Jersey. He readily admitted his ownership, and stated he possessed it for self-defense. See King, supra, 44 N.J. at 353. The fact that defendant was detained when he consented does not vitiate his otherwise valid consent. Ibid. (consent is voluntary even if "obtained under the authority of the badge or after the accused had been arrested").
Defendant's argument that the search exceeded the scope permitted requires only brief comment. Defendant's consent, as expressed in the consent-to-search form, was not limited to the white box that he identified as containing the marijuana, but extended to "all bags, containers, [and] compartments." That included the suitcase. It was not locked and defendant did not tell officers not to examine it.
Further, the officers had a reasonable basis for believing defendant could consent to a search of the suitcase. "Absent evidence that the driver's control over the car is limited, a driver has the authority to consent to a complete search of the vehicle, including the trunk, glove compartment, and other areas." Maristany, supra, 133 N.J. at 306. Defendant did not disclaim ownership of the suitcase, and there was no evidence indicating he lacked authority to consent to a search of the suitcase. See id. at 307 (absent driver's denial of ownership of bag in trunk, it was reasonable for police to conclude he had apparent authority to consent to search). Jorgensen testified "the gun was right on top" when he opened the suitcase, and underneath the gun "were mens' clothes," indicating the suitcase belonged to defendant.
Turning to the State's appeal of defendant's sentence, the court erred in concluding a suspended sentence was permissible for second-degree certain persons not to possess a firearm. The Code states, "upon conviction thereof, the person shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term, which shall be fixed at five years, during which the defendant shall be ineligible for parole." N.J.S.A. 2C:39-7(b)(1).
The authority to impose a suspended sentence under N.J.S.A. 2C:43-2(b) is qualified: "Except as provided in subsection a. of this section, and subject to the applicable provisions of the code, the court may suspend the imposition of sentence on a person who has been convicted of an offense . . . ." N.J.S.A. 2C:43-2(b) (emphasis added). Subsection (a) states: "Except as otherwise provided by this code, all persons convicted of an offense or offenses shall be sentenced in accordance with this chapter . . . ." Thus, the sentencing provisions in chapter 43 yield to sentencing provisions elsewhere in the code, such as the section in chapter 39 governing certain persons offenses.
Even if N.J.S.A. 2C:39-7 did not mandate a minimum sentence of five years' imprisonment and a five-year parole bar, the commission of a second-degree crime carries with it a presumption of incarceration. N.J.S.A. 2C:44-1(d). That presumption may only be overridden by "having regard to the character and condition of the defendant, [the court] is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others." Ibid.
Furthermore, the prosecutor may not seek an exception to the mandatory minimum sentence for a second-degree certain persons conviction under N.J.S.A. 2C:39-7(b)(1), unlike a conviction for unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), or for other Graves Act offenses. See N.J.S.A. 2C:43-6.2 (permitting exception to mandatory minimum sentence imposed by N.J.S.A. 2C:43-6(c) or 2C:39-10(e)); N.J.S.A. 2C:43-6(c) (imposing minimum terms for violations of, among others, N.J.S.A. 2C:39-7(a), (b)(2), (b)(3)).
Simply put, the court lacked authority to impose a sentence less than the mandatory minimum. See State v. Des Marets, 92 N.J. 62, 64-66 (1983) (noting courts' obligation to adhere to mandatory sentencing scheme in Graves Act); State v. Lopez, 395 N.J. Super. 98, 107-08 (App. Div.) (court may not impose downgraded sentence below mandatory minimum), certif. denied, 192 N.J. 596 (2007). Therefore, we vacate the sentence and remand for resentencing in accord with the Code.
Des Marets was decided before adoption of the so-called "escape valve" provision, N.J.S.A. 2C:43-6.2, discussed above. --------
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION