Opinion
DOCKET NO. A-4224-13T4
09-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAYMOND RODRIGUEZ, a/k/a RAYMOND RODRIQUEZ, JR., RAYMOND RODRIGUEZ, JR., and RAYMOND RODRIGUEZJR., Defendant-Appellant.
Margaret R. McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. McLane, of counsel and on the briefs). Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-01-0146. Margaret R. McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. McLane, of counsel and on the briefs). Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief). PER CURIAM
Defendant Raymond Rodriguez was charged with three counts of second-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b) (Counts One, Two, and Four); and fourth-degree possession of a defaced firearm, contrary to N.J.S.A. 2C:30-3(d) (Count Three). On October 25 and 30, 2013, the trial court held a pre-trial evidentiary hearing on defendant's motion to suppress the evidence seized, and ultimately denied defendant's motion. On November 21, 2013, defendant entered a guilty plea to Count One in exchange for the State's recommended sentence of three years' imprisonment including one year without parole eligibility.
Defendant appeals from the judgment of conviction entered on January 10, 2014. Defendant raises the following issues on appeal:
POINT IFor the reasons that follow, we affirm.
BECAUSE THE INVESTIGATIVE STOP OF DEFENDANT WAS NOT BASED ON A REASONABLE, OBJECTIVE BELIEF OF CRIMINAL ACTIVITY, THE STOP VIOLATED DEFENDANT'S FOURTH AMENDMENT RIGHTS AND THE FRUITS OF THE SUBSEQUENT SEARCH MUST BE SUPPRESSED.
POINT II
BECAUSE CARLOS ROSARIO DID NOT GIVE VOLUNTARY CONSENT, THE SEARCH OF HIS VEHICLE VIOLATED THE FOURTH AMENDMENT AND THE FRUITS OF THE SEARCH MUST BE SUPPRESSED.
On May 10, 2012, Sergeant John T. Swack, Jr. (Swack) was on patrol in Gloucester Township, New Jersey as watch commander. Swack has been a police officer for twenty years, with training and experience related to firearms and narcotics transactions. At approximately 2:40 a.m., Swack drove by a store which he described as being in a "busy area" with several "smash and grab burglaries," and "a lot of narcotics arrests" in the store parking lot. He observed two cars parked side by side with their lights off in the parking lot of the store which had closed at 10:00 p.m. Swack also saw a male, Carlos Rosario (Rosario), standing outside of his car in the heavy rain while speaking to a passenger inside the other car. When he again drove by two or three minutes later and saw Rosario was still standing in the heavy rain, Swack decided to enter the parking lot.
There was conflicting testimony from Swack about whether he activated both his overhead lights and siren while entering the parking lot. Immediately upon seeing the patrol car, Rosario entered his Toyota Corolla and attempted to "back out and leave." Swack prompted Rosario to stop his car by using his siren and ordering him to park where he was. Defendant was a passenger in Rosario's car. Swack obtained identification from Rosario and defendant, along with two females present in the other vehicle. He observed the females to be "crying" and "screaming" that they did not do anything. Rosario and defendant appeared nervous, would not make eye contact, and were stuttering when speaking.
The trial judge did not make a specific finding regarding when the siren was first activated.
After checking the subjects' identification, Swack learned of an active arrest warrant for defendant. Soon thereafter, approximately five officers arrived to secure the scene and assist in taking defendant into custody. When asked by Officer Jason Smith whether he possessed any needles or other objects that may injure the officers, defendant responded in the negative. However, defendant voluntarily admitted that he possessed a handgun in the trunk of Rosario's car.
Rosario was subsequently removed from his car, handcuffed, and placed into a separate patrol car than defendant for officer safety. While in the patrol car, Rosario was asked for consent to search his Toyota Corolla. He subsequently signed a consent to search form, permitting a search of his entire vehicle. The search revealed a pellet gun in the glove compartment, two loaded pistols in the trunk, and approximately eleven vials of suspected marijuana.
Rosario signed the form as Daniel Pella, an alias. --------
The trial judge had an opportunity to review a video of the stop in court, and found the testimony of both Sergeant Swack and Officer Smith to be credible. When reviewing a determination on a motion to suppress, we "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)). We do so, noting that those findings "are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Mann, 203 N.J. 328, 336-37 (2010) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). The trial court's factual findings are "entitled to deference unless they were clearly mistaken or so wide of the mark that the interests of justice require appellate intervention." Elders, supra, 192 N.J. at 245 (citation and internal quotation marks omitted). However, legal determinations based on those findings are afforded no deference and are subject to our de novo review. State v. Coles, 218 N.J. 322, 342 (2014).
We turn to defendant's contention that the trial judge erred by denying the motion to suppress the evidence seized in the warrantless search of Rosario's automobile.
An investigatory stop is valid "if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." State v. Pineiro, 181 N.J. 13, 20 (2004) (citing State v. Nishina, 175 N.J. 502, 510-11 (2003)). A determination of reasonable suspicion is based on a totality of the circumstances and is "highly fact-sensitive." Nishina, supra, 175 N.J. at 511. See also State v. Stovall, 170 N.J. 346, 356 (2002). When evaluating the totality of the circumstances, "courts are to give weight to the officer's knowledge and experience as well as rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Citarella, 154 N.J. 272, 279 (1998) (citation and internal quotation marks omitted).
Notably, "[t]he fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as a reasonable person would find the actions are consistent with guilt." Id. at 279-80 (citation and internal quotation marks omitted). We are also guided by the Supreme Court of the United States which described reasonable suspicion as requiring "some minimal level of objective justification for making the stop." Nishina, supra, 175 N.J. at 511 (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989)).
There is no question that the officer entered the lot with his overhead lights on and that Rosario quickly got in his car in an attempt to flee the scene. The officer had both his siren and lights on when he stopped the vehicle from leaving. Defendant argues that the officer had no basis for an investigatory stop before Rosario started to flee, stressing that if the officer's siren was on when he entered the lot, it was an investigatory stop. However, we find that even before Rosario started to flee, the officer had a reasonable suspicion of criminal activity justifying the stop. It is therefore not relevant when the siren was activated.
Moreover, defendant contends that Swack lacked reasonable suspicion of criminal activity, relying on State v. Khun, 213 N.J. Super. 275 (App. Div. 1986). In Khun, the police officer observed three people standing in the parking lot of a bar in a high-crime area during the mid-afternoon. Id. at 277. When the defendant saw the officer's van enter the lot, he got into his car and attempted to drive away. Ibid. At that point, the officer sounded his siren and stopped the defendant. Ibid. This court found that there was not reasonable suspicion to justify an investigatory stop, and reversed. Id. at 282-83.
However, the record in this case is distinct from Khun and establishes that Swack had reasonable suspicion that criminal activity was afoot. It was 2:40 a.m. when the officer observed defendant. The store was closed many hours before. It was a high crime area, and drug sales were common in the store's parking lot. Swack observed the two vehicles parked side by side in the parking lot had their lights off. Rosario was standing outside of his car in heavy rain, speaking with an occupant of the other car. In contrast, the stop in Khun occurred during the day in the parking lot of a business that was open, and therefore, where people could reasonably be expected to congregate. We find there were specific articulable facts that supported an investigatory stop even before Rosario attempted to flee. The reasonable suspicion needed for such a stop is less than the probable cause needed to arrest a person. Nishina, supra, 175 N.J. at 511.
Next, we address the question of whether the search of the vehicle was lawful. Prior to requesting consent to search a motor vehicle they have stopped, "law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing." State v. Carty, 170 N.J. 632, 635, modified on other grounds, 174 N.J. 351 (2002). Moreover, the state bears the burden of showing by "clear and positive testimony" that consent to conduct the warrantless search was given voluntarily. State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000) (citing State v. King, 44 N.J. 346, 352 (1965)). In evaluating voluntariness, a "prerequisite to a lawful consent search [is] that a person have knowledge of his right to refuse to give consent." Elders, supra, 192 N.J. at 240-41 (citation omitted).
The Supreme Court in State v. King listed factors to assist in determining coercion or voluntariness of consent. Factors "tending to show that consent was coerced" include:
(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, [and] (5) that consent was given while the defendant was handcuffed.However, the Supreme Court cautioned against reliance on the presence or absence of any one of these factors, noting that "many decisions have sustained a finding that consent was voluntarily given even though consent was obtained under the authority of the badge or after the accused had been arrested." Ibid. (citation omitted).
[44 N.J. at 352-53 (citations omitted).]
Here, following defendant's admission that he possessed a handgun in the trunk of Rosario's car, Rosario was removed from his car, handcuffed, and placed into a separate patrol car than defendant for officer safety. While in the patrol car, Rosario was asked for consent to search his Toyota Corolla. He subsequently signed a consent to search form, permitting a search of his entire vehicle.
Although Rosario was in handcuffs, the totality of the evidence supports a finding that the consent to search was given voluntarily. Rosario did not refuse consent at any time, nor was his consent given amid claims of innocence. Most importantly, he was presented with a written consent to search form which he signed. Although the officer did not read the consent form to Rosario, the form itself includes notice of the right to refuse the search and includes the scope of the search as Rosario's "entire car." After being provided with an opportunity to review the form, Rosario signed it. Therefore, we agree with the trial court that Rosario's consent to search his vehicle was voluntary.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION