Opinion
DOCKET NO. A-4396-14T4
02-09-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERIC Y. SARAVIA, a/k/a ERIK SARAVIA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Y. Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Nugent and Currier. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 14-03-0642. Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Y. Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following the trial court's denial of his motion to suppress a handgun and marijuana seized by police from his car's trunk, defendant Eric Y. Saravia pled guilty to a weapons offense and was sentenced to a custodial term. On appeal, he contends:
POINT IWe affirm.
[DEFENDANT'S] CONVICTION OF UNLAWFUL POSSESSION OF A HANDGUN, IN VIOLATION OF N.J.S.A. 2C:39-5b, IS ILLEGAL BECAUSE THE POSSESSION CHARGED OCCURRED AT A TIME WHEN POSSESSION UNDER THAT STATUTE WAS NOT A CRIME. (Not Raised Below)
POINT II
THE MOTION TO SUPPRESS EVIDENCE FOUND IN THE TRUNK OF [DEFENDANT'S] CAR SHOULD HAVE BEEN SUPPRESSED BECAUSE [THE OFFICER] DID NOT HAVE VALID CONSENT TO SEARCH THE TRUNK.
A Camden County grand jury charged defendant in a seven-count indictment with fourth-degree possession with intent to deliver a controlled dangerous substance (CDS), marijuana, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(12); third-degree possession of a CDS, cocaine, N.J.S.A. 2C:35-10(a)(1); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(e); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); second-degree possession of a firearm while committing a CDS offense, N.J.S.A. 2C:39-4.1(a); and possession of a prohibited device, a firearm silencer, N.J.S.A. 2C:39-3(c). Following his indictment, defendant moved to suppress a baton, marijuana leaf, and handgun seized by police from his car. He also moved to suppress a grow light, generator, ventilation system, thermometer, two marijuana plants, cocaine, a pipe, empty narcotics baggies, body armor, a vest cover, a firearms silencer, firearms, magazines, and ammunition seized by police from his home. The trial court denied defendant's motion as to the evidence seized from his car but granted the motion as to the evidence seized from his home.
The order denying the motion in part states "[t]he motion is denied as to the evidence found within the vehicle, specifically the baton, marijuana leaf and the handgun." The accompanying opinion states "[t]he defendant did not challenge the admissibility of the baton found in the driver's door . . . ." --------
Thereafter, defendant pled guilty to the indictment's third count, unlawful possession of a weapon. In exchange for defendant's plea, the State agreed to dismiss all remaining counts of the indictment and recommend a five-year prison term with three and one-half years of parole ineligibility. The trial court sentenced defendant in accordance with the plea agreement and ordered he forfeit his handgun, provide and pay for a DNA sample, and pay appropriate fines and penalties. This appeal followed.
The State presented one witness at the suppression hearing, Winslow Township Patrolman Matthew Thomas Gibbons, who had been a police officer for seven years. Officer Gibbons had undergone Northeast Counter Drug Enforcement training related to the recognition and handling of narcotics, and he had attended other narcotics classes through the local police academy. He had also conducted hundreds of arrests involving marijuana.
On October 8, 2013, at 12:16 p.m., while patrolling in the Sicklerville section of Winslow Township in a marked police car, Officer Gibbons noticed a car with its driver's side brake light out. He pulled the car over. There were two males in the car. Defendant was driving.
The officer asked the two men for their credentials, which they readily produced. While running a warrant check, Officer Gibbons learned the passenger had two active warrants. He asked the passenger to step out of the car and placed him under arrest. After handcuffing the passenger, Officer Gibbons conducted a search incident to arrest and found a small glass vial containing marijuana in the passenger's front pocket. The officer placed the passenger in the back of the patrol car, secured the evidence, and returned to defendant's car.
After returning to defendant's car, while speaking to defendant, Officer Gibbons detected the odor of raw marijuana and observed "a black expandable-type police baton" in the driver's side door compartment. The officer asked defendant to step out of the car and walked him to the back of the vehicle. At this point, a second officer, Patrolman Valentino, arrived.
Defendant explained why he had the baton, and Officer Gibbons asked if defendant would consent to a search of his car. Defendant responded "yes." The officer read defendant his rights from a consent-to-search form and then gave defendant the form so he could read it to himself and ask questions. Defendant asked no questions, reviewed the form, and signed it. Before defendant signed the form, Officer Gibbons had asked defendant for consent only once. Officer Gibbons described defendant as calm, low-keyed, and very cooperative the entire time.
The form gave Officer Gibbons permission to conduct "a complete search of the vehicle." The form stated, in part:
I, Eric Saravia, have been informed that I have a Constitutional Right to refuse to allow law enforcement officers to search my property or property over which I exercise control without a search warrant, that I have the right to refuse consent to a search, or to stop the search at any time, that law enforcement officers would respect my refusal to consent to a search, and . . . anything uncovered by the search could be used as evidence against me or another party.
Officer Valentino stood with defendant at the rear of the car while Officer Gibbons searched the car's interior. Finding nothing in the car's interior, Officer Gibbons secured the baton and began to search the trunk. It was "difficult" to get into the trunk because the lever on the bottom of the seat was broken and the key did not work. Defendant advised Officer Gibbons there was no way to get into the trunk, that defendant did not use the trunk, and that the trunk contained only junk. Nevertheless, the officer maneuvered the lever until a knob moved. He had to ask defendant to step away from the car because defendant's right arm "was basically lounging on the trunk[.]" The officer was able to open the trunk.
In the trunk, the officer discovered tools, "other objects," and a black backpack with a loaded handgun. He also discovered "a piece of plastic, and wrapped inside . . . was a fresh green moist marijuana leaf and bud." The leaf was unusually fresh and "appeared to have been picked . . . within the last hour or so." "It wasn't wilted, or dried, or anything." The officers placed defendant under arrest, handcuffed him, and advised him of his Miranda rights.
After testifying about the events culminating in defendant's arrest, Officer Gibbons testified about the events culminating in the search of defendant's home. We need not recount the latter testimony because the trial court suppressed the evidence seized from defendant's home and the State has not appealed from the court's decision.
Defendant testified at the suppression hearing. He stated when Officer Gibbons returned after arresting the passenger and placing him in the patrol car, the officer asked if defendant had contraband in his car. Defendant responded "no." According to defendant, the officer asked him to get out of the car. When defendant stepped out, Officer Gibbons noticed the baton in the driver's side door panel and asked defendant if he would consent to a search. Defendant initially said no. In response, Officer Gibbons said "he would have canines come out to the scene, and eventually get a warrant anyway. And, if that was the case, and he had to wait, . . . the search would be more invasive, so [defendant] agreed to the search through the consent." Defendant did not believe the search would include the glove compartment or trunk.
Defendant testified he told Officer Gibbons, "there was nothing but junk in the trunk, and that I didn't use it very often, that I rather he not look in there." Defendant also testified he "physically [tried] to prevent the trunk from being opened" because he did not want the officer to search there. The officer ordered defendant to step away from the trunk. Defendant ultimately cooperated, because he felt he had no choice. "He's a police officer. He's armed. I'm not. What am I supposed to do?" Officer Gibbons searched the trunk, found the handgun and marijuana, and placed defendant under arrest. Defendant then testified about the events leading to and resulting in the search of his home.
Following the hearing, the court issued an order granting defendant's motion as to evidence seized from his home but denying the motion as to evidence seized from his car. In a written opinion accompanying the order, the court concluded Officer Gibbons provided and explained a consent to search form to defendant after requesting his permission to search the car. Defendant signed the form, which stated he had been informed of his "right to refuse to consent to a search or to stop the search at any time[.]" The court noted the form permitted the officer to conduct a "complete" search of the car, which defendant did not attempt to limit. Further, the court found defendant did not refuse consent before signing the form, provided the officer with a key to the car, and stood by the officer as he conducted the search.
In response to defendant's argument that he told Officer Gibbons not to search the trunk, thereby revoking his consent, the court concluded "[t]he action of . . . defendant moving from his position against the trunk and stepping back at the request of the officer is [inconsistent] with . . . [defendant's] alleged desire . . . to stop the search." The judge found the officer's testimony that defendant did not revoke his consent to be credible, did not find defendant's testimony credible, and denied the motion as to the evidence found in the trunk.
We first address defendant's second argument challenging the trial court's denial of his motion to suppress the evidence seized from his car. In reviewing a motion to suppress, "we accord deference to the factual findings of the trial court[.]" State v. Scriven, 226 N.J. 20, 32 (2016). That is particularly so as "to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). If our review satisfies us the trial court's findings could reasonably have been reached on sufficient, credible evidence present in the record, our task is complete and we will not disturb the result. Id. at 162. Our review of the trial court's legal conclusions is plenary. State v. Rockford, 213 N.J. 424, 440 (2013).
"A warrantless search is per se unreasonable unless it falls within one of a few, well-defined exceptions[,]" one of which is "a search conducted pursuant to consent." State v. Maristany, 133 N.J. 299, 305 (1993) (citations omitted). Thus, a warrantless search of an automobile is permissible under the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution if the individual involved gives consent. State v. Carty, 170 N.J. 632, 638-39, modified on other grounds, 174 N.J. 351 (2002). However, "unless there is a reasonable and articulable basis beyond the initial valid motor vehicle stop to continue the detention after completion of the valid traffic stop, any further detention to effectuate a consent search is unconstitutional." Id. at 647.
If a law enforcement officer has a reasonable and articulable basis beyond the initial motor vehicle stop for requesting an individual's consent to search the vehicle, the individual's consent must be given knowingly and voluntarily. State v. Johnson, 68 N.J. 349, 354 (1975). "The burden is on the State to show that the individual giving consent knew that he or she 'had a choice in the matter.'" Carty, supra, 170 N.J. at 639 (quoting Johnson, supra, 68 N.J. at 354).
Here, Officer Gibbons had a reasonable and articulable basis beyond the initial motor vehicle stop to request defendant's consent to search the car. The officer had observed a police-like baton in the car and had smelled the odor of raw marijuana. The officer read defendant the consent form, defendant read the consent form, and defendant signed the consent form voluntarily, without coercion. Further, the State established through the officer's testimony that defendant was calm and cooperative.
Defendant cites the factors noted by the Court in State v. King, 44 N.J. 346, 352-53 (1965), and argues the trial court erroneously analyzed six of those factors and failed to analyze two others. In King, the Court enumerated five factors "tending to show that the consent was coerced": consent was given by an individual already arrested, consent was obtained despite a denial of guilt, the accused had initially refused to consent to the search, the search resulted in seizure of evidence the accused knew would be discovered, and consent was given while the defendant was handcuffed. Ibid. Factors "considered as tending to show the voluntariness of the consent" are: consent was given by an accused having reason to believe the police would find no contraband, the accused admitted his guilt before consent, and the defendant affirmatively assisted the police officers. Id. at 353.
We are unpersuaded by defendant's argument. Defendant, in essence, disagrees with the weight the court gave to the King factors it considered. For example, the court noted defendant was neither handcuffed nor under arrest when he consented to the search. Implicitly acknowledging the accuracy of these observations, defendant argues that because Officer Gibbons had removed him from the car, observed the baton, an unlawful weapon, and smelled marijuana, defendant knew his arrest was imminent. Defendant insists these circumstances placed him in the same position as if he had been arrested. However, our standard of review does not permit second-guessing of the weight a trial court gave to countervailing evidence. Rather, our task is to determine whether the court's findings of fact and credibility determinations could reasonably have been reached on sufficient, credible evidence in the record. Johnson, supra, 42 N.J. at 162. Here they were.
Defendant also argues the court made no findings concerning two of the King factors. The existence or absence of certain factors, however, is "not determinative of the issue." King, supra, 44 N.J. at 353. Rather, each case depends upon its own facts, rendering a factor of great significance in one circumstance to be "of slight significance in another." Ibid.
Our review of the record reveals that, like most cases, there was a multitude of facts to be considered by the trial court concerning the voluntariness of defendant's consent; and, that the court appropriately weighed the evidence and determined, based on the totality of the circumstances, defendant knowingly and voluntarily consented to the search.
We turn to defendant's first point, namely, he could not have been convicted of unlawful possession of a handgun during the time L. 2013, c. 117, "An Act Concerning the Possession of Certain Firearms" (the Act), was in effect. The Act provided in pertinent part:
1. Any person who has in his possession a handgun in violation of subsection b. of N.J.S. 2C:39-5 or a rifle or shotgun in violation of subsection c. of N.J.S 2C:39-5 on the effective date of this act may retain possession of that handgun, rifle, or shotgun for a period of not more than 180 days after the effective date of this act. During that time period, the possessor of that handgun, rifle, or shotgun shall:
(1) transfer that firearm to any person lawfully entitled to own or possess it; or
(2) voluntarily surrender that firearm pursuant to the provision of N.J.S.A. 2C:39-12.
[L. 2013, c. 117.]
Neither defendant nor anyone else raised an issue concerning the Act during defendant's plea colloquy. More significantly, defendant never filed a motion to withdraw his guilty plea. We consider the record before us to be inadequate to resolve the issue. There is no competent evidence, for example, defendant had the handgun in his possession on the effective date of the Act. Accordingly, we decline to address the issue. We do so without prejudice to allow defendant to file a motion to withdraw his guilty plea. Should he do so, the trial court, in the first instance, will have the opportunity to evaluate the motion under the appropriate standard of review and consider, among all other relevant factors, defendant's argument concerning the Act.
Affirmed. 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