STATE OF NEW JERSEY v. DARRYL L. COOPER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6308-03T46308-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARRYL L. COOPER,

Defendant-Appellant.

_______________________________________________________________

 

Submitted on December 7, 2005 - Decided May 9, 2006

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Ind. No. 03-06-0799.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Robert Seelenfreund, Assistant Deputy

Public Defender, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent (Steven A. Yomtov, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

In a three-count indictment, defendant Darryl Cooper was charged with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count two); and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4) (count three).

Following an evidentiary hearing, defendant's motion to suppress evidence was denied on December 21, 2003. But on February 18, 2004, the trial court granted defendant's motion to suppress certain statements he made to the police. Prior to trial, the State's application to dismiss count three was granted. The jury found defendant guilty of counts one and two.

At sentencing on May 21, 2004, defendant's conviction for possession of heroin was merged into his conviction for possession of heroin with intent to distribute. Because he was a repeat drug offender, defendant was sentenced to a ten-year extended term with four years of parole ineligibility on count two, pursuant to N.J.S.A. 2C:43-6(f). This sentence was consecutive to a state prison sentence imposed in Mercer County for a similar drug offense.

On appeal, defendant makes the following arguments:

POINT I

THE MOTION TO SUPPRESS WAS IMPROPERLY DENIED AS THE STOP, DETENTION, SEARCH AND SEIZURE WERE UNCONSTITUTIONAL. MOREOVER, THE INEVITABLE DISCOVERY RULE DOES NOT APPLY IN THE CASE AT BAR AND EVEN IF IT DID, THE STATE DID NOT MEET ITS BURDEN OF PROOF OF CLEAR AND CONVINCING EVIDENCE. (U.S. CONST. AMEND. IV; N.J. CONST., ART. I Para. 12).

A) FACTS ADDUCED AT THE MOTION TO SUPPRESS HEARING.

B) THE TRIAL COURT'S FINDINGS AND LEGAL CONCLUSION.

C) THE POLICE DID NOT HAVE REASONABLE SUSPICION; THE MOTOR VEHICLE STOP WAS THEREFORE UNCONSTITUTIONAL.

D) THE ENTRY INTO THE CAR AND SEARCH THEREIN WERE UNCONSTITUTIONAL.

E) SHOULD THE COURT REJECT DEFENDANT'S ARGUMENT AND MAINTAIN THAT NEW JERSEY LAW RETAINS AN IDENTIFICATION SEARCH FOR CREDENTIALS AND/OR IDENTIFICATION, THE INSTANT SEARCH GROSSLY EXCEEDED THE PROPER SCOPE OF SUCH SEARCHES.

F) THE INEVITABLE DISCOVERY DOCTRINE DOES NOT APPLY IN THIS CASE.

POINT II

THE PROSECUTOR IMPROPERLY COMMENTED ON DEFENDANT'S SILENCE AT OR NEAR THE TIME OF HIS ARREST, BOTH IN HIS OPENING STATEMENT AND THROUGH THE DIRECT TESTIMONY OF OFFICER OLSSON, THEREBY VIOLATING THE STATE LAW PRIVILEGE AGAINST SELF-INCRIMINATION, THEREBY DENYING DEFENDANT A FAIR TRIAL. (U.S. CONST., AMEND V).

After reviewing the record and applicable law, we conclude that defendant's arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). But a few comments are in order.

The only witness to testify at the hearing on defendant's motion to suppress evidence was Patrolman Daniel Olsson, a member of the South Brunswick Police Department. While on patrol at approximately 3:00 p.m. on April 10, 2003, Olsson used the Mobile Data Terminal (MDT) in his patrol vehicle to check on the status of a license plate on a 1988 Chevrolet. The response Olsson received indicated that there was no record for that particular license plate. Olsson got the same response when his dispatcher used "the in-house computer" to check on the status of the license plate.

Based on the information he received from the MDT lookup, Olsson stopped the vehicle, which defendant was driving. There were no passengers in the vehicle. Olsson testified that after he asked defendant for his credentials, defendant "started to look and didn't verbally say anything. And then he said he didn't have anything." Olsson also testified as follows:

I knew that the plate wasn't supposed to be on that car based on the record check. So I asked him did these plates belong on the car. And his first response was yeah, hesitated for a second, and then he said, no, they don't belong on the car.

Q. What did you do at this point?

A. Well, I still didn't know who he was. And I wasn't sure of the status of the vehicle other than to know that the plates weren't supposed to be on the car. I again asked him for his driver's license. And I asked him did you have a driver's license, meaning not . . . with you, but do you have a driver's license for the State of New Jersey. And he said, no, I have one, but it's suspended was his response.

Olsson wanted to conduct a further computer search to determine whether defendant had ever been issued a New Jersey driver's license, and he asked defendant his name, date of birth, address, and Social Security number. Defendant gave his name as "Darryl Cooper," and he initially gave his date of birth as January 16, 1922, but then he said he meant January 16, 1968. He gave his address as 46 20th Street, Newark. Defendant also said that he could not recall his Social Security number. The computer search indicated that a Darryl Cooper with a middle initial of L. and a date of birth of January 22, 1968, resided at 745 19th Street in Newark. When Olsson asked defendant if he was Darryl L. Cooper, defendant replied "no, that's not me. And [he] went so far as to say I can't believe this, but Newark police actually [have] me mixed up with this other white guy . . . ." Olsson then asked defendant if he had anything with either his name or the car owner's name on it, and defendant answered "no." At this point, Olsson testified that he was "suspicious" because he still didn't know who defendant was and he was unable to determine who owned the car because the MDT search had indicated "no record found."

Olsson asked defendant to step out of the car so that he could see if there was "any kind of paperwork" in the vehicle that would identify who he "was speaking with on the roadside and who owned the car." As he was checking the driver's seat area, Olsson saw what appeared to be a "green fanny pack" partly sticking out from under the driver's seat. According to Olsson, he thought that the fanny pack might be a place where defendant "would keep a wallet or some I.D." When he started to slide it out from under the seat, he discovered that it felt "very solid and heavy." Olsson testified that he thought there was a weapon in the fanny pack:

Well, thinking that it was a weapon, not knowing who he was or anything about the car, still uncertain of his identity, I should say, I came out of the car, went back towards to the backup officer and Mr. Cooper. And I said what do you have . . . in the car? What do you have under your seat? And his response was not what I normally get if you ask that question of people on the side of the road. He kind of shrugged his shoulders, kind of looked off the side, and he didn't immediately respond. And that just heightened my concern that it was, in fact, a weapon that I thought was underneath the car [sic].

Q. Okay. So he responded with physical movements, but not verbally?

A. Correct.

. . . .

Q. Okay. What did you do at this point?

A. Well, thinking that it was a weapon, he was wearing a heavier coat at the time, if there's one in the car, I thought he may, in fact, also have one on his person. I asked the backup officer to go ahead and cuff him for our safety because we were standing on the side of the highway. I walked up and placed . . . my hand on his chest. Again, to prevent any kind of physical confrontation while he's being cuffed.

. . . .

Q. While you had your hand up, did you make any observations?

A. Well, at this time he was very nervous. You could feel . . . his heart was racing inside of his chest. I could feel that through even the coat and clothing he was wearing. He still hadn't said anything much at that point. So I had the backup officer secure him again for our safety. And based on that reaction and my observations, I thought that . . . a gun was in the vehicle.

I asked again what was in the car because I hadn't yet opened that fanny pack. And he said a phrase to me that I couldn't quite make out because he kind of under his breath he said either you got me or you got it. I couldn't quite make it out.

So again thinking that what I had found was a weapon, I went back to that vehicle and I opened that fanny pack thinking there could be either the I.D. I was originally looking for or the weapon. When I opened the pack, there was no identification in it. And it also was not what I thought it was. I thought it was a handgun. It turned out to be a steel bar, turned out to be a magnet.

As Olsson continued his efforts to locate information in the vehicle, one of the backup officers looked underneath the passenger's seat and found a plastic bag containing "several bundles of heroin." Following that discovery, defendant was Mirandized and transported to police headquarters. The car was impounded. At police headquarters, defendant admitted "he was Darryl L. Cooper with the 1/22/68 DOB." Based on that information, the police determined "he had outstanding warrants in the amount of $3,000."

We are satisfied that the police had a constitutional basis for the initial stop of the vehicle that defendant was driving. The police are justified in stopping a motor vehicle when they have "at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law . . . ." Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); accord State v. Murphy, 238 N.J. Super. 546, 553-54 (App. Div. 1990); see State v. Donis, 157 N.J. 44, 55 (1998) ("[P]olice officers randomly using MDT's should have the right to determine from a motorist's license plate the status of the vehicle and the driving status of the registered owner, i.e., whether the car is registered, stolen, and whether the registered owner is licensed."); State v. Pitcher, 379 N.J. Super. 308, 311 (App. Div. 2005) (holding that motor vehicle stop based on MDT check of license plate number was reasonable even though the database entry showing defendant's driver's license was suspended was erroneous), certif. denied, ___ N.J. ___ (2006).

After he was stopped, defendant could not produce a driver's license, proof of insurance, motor vehicle registration, or other evidence of ownership. Thus, Officer Olsson had an objectively reasonable basis to detain defendant "to assure that the car was driven only by a properly licensed driver and to confirm that it was not stolen." State v. Hickman, 335 N.J. Super. 623, 635 (App. Div. 2000). In similar circumstances, we have noted that "[t]he fact that the driver of a vehicle cannot immediately produce the vehicle's registration or proof of insurance supports a reasonable suspicion that the vehicle is stolen." State v. Holmgren, 282 N.J. Super. 212, 215 (App. Div. 1995). And that suspicion "authorizes a police officer to conduct a limited warrantless search of areas in the vehicle where such papers might normally be kept by an owner." Ibid.

Defendant, relying on State v. Lark, 319 N.J. Super. 618 (App. Div. 1999), aff'd o.b., 163 N.J. 294 (2000), contends that "the entry and search of the automobile was illegal." We do not agree. In Lark, there was no justification to search the passenger compartment because there was no reason to believe that the vehicle was stolen. The vehicle was stopped because it was being driven without a front license plate. Although the driver, Brent D. Lark, was unable to produce a driver's license, the owner of the vehicle, Jason Lewis, was a passenger in the vehicle and Lewis "promptly handed the officer a valid registration, insurance card and his own driver's license." 319 N.J. Super. at 621. "Hence, the officer could not reasonably conclude that the [vehicle] was stolen." Id. at 626. In the present matter, however, it was not unreasonable for the investigating officer to enter the vehicle to look for proof of ownership. See State v. Boykins, 50 N.J. 73, 77 (1967) ("A traffic violation as such will justify a search for things related to it. So, for example, if the operator is unable to produce proof of registration, the officer may search the car for evidence of ownership.").

Of course, the scope of the search is not unlimited. The search "must be reasonable in scope and tailored to the degree of the violation . . . [A] search to find the registration would be permissible if confined to the glove compartment or other area where a registration might normally be kept in a vehicle." State v. Patino, 83 N.J. 1, 12 (1980) (internal quotation marks omitted). In this case, the search for evidence of ownership was limited to the interior compartment of the vehicle, and we conclude that it was not unreasonable. See State v. Gray, 59 N.J. 563, 567-68 (1971) (the driver's failure to produce a registration, furtive movements, and other criminally suspicious activity justified entry of the vehicle and search of driver's gloves); State v. Hock, 54 N.J. 526, 533 (1969) (a missing registration plus the fact that the license plates on the car came from a different vehicle supported "a well-grounded suspicion that the car was stolen [and] warranted arrest of its occupants"), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

We also note that there was no valid basis to impound the vehicle in Lark because the passenger had produced valid credentials demonstrating proof of ownership. Here, however, defendant was alone, without a valid driver's license, registration, proof of insurance, or proof of ownership. Given these circumstances, it was entirely appropriate to impound the vehicle. State v. Dickey, 152 N.J. 468, 483-84 (1998). We are clearly convinced, as was the trial court, that the discovery of the contraband was inevitable, even absent the challenged search, after the vehicle was impounded and its contents inventoried. See State v. Holland, 176 N.J. 344, 361-62 (2003); State v. Sugar, 100 N.J. 214, 236-38 (1985).

Defendant also contends that the State deprived him of a fair trial by improperly commenting on his silence, in violation of his Fifth Amendment privilege to remain silent. During the assistant prosecutor's opening, he stated: "The defendant is asked, 'what do you have in the car?' He looks away. He does not answer." Subsequently, during the direct examination of Officer Olsson, Olsson testified that he asked defendant what was under the driver's seat of his vehicle, and defendant gave "a non-verbal response. He sort of kind of rolled his shoulders, and looked away from me." Although defendant objected to this portion of Officer Olsson's testimony, he did not object to the prosecutor's opening remark.

We do not communicate by words alone. 3 Wigmore on Evidence 789 (Chadbourn rev. 1970). In some cases, communication through gestures or other nonverbal conduct can be more effective than verbal communication. State v. Fioravanti, 46 N.J. 109, 119 (1965). A defendant may break his silence by communicating "through conduct or actions." State v. Adams, 127 N.J. 438, 453 (1992) (Handler, J., concurring).

"A suspect has a right to remain silent while in police custody or under official interrogation, in accordance with his state law privilege against self-incrimination." State v. Muhammad, 182 N.J. 551, 558 (2005). Moreover, this silence "cannot be used against him in a criminal trial." Ibid.; see also State v. Deatore, 70 N.J. 100, 115 (1976).

"[N]ot every judicial error will have the effect of vitiating an otherwise valid conviction." State v. Downey, 206 N.J. Super. 382, 394 (App. Div. 1986). Where no objection was made at trial, we will reverse only where the error is "clearly capable of producing an unjust result." R. 2:10-2; see also Muhammad, supra, 182 N.J. at 574. And we will disregard such an error where it is harmless beyond a reasonable doubt. State v. Macon, 57 N.J. 325, 340-41 (1971). Generally, where a prosecutor's references to the defendant's silence are only fleeting, constituting an insignificant part of the trial, and the evidence against the defendant is strong, such references will be considered harmless beyond a reasonable doubt. State v. Whitehead, 80 N.J. 343, 348 (1979); State v. Alston, 70 N.J. 95, 98 (1976); State v. Merola, 214 N.J. Super. 108, 120-122 (App. Div. 1986), certif. denied, 107 N.J. 91 (1987); State v. Marks, 201 N.J. Super. 514, 533-34 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986).

In this case, the evidence against defendant was strong, and the prosecutor mentioned defendant's nonverbal response only once during his opening statement. Although the trial court likely erred by permitting the prosecutor's comment, which defendant failed to object to, the error was not "clearly capable of producing an unjust result." R. 2:10-2. Regarding Officer Olsson's testimony, defendant's nonverbal rolling of the shoulders in response to Olsson's inquiry communicated to Olsson that defendant was claiming he did not know what was under the vehicle's driver's seat. Defendant's nonverbal response belies his assertion that he was exercising his right to remain silent. Adams, supra, 127 N.J. at 453. And Olsson's testimony, arguably, supported the defense presented at trial that defendant did not own the vehicle he was driving and was unfamiliar with its contents.

After reviewing the statements at issue, we conclude that they did not have the capacity to deprive defendant of a fair trial. State v. Daniels, 182 N.J. 80, 95-96 (2004); State v. Ramseur, 106 N.J. 123, 322-23 (1987).

 
Affirmed.

(continued)

(continued)

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A-6308-03T4

May 9, 2006