STATE OF NEW JERSEY v. JAMES JOHNSON

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1192-07T41192-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES JOHNSON,

Defendant-Appellant.

_________________________________________________

 

Submitted February 25, 2009 - Decided

Before Judges Payne and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment

No. 06-01-0152.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Abby P. Schwartz,

Assistant Deputy Public Defender, of

counsel and on the brief).

Theodore F. L. Housel, Atlantic County

Prosecutor, attorney for respondent

(Peter J. Gallagher, Assistant County

Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant, James Johnson, appeals from the denial of his suppression motion, after which he pled guilty to the second-degree crimes of distribution of five ounces or more of cocaine, N.J.S.A. 2C:35-5a(1), and possession of a firearm having previously been convicted of distribution of a controlled dangerous substance, N.J.S.A. 2C:39-7. At sentencing, the State dismissed the firearms charge, and defendant was sentenced on the distribution charge to ten years in prison with five years of parole ineligibility.

On appeal, defendant argues as follows:

POINT I

THE PROOFS WERE INSUFFICIENT TO SHOW THAT DEFENDANT HAD GIVEN THE INVESTIGATORS CONSENT TO SEARCH HIS APARTMENT. AS SUCH, THIS SEARCH WAS IN VIOLATION OF HIS FOURTH AMENDMENT RIGHT AND HIS RIGHT PURSUANT TO ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES.

POINT II

SHOULD THIS COURT REVERSE THE DENIAL OF DEFENDANT'S MOTION TO SUPPRESS EVIDENCE THEN DUE PROCESS AND THE RIGHT TO A FAIR TRIAL REQUIRE THAT HIS PLEA BARGAIN BE VACATED.

At the suppression hearing in the matter, testimony was provided by Atlantic County Prosecutor's Office Investigator Daniel Kallen and by Sergeant Sean Clancy, the person overseeing the investigation of Johnson. The two witnesses, who were sequestered, testified in substantially similar terms to what had occurred.

The transcript of the hearing discloses that, prior to December 9, 2005, defendant sold cocaine to Atlantic County Prosecutor's Office Investigator Brian Fox on five occasions, eventually selling him in excess of five ounces of the drug. Having obtained an arrest warrant and a search warrant for his car, on December 9, 2005, the Atlantic City police and prosecutor's office personnel proceeded to the location of defendant's car, which was parked in the street in front of 38 North Rhode Island Avenue. Although the officers were uncertain where defendant lived, they located and arrested him at the Rhode Island Avenue address, a rooming house.

After defendant had been arrested and handcuffed and a cursory search of defendant's room had been made to determine if weapons were present, Clancy ordered Kallen to obtain a consent to search form from Fox, who remained in an unmarked car on the street. Upon Kallen's return with the form, it was read to defendant by Kallen while defendant was seated on a chair located at the foot of his bed. The form was a standard one, which clearly conveyed defendant's right to refuse consent to the search. After the form was read verbatim to defendant, he verbally consented to the search of his room, stating that he had "nothing to hide." Defendant's handcuffs were thereupon removed, and he signed the form, further indicating his consent to a search. The form was handed back to Kallen, who gave it to Fox. However, it was thereafter lost and could not be produced at the time of the suppression hearing. When defendant gave his oral consent, he was under arrest and handcuffed. Five officers were in defendant's room, which had the approximate dimensions of ten by fifteen feet.

The search of defendant's room disclosed some additional drugs of an unspecified identity and quantity, a forty-five- caliber handgun, and small zip-lock baggies. A further search of defendant's car did not disclose further incriminating evidence.

Following the hearing, the motion judge found the police testimony to be credible, although he found the loss of the form consistent with the police and prosecutor's habitually shoddy work. Having found defendant to have knowingly and voluntarily consented to the search, the judge denied defendant's suppression motion. We affirm.

"A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search of a home," State v. Domicz, 188 N.J. 285, 305 (2006), and it constitutes a "legitimate aspect of effective police activity." Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854, 863 (1973). Consent is a factual question to be determined from the relevant circumstances. State v. Koedatich, 112 N.J. 225, 264 (1988); State v. Pante, 325 N.J. Super. 336, 349 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). Following a careful review of the record, we are satisfied that the motion judge did not err in finding, on the basis of the testimony of Clancy and Kallen and despite the absence of a signed consent form, that clear and positive evidence established that valid consent had been given. State v. Johnson, 42 N.J. 146, 162 (1964).

Defendant argues on appeal that testimony that defendant gave his consent to search voluntarily was inherently incredible, since he must have been aware that any search of his room would disclose incriminating evidence. Defendant additionally urges us to consider that defendant had been arrested, he was handcuffed, and he was surrounded by five officers in a relatively small room. See State v. King, 44 N.J. 346, 352-53 (1965) (enumerating factors to be considered in determining whether consent was voluntary).

However, we note, as did the motion judge, that the descriptions given by the two State witnesses of the circumstances surrounding the search of defendant's premises were consistent in their details, despite the fact that neither witness was present during the testimony of the other. Moreover, the consent was given while defendant remained in his own room, a setting that has been found to be less coercive than that provided in an automobile stop. Domicz, supra, 188 N.J. at 306-07. Further, "many decisions have sustained a finding that consent was voluntarily given even though the consent was obtained under the authority of the badge or after the accused had been arrested." King, supra, 44 N.J. at 353.

 
As the Court observed in King: "The trial judge is in a better position to weigh the significance of the pertinent factors than is an appellate tribunal. He has the advantage of seeing and hearing the witnesses so that he can not only evaluate their credibility but also can gain a 'feel' of the case which the cold record denies to a reviewing court." Id. at 353-54. As a consequence, "an appellate tribunal in a criminal case should not disturb the trial court's findings of fact, whether underlying or ultimate, unless it is thoroughly satisfied that such findings are plainly unwarranted by the evidence in the record." Id. at 354 (citing Johnson, supra, 42 N.J. at 162-63). Because we find that the motion judge's factfinding was properly founded upon the record as a whole, we affirm.

Affirmed.

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A-1192-07T4

June 8, 2009