STATE OF NEW JERSEY v. PABLO CARVAJAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3240-05T42404-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PABLO CARVAJAL,

Defendant-Appellant.

____________________________________________

 

Submitted January 12, 2009 - Decided

Before Judges Carchman and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-02-00293.

De Luca and Taite, attorneys for appellant (Samuel R. De Luca, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Laura Perry, Assistant Prosecutor, on the brief).

PER CURIAM

After the denial of his motion to suppress, defendant Pablo Carvajal pled guilty to first-degree possession of a controlled dangerous substance (heroin) with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1). Judge Kevin Callahan sentenced defendant to a ten-year term of imprisonment with a two-year, three-month period of parole ineligibility. The judge also imposed the appropriate penalties, assessments and fees, and suspended defendant's driver's license for six months. We affirm.

The following facts are undisputed. A reliable confidential informant advised a New Jersey State trooper that a young Hispanic male in his late twenties or thirties, wearing light blue jeans and a light-colored shirt, was traveling to Union City from Miami on a La Cubana bus with a suitcase filled with narcotics. The informant also provided the arrival time of the bus. The trooper advised the Union City Police, who set up surveillance near the bus stop.

After arrival of the bus, the police observed an individual, who fit the description given by the informant, exit the bus. The police then approached the individual, later identified as defendant, to question him. During the questioning, the police became suspicious when defendant denied having any luggage. Defendant also showed signs of nervousness and stuttered as the police asked additional questions. Because of their suspicions, the police decided to verify with the bus driver defendant's name and that defendant had no luggage. The police discovered that defendant's driver's license and bus ticket bore different names. They then waited until all passengers had disembarked the bus and claimed their luggage. Remaining was defendant and an unclaimed large black duffle bag. A K-9 dog, sniffing the bag, reacted positively to it. The police then opened the bag and searched it. The search revealed several needles, what appeared to be prescription narcotics and a large quantity of rubber pellets containing a substantial amount of heroin.

Defendant filed a motion to suppress the evidence found in the bag. Judge Callahan denied the motion, finding the warrantless search valid because defendant denied ownership of the bag and, thus, abandoned it. The judge reasoned, in relevant part, that:

There's no factual [] discrepancy here as to whether or not [the bag] was abandoned or not. It certainly was abandoned, and therefore, if it's abandoned [] it was not his so what good would consent do.

If it's abandoned, if there's a denial of ownership, if there's an expressed denial of that ownership, which is clear and unequivocal, and it evinces his intent to relinquish ownership of the bag, then it must be deemed abandoned. I find that from the totality of the facts as I review them.

. . . .

From all of this and from what I review and the facts, defendant acted consistent with someone who had no ownership rights or interest in the bag even if it was his bag and wanted to convey that to the police. Therefore that in effect abandons the property, therefore no Fourth Amendment right attaches and consequently the motion fails.

Our review of a trial judge's findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give great deference to the trial judge's factual findings and will not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Id. at 471. We also give deference to the trial judge's credibility determinations. Id. at 474; Johnson, supra, 42 N.J. at 161.

In "reviewing 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. Elders, 192 N.J. 224, 243 (2007) (citations omitted). We will reverse only if we are convinced the trial judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting Johnson, supra, 42 N.J. at 162). "In those circumstances solely should [we] 'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]" and is subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Relying primarily on State v. Johnson, 193 N.J. 528 (2008), defendant argues that his failure to claim the bag in response to police questioning does not constitute abandonment. Thus, the judge erred in finding that he had abandoned the bag. We disagree.

Johnson involved an illegal search of a duffel bag in an apartment in which the defendant was arrested. Id. at 536-37. Defendant disclaimed ownership of the bag and its contents. Id. at 537. Five other people occupied the apartment, who may have had a proprietary interest in the bag. Id. at 550. The Court found that the defendant "did not forfeit the rights of the other occupants of the apartment or give the police a license to rummage through other people's effects." Ibid. Accordingly, the Court held that the bag in the apartment "was not truly abandoned because the police might still have easily determined its owner." Ibid. The Court also held that:

[I]f the State can show [by a preponderance of the evidence] that property was abandoned, a defendant will have no right to challenge the search or seizure of that property. Stated differently, a defendant will not have standing to object to the search or seizure of abandoned property. This represents a narrow exception to our automatic standing rule. For the purposes of standing, property is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property. That approach provides the strongest guarantee that the police will not unconstitutionally search or seize property, which has multiple apparent owners, merely because one person has disclaimed a possessory or ownership interest in that property.

[Id. at 548-49.] (emphasis added).]

Here, the police searched the bag outside the bus after all other passengers had disembarked and claimed their luggage. The remaining large black duffle was unclaimed with no other apparent or known owners. By disclaiming ownership of that bag, defendant knowingly and voluntarily relinquished any possessory or ownership interest in it. Because defendant abandoned the bag, the warrantless search was valid.

 
Based upon our careful review of the record, we are satisfied that the judge's findings are supported by sufficient credible evidence in the record and that he correctly applied the law.

Affirmed.

(continued)

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A-2404-07T4

February 11, 2009