Opinion
DOCKET NO. A-4314-13T2
10-28-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEITH GOODMAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-09-2372. Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following denial of his motion to suppress evidence seized from a warrantless search of an automobile in which he was a passenger, defendant Keith Goodman pled guilty to two counts of Atlantic County Indictment No. 13-09-2372, charging him with third-degree hindering apprehension, N.J.S.A. 2C:29-3b(4); and second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7. Defendant also pled guilty to Indictment No. 13-09-2422, charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). In accordance with the negotiated plea, the judge sentenced defendant to an aggregate term of seven years' imprisonment with a five-year period of parole ineligibility. The remaining counts of Indictment No. 13-09-2372 were dismissed. Defendant now appeals from the denial of his suppression motion. For the reasons that follow, we affirm.
I.
The following evidence was introduced at the suppression hearing. On July 22, 2013, at approximately 1:40 a.m., Galloway Township Police Officer Daniel Choe observed a black Nissan Murano traveling westbound on Duerer Street. The vehicle made an illegal U-turn and proceeded in the opposite direction, subsequently failing to stop at a four-way stop sign at the intersection of Duerer Street and Odessa Avenue.
Choe was employed as a detective with the Atlantic County Prosecutor's Office when he testified at the suppression hearing.
Choe stopped the car and informed the driver, Asia Williams, that she made an illegal U-turn and failed to stop at the stop sign. Choe twice asked Williams to produce her driver's license, registration, and proof of insurance. He observed that she appeared nervous, was breathing rapidly, and was looking everywhere inside her vehicle for the requested documents. Eventually, Williams was only able to produce her driver's license.
Choe subsequently issued Williams summonses for these traffic violations.
In the interim, Choe noticed that the rear seat passenger, Keith Kinsey, "was not wearing his seatbelt and appeared to be very nervous." Choe also observed that Kinsey was "moving his head left to right as if he was sleeping, and . . . breathing rapidly." Because Kinsey was not wearing a seatbelt and based on "the totality of the circumstances," Choe then asked Kinsey how old he was and whether he had identification with him. Kinsey did not produce any identification, but stated that his name was Jamel Parker, that he was seventeen years old, and that his birthday was August 17, 1987. Choe immediately recognized that this information was false, as the date of birth provided would make the passenger twenty-five, rather than seventeen, years old.
Defendant was a passenger in the front seat of the car. Choe also asked him for identification, which he was unable to provide. Defendant informed the officer that his name was John Williams and that his birthday was July 14, 1989. Choe then contacted dispatch to confirm the accuracy of the information provided by Kinsey and defendant.
After he was informed that the names and dates of birth provided by Kinsey and defendant could not be verified, Choe asked Kinsey to step out of the vehicle. As Kinsey did so, Choe noted the odor of marijuana emanating from him. Kinsey admitted that he smoked marijuana earlier. Choe again asked Kinsey for his correct identification. Kinsey now stated his name was Jamel J. Kinsey, and he provided Choe with a different age and date of birth, along with a social security number. Choe transmitted this information to dispatch, but was again advised that there were no matching results. At this point, Kinsey was not under arrest but was being detained for identification purposes.
Galloway Township Police Officer Scott Winneberger arrived while Choe was speaking with Kinsey. As Winneberger approached, he noticed defendant moving around in the front seat. Winneberger asked defendant why he was moving around, and defendant responded that he was "checking things." Winneberger advised defendant to place his hands on the dashboard where they would be visible. Defendant did so, and Winneberger observed that he appeared "extremely nervous," his hands were "visibly shaking," and "beads of sweat [were] coming off the top of his brow." While conversing with defendant, Winneberger smelled the odor of raw marijuana coming from inside the vehicle.
Winneberger testified that he then went to discuss the situation with Choe. However, defendant "immediately started moving around the passenger seat again, and [Winneberger] had to actually return for a second time and tell him to put his hands back on the dashboard." Winneberger ordered defendant out of the car due to his concerns for the officers' safety and his belief, based on the odor of marijuana, that the vehicle contained contraband.
Choe then questioned the driver, Williams, whether anything in the vehicle belonged to her, to which she responded "yes." Choe then asked whether there were any drugs or weapons in the vehicle. Williams stated that there were no drugs. As to weapons, she gave three different responses: (1) "[m]y dad has a gun permit"; (2) "I don't know"; and (3) "[n]o." Choe considered Williams's responses "evasive" and "suspicious." He testified that he was concerned for the officers' safety and that there might be a weapon in the vehicle. Choe asked Williams to step out of the vehicle and presented her with a consent to search form that she signed after her rights were fully explained to her. The consent form authorized the police to conduct a "complete" search of Williams's vehicle.
Choe and Winneberger proceeded to search the car between 2:25 a.m. and 3:05 a.m. Although the officers did not find any drugs inside the vehicle, they did locate an empty black gun case in the trunk. They ran the serial number on the gun case through the NCIC system and discovered that the gun belonging to that case had been reported stolen out of Pennsylvania. Additionally, they located a gun and two magazines and ammunition beneath a tire compartment in the trunk. Williams, Kinsey, and defendant were all read their Miranda warnings and placed under arrest. Following additional investigation, Kinsey and defendant were charged with possession of the handgun, as well as drug possession and giving false information. Except for the motor vehicle violations, Williams was not charged.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). --------
In a comprehensive written opinion, the motion judge rejected defendant's arguments that his detention and the ensuing search of the vehicle were unlawful. The judge found both officers' testimony "very credible" and hence entitled to "great weight." He concluded that, "based on the totality of the circumstances, an objectively reasonable police officer would absolutely have had reasonable and articulable suspicion of criminal activity and was entirely justified in asking [] Williams for consent to search her vehicle."
On appeal, defendant raises the following points for our consideration:
POINT I
THE EVIDENCE AGAINST MR. GOODMAN MUST BE SUPPRESSED BECAUSE OFFICER CHOE LACKED SUFFICIENT SAFETY REASONS TO ASK THE CAR PASSENGERS OUT OF THE CAR, SEARCH AND ARREST THEM, BECAUSE THE OFFICERS WHO REQUESTED CONSENT TO SEARCH LACKED A REASONABLE AND ARTICULABLE SUSPICION TO BELIEVE THAT ANYONE IN THE CAR WAS ENGAGED IN OR ABOUT TO ENGAGE IN CRIMINAL ACTIVITY, AND BECAUSE THE SUBSEQUENT ONE HOUR AND TWENTY FIVE MINUTE STOP WAS NEITHER REASONABLE NOR MINIMALLY INTRUSIVE
A. Officer Choe Was Not Justified In Asking Kinsey and Goodman To Exit The Vehicle, Searching Their Persons and Arresting Them
B. The Trial Court Erred In Finding A Valid Consent Search
C. The Totality of the Circumstances Did Not Justify Such A Lengthy And Intrusive Stop
II.
We first note that our standard of review requires us to defer to the factual findings made by the motion judge. "Appellate courts reviewing a grant or denial of a motion to suppress must 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) (citing State v. Elders, 192 N.J. 224, 243 (2007)). "Deference to these factual findings is required because those findings are substantially influenced by [an] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Id. at 424-25 (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964) (internal quotation marks omitted)). We "cannot substitute [our] own findings merely because [we] would have drawn different inferences from the evidence." State v. Brown, 216 N.J. 508, 538 (2014). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). We review its conclusions of law de novo. State v. Rockford, 213 N.J. 424, 440 (2013) (citing State v. J.D., 211 N.J. 344, 354 (2012); State v. Gandhi, 201 N.J. 161, 176 (2010)).
Under the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, a warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement. State v. Alston, 88 N.J. 211, 230 (1981). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 904-06 (1968) (seizure of a person); cf. State v. Hempele, 120 N.J. 182, 216-17 (1990) (seizure of property).
The seizure of a person occurs in a police encounter if the facts objectively indicate that "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991) (internal quotation marks omitted)). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects . . . .'" Id. at 165 (quoting N.J. Const. art. I, ¶ 7).
As a preliminary matter, it is uncontested that the police were justified in stopping the vehicle in which defendant was riding after it made an illegal U-turn and failed to stop at a stop sign. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979) (recognizing the constitutional propriety of warrantless traffic stops if based upon articulable police suspicions of illegality); State v. Hickman, 335 N.J. Super. 623, 633-35 (App. Div. 2000) (same). Having directly observed the U-turn and the failure to stop, Choe had probable cause to believe that a traffic violation had occurred. See State v. Pavao, 239 N.J. Super. 206, 209 (App. Div.), certif. denied, 122 N.J. 138, cert. denied, 498 U.S. 898, 111 S. Ct. 251, 112 L. Ed. 2d 209 (1990); see also Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89, 95 (1996).
We next address defendant's argument that the police were not justified in asking the passengers to exit the vehicle. Defendant argues that the police did not have reason to suspect that the passengers were engaged in criminal activity, and that defendant was removed from the car and subsequently searched and arrested simply because the name he provided did not appear in the NCIC database. We disagree.
In Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977), the United States Supreme Court held that police have the right to demand that a driver stopped for a traffic violation exit the vehicle, even in the absence of furtive movements or evidence of criminal activity. The Court later extended this right to also apply to a vehicle's passengers. Maryland v. Wilson, 519 U.S. 408, 413-15, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41, 47-48 (1997). In doing so, it expressly recognized that "danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car." Ibid.
In State v. Smith, 134 N.J. 599, 610-11 (1994) our Supreme Court determined that Mimms's per se rule, as applied to a driver of a vehicle stopped for a traffic violation, passes state constitutional muster. The Smith court, however, declined to extend Mimms so broadly with respect to the vehicle's passengers. Rather, the Court determined that,
[t]o support an order to a passenger to alight from a vehicle stopped for a traffic violation, [] the officer need not point to specific facts that the occupants are "armed and dangerous." Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.In explaining why this heightened standard should apply to passengers, the Court stated:
[Smith, supra, 134 N.J. at 618.]
Ordering a passenger to leave the vehicle is distinguishable from ordering the driver to get out of the vehicle because the passenger has not engaged in the culpable conduct that resulted in the vehicle's stop. Although the State's interest in safety remains the same whether the driver or the passenger is involved, requiring a passenger to alight
from a car in the course of a routine traffic stop represents a greater intrusion on a passenger's liberty than the same requirement does on a driver's liberty. With respect to the passenger, the only justification for the intrusion on the passenger's privacy is the untimely association with the driver on the day the driver is observed committing a traffic violation. Because the passenger has not engaged in culpable conduct, the passenger has a legitimate expectation that no further inconvenience will be occasioned by any intrusions beyond the delay caused by the lawful stop. The intrusion on the passenger's privacy, therefore, is greater than it is on the driver's privacy.
[Id. at 615.]
We decline to consider defendant's argument that the police acted improperly in ordering Kinsey out of the vehicle, as Kinsey's appeal is not before us. We do note, however, that Kinsey was not wearing a seat belt, and he also appeared to Choe to potentially be in physical distress. Further, when asked for identification, he provided information that the officer readily ascertained was false.
Notably, the police initially only ordered Kinsey out of the car. It was not until defendant failed to heed Winneberger's direction to remain still and keep his hands visible, thus causing Winneberger concern for the officers' safety, that defendant too was ordered out of the vehicle. Importantly, also, during Winneberger's conversation with defendant he smelled the odor of raw marijuana in the vehicle. "New Jersey courts have [long] recognized that the smell of marijuana itself constitutes probable cause that a criminal offense ha[s] been committed and that additional contraband might be present." State v. Myers, ___ N.J. Super. ___, ___ (App. Div. 2015) (slip op. at 9) (quoting State v. Walker, 213 N.J. 281, 290 (2013) (citations and internal quotation marks omitted)). "Hence, cases have held that the odor of marijuana gives rise to probable cause to conduct a warrantless search of the persons in the immediate area from where the smell has emanated." Myers, supra, (slip op. at 11) (quoting State v. Legette, 441 N.J. Super. 1, 15 (App. Div. 2015) (additional citations and internal quotation marks omitted)).
We conclude that the totality of these circumstances created a heightened sense of awareness of danger warranting defendant's removal from the vehicle. Additionally, having smelled the odor of raw marijuana, the police clearly possessed not only the authority to conduct an investigative detention of the vehicle, but also probable cause to arrest defendant and the vehicle's other occupants.
Defendant next argues that the consent search of the vehicle was invalid because the police lacked a reasonable and articulable suspicion that the driver or passengers were engaged in criminal activity. This argument merits little discussion.
Consent is a well-recognized exception to the Fourth Amendment's search warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973). To be valid, however, a consent to search must be voluntary and knowing in nature. Id. at 222, 93 S. Ct. at 2045, 36 L. Ed. 2d at 860. In New Jersey, the person giving consent must first be advised of his right to refuse. State v. Johnson, 68 N.J. 349, 353-54 (1975).
More pertinent here, when police request consent to search during a motor vehicle stop, they must have a reasonable and articulable suspicion that the search will produce evidence of criminal wrongdoing. State v. Carty, 170 N.J. 632, 635, modified on other grounds, 174 N.J. 351 (2002); State v. Thomas, 392 N.J. Super. 169, 188 (App. Div.), certif. denied, 192 N.J. 597 (2007). That standard has been defined as "a particularized and objective basis for suspecting the person stopped of criminal activity[,]" and is a far lower standard than probable cause. State v. Stovall, 170 N.J. 346, 356 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996) (additional citations and quotation marks omitted)).
Valid consent to search may be obtained from one other than the suspect. State v. Suazo, 133 N.J. 315, 320 (1993); State v. Coyle, 119 N.J. 194, 215 (1990). Consent to search may be obtained from a third party who possesses common authority over the property to be searched, "or from a third party whom the police reasonably believe has authority to consent." State v. Maristany, 133 N.J. 299, 305 (1993).
In summary, the consent exception to the warrant requirement, as applied to the search of a motor vehicle, has three prongs. The State must prove: 1) the police had a reasonable and articulable suspicion of criminal activity; 2) the consent was voluntary; and 3) the person who granted consent had the authority to do so. Having reviewed the record, it is clear that all three prongs were met in this case.
Finally, defendant challenges the initial stop of the vehicle and the subsequent detention of its occupants as unreasonably long. We disagree.
Our Court has recognized that "[t]here is [no] litmus-paper test for . . . determining when a seizure exceeds the bounds of an investigative stop"; instead, when the duration of the detention is at issue, the proper question is "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant."
[State v. Coles, 218 N.J. 322, 344 (2014) (quoting State v. Dickey, 152 N.J. 493, 476-77 (1998)).]
Here, after the vehicle was properly stopped for traffic violations, Choe saw that Kinsey was not wearing a seatbelt. The officer also made observations that led him to conclude that Kinsey was possibly in physical distress. Choe continued to detain Kinsey because he did not have any identification documents on him and he provided false information about his identity. Under these circumstances, the police were permitted to "expend a brief but reasonable period of time to confirm" Kinsey's identity. Coles, supra, 218 N.J. at 346. Kinsey continued to provide additional false information, which further delayed the process. Defendant also provided identifying information that the police were unable to confirm and later proved to be false. Nonetheless, he was not subjected to the heightened intrusion of being removed from the vehicle until he failed to comply with the police instruction to keep his hands visible and the odor of marijuana was detected in the car. These further observations justified the ensuing police search of the entire vehicle pursuant to Williams's valid, voluntary, and unrestricted consent.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION