DOCKET NO. A-0963-14T1
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 13-09-0782. Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following the denial of his suppression motion, defendant Jose A. Vicente, Jr., pled guilty to third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and was sentenced to three years in prison in accordance with a negotiated plea agreement. Defendant now appeals, arguing that the warrantless search that revealed the cocaine violated his constitutional rights. We disagree and affirm.
Officer James Day of the Vineland Police Department and defendant testified at the suppression hearing. Day testified that in the period between November 2012 and early June 2013, three separate confidential informants told Day that defendant was selling drugs in Vineland. All three informants reported that defendant borrowed vehicles from third-parties to make his drug deliveries, and two of the informants told Day that defendant hid the drugs in between the cheeks of his buttocks. As part of his investigation, Day ran a check and learned that defendant's driver's license was suspended.
On June 14, 2013, Day was conducting checks at hotel parking lots, which were known locations for drug transactions. Day observed defendant enter a Lincoln Town Car and pull out of a hotel parking lot. Thereafter, Day radioed to other police officers to stop the motor vehicle because defendant's license was suspended.
After the car was stopped, Day approached and told defendant that he had been stopped because his license was suspended. Day also asked defendant who owned the car and defendant stated that he did not know. Day then told defendant that certain people had reported that he had been selling narcotics. In response, defendant told Day that he could search both the car and defendant's person. Day testified that he then presented defendant with a consent to search form, explained that defendant did not have to consent and could stop the search at any time. According to Day, defendant read and signed the form, which gave permission for a search of his person and vehicle.
Day searched the vehicle and another officer searched defendant. Day did not find anything in the vehicle, but the other officer told Day that he had felt something in between defendant's butt cheeks. Day then conducted an over-the-clothes search of defendant by running the blade of his hand up defendant's thighs and in between his buttocks. That search revealed a "bulge" or "knot" in between defendant's "butt cheeks," and Day testified that he believed the bulge or knot was narcotics. Day also testified that at no point during the searches did defendant ask the officers to stop.
After Day felt the bulge, he consulted with a superior officer and defendant was arrested and taken to the police station. At the station, defendant was read his Miranda rights and informed that he was going to be strip searched. In response, defendant stated that he would just hand it over and he pulled out five grams of crack cocaine.
Significant portions of defendant's testimony differed from the testimony of Officer Day. Defendant testified that several police vehicles pulled his car over. Day then approached, ordered defendant out of his car and began to search the vehicle. After nothing was found in the car, the officers then searched defendant several times without finding anything. Defendant went on to testify that he asked the officers to stop searching him, but they continued. While defendant acknowledged that he did sign a consent form, he testified that he signed the form after he and his vehicle had been searched.
At the conclusion of the evidentiary hearing, the judge denied defendant's motion to suppress. The judge found Day to be credible and accepted his testimony concerning the sequence of events. Specifically, the judge found that the initial stop of the vehicle was valid. The judge also found that when Day was questioning defendant, defendant voluntarily offered to allow a search of the vehicle and his person. The judge rejected defendant's version of the facts and found that the consent form had been presented and signed before the search. The judge also found that the search was a reasonable over-the-clothes pat down search and that defendant did not withdraw his consent prior to discovery of the bulge. Moreover, the judge found that the discovery of the bulge in defendant's buttocks, in combination with the information from the three confidential informants, gave the police officers probable cause to arrest defendant. Finally, the judge found that when defendant was brought back to the station and given his Miranda rights, he voluntarily turned over the drugs after he was informed that he would be strip searched.
On appeal, defendant argues:
POINT I: AS A CONSENT SEARCH INCIDENT TO A TRAFFIC STOP, THE POLICE WERE REQUIRED TO HAVE REASONABLE SUSPICION BEYOND WHAT WAS NECESSARY TO EFFECTUATE THE INITIAL TRAFFIC STOP. BECAUSE, UNDER THE TOTALITY OF THE CIRCUMSTANCES, THEY DID NOT, THE SEARCH IN THIS CASE WAS INVALID.
In reviewing a motion to suppress, we defer to the factual and credibility findings of the trial court, "so long as those findings are supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Deference is afforded "because the 'findings of the trial judge . . . 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. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "An appellate court should disregard those findings only when a trial court's findings of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). The legal conclusions of a trial court "are reviewed de novo." Id. at 263.
The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "There is a constitutional preference for" law enforcement officers to obtain a warrant from a neutral magistrate before conducting a search or seizure. See State v. Pineiro, 181 N.J. 13, 19 (2004); State v. Ravotto, 169 N.J. 227, 236 (2001). Among the exceptions to a search or seizure conducted without a warrant are: (1) an investigatory stop, State v. Coles, 218 N.J. 322, 342 (2014); and (2) a consent search, Elders, supra, 192 N.J. at 246.
An investigatory stop is permissible if it is "reasonable and justified by articulable facts." Coles, supra, 218 N.J. at 343. The burden is on the State to show "by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion." State v. Amelio, 197 N.J. 207, 211 (2008) (citing Pineiro, supra, 181 N.J. at 19-20), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). That reasonable suspicion standard "requires 'some minimal level of objective justification for making the stop.'" Id. at 211-12 (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). "The principal components of a determination of reasonable suspicion . . . [are] the events which occurred leading up to the stop . . ., and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion . . . ." State v. Stovall, 170 N.J. 346, 357 (2002) (alteration in original) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661-62, 134 L. Ed. 2d 911, 919 (1996)).
Applying these principles, we discern no basis for disturbing the motion judge's determination that the officers conducted a lawful investigatory stop. Day had checked and knew defendant's license was suspended. That information, coupled with seeing defendant driving, justified the motor vehicle stop.
Our Supreme Court has held that "law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle." State v. Carty, 170 N.J. 632, 635, modified on other grounds, 174 N.J. 351 (2002). In determining whether reasonable suspicion exists, a court should consider "the totality of the circumstances." State v. Gamble, 218 N.J. 412, 431-32 (2014). Those circumstances may also include consideration of information provided by a confidential informant "because 'a descriptive tip by an informant may contribute to a reasonable objective and particularized suspicion to serve as the basis for an investigatory stop.'" State v. Richards, 351 N.J. Super. 289, 300 (App. Div. 2002) (quoting State v. Caldwell, 158 N.J. 452, 467 (1999) (Handler, J., concurring)). Moreover, information provided by an informant, once corroborated by the observation of the police, can provide reasonable suspicion to justify an investigatory stop of a suspect in an automobile. See State v. Birkenmeier, 185 N.J. 552, 561-62 (2006).
Constitutional principles "require that consent must be voluntarily given and not the result of duress or coercion." State v. Lamb, 218 N.J. 300, 315 (2014). Because an analysis of consent is a fact-intensive inquiry, the Court has identified factors to be considered in determining voluntariness or coercion. State v. King, 44 N.J. 346, 352-53 (1965). The factors that tend to show voluntariness of a consent include: "(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 [or her] guilt before consent; [and] (3) that the defendant affirmatively assisted the police officers." Id. at 353 (citations omitted).
The factors that tend 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.
[Id. at 352-53 (citations omitted).]
Here, the motion judge credited and relied on the testimony of Officer Day. On the basis of that testimony, the judge found that defendant voluntarily offered to be searched without Day asking for consent. Day then informed defendant of his right not to consent and his right to withdraw the consent at any time. Thereafter, defendant was provided with a written consent to search form which he reviewed and signed.
Significantly, at the time the consent to search form was presented, Day had information that gave him reasonable suspicion that defendant was engaged in illegal drug activity. Three informants had identified defendant as a person selling drugs in Vineland. Day had then observed defendant at a location known for illegal drug transactions. The informants had also told Day that defendant used cars of third-parties to deliver the drugs and defendant had just acknowledged to Day that he did not know who owned the car he was driving. Thus, even if defendant had not initially volunteered to a consent search, there was sufficient additional reasonable and articulable suspicion of criminal wrongdoing to justify Day asking for consent to search. See State v. Rodriguez, 172 N.J. 117, 127-28 (2002) (stating that reasonable articulable suspicion is established "when there has been 'independent corroboration by the police of significant aspects of the informer's predictions.'" (quoting Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 2417, 110 L. Ed. 2d 301, 310 (1990))).
In addition, in considering the factors that tend to show voluntariness, defendant's offer to be searched even before a request was made indicates that he had reason to believe that Day would find no contraband. In contrast, the motion judge did not find, nor was there any showing of, any factors indicating coercion. Consequently, the evidence supports the motion judge's finding that the consent was given voluntarily.
The evidence also supports the motion judge's findings that the search conducted by Day was reasonable and within the scope of the consent, and that defendant did not withdraw his consent before the search revealed the bulge. There was also evidence supporting the motion judge's finding that once the officers discovered the bulge between defendant's buttocks, probable cause existed for his arrest and that defendant then voluntarily surrendered the drugs after he had been given his Miranda rights and informed that he would be strip searched.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION