STATE OF NEW JERSEY v. JAMES L. GROWALT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0099-09T40099-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES L. GROWALT,

Defendant-Appellant.

________________________________

 

Submitted June 16, 2010 - Decided

Before Judges Cuff and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-10-2404.

Jacobs & Barbone, P.A., attorneys for appellant (Stephen F. Funk, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, James Growalt, appeals from a July 24, 2009 judgment of conviction. He contends there was insufficient evidence to issue an arrest warrant, he did not knowingly and voluntarily consent to the search of his apartment, and his video-taped statement was the product of an illegal arrest. We affirm.

On October 9, 2008, defendant was indicted and charged with first-degree robbery in violation of N.J.S.A. 2C:15-1 (Count One); third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(2)(Count Two); fourth-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(4)(Count Three); second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a (Count Four); second-degree possession of a weapon, in violation of N.J.S.A. 2C:39-5b (Count Five); second-degree possession of a weapon by a convicted person, in violation of N.J.S.A. 2C:39-7 (Count Six); and second-degree possession of a weapon by a convicted person, in violation of N.J.S.A. 2C:39-7 (Count Seven). The first six counts arise out of an incident that occurred on June 20, 2008. Count Seven refers to the recovery of a loaded gun from defendant's home on June 21, 2008. After unsuccessfully moving to suppress his statement and the loaded gun, defendant pled guilty to Count Seven and was sentenced to ten years in prison with a period of five years of parole ineligibility consistent with his negotiated plea agreement.

I

On Friday, June 20, 2008, Detectives Fred Spano and Heath Per were assigned to investigate a reported armed robbery that occurred inside a condominium. Spano and Per interviewed the male victim and defendant's ex-girlfriend, the female owner of the condo in which the incident occurred. They learned that defendant's ex-girlfriend invited the victim to spend that night in her condo.

A couple of days before the incident, defendant called his ex-girlfriend several times. She permitted Spano and Per to view her cell phone, and they confirmed that defendant sent several text messages to her. The messages show that defendant threatened to come to her condo. Defendant's ex-girlfriend admitted having phone contact with defendant that night.

In the early morning hours, defendant made an unannounced visit at the condo. He entered the condo and noticed the male victim. Through their investigation, Spano and Per learned that defendant pulled a gun, hit the victim over the head with it, and stole the victim's cell phone.

Looking at a photo array, the victim identified defendant as the person who strongly resembled the suspect who robbed him. Spano and Per learned that defendant had an extensive juvenile and adult criminal history involving thefts, burglaries, weapons offenses, and robberies.

Based on the investigation, Spano and Per concluded that probable cause existed and sought a warrant for the arrest of defendant charging him with robbery, assault, and weapons offenses. Spano certified that defendant robbed the victim and possessed a firearm with the purpose of using it unlawfully. A municipal court judge authorized the issuance of the warrant pursuant to Rule 3:3-1(c)(1).

On Saturday, June 21, 2008, defendant called Spano, admitted his involvement in the condo incident, and stated he would report to the police station to discuss it. When defendant arrived that day, police advised him of the charges and placed him under arrest. Defendant's current girlfriend accompanied him and gave Spano the keys to defendant's apartment. Police administered defendant his Miranda warnings and placed him in a cell. That day he gave a recorded statement to Spano and Per. Twice during the statement, defendant advised them that he had no problem with a search of his apartment and he had nothing to hide.

After the recorded statement, defendant spoke to his attorney on the phone. Defendant's attorney told Spano that defendant had "nothing to hide" and that if defendant wanted to consent to a search, he had "no problem with that."

Spano, Per, and defendant drove to his apartment to conduct the search. Officers from the local police department met them in front of the apartment. Spano and Per attempted to review a consent to search form with defendant in front of his apartment. To avoid a scene, defendant invited them into the apartment to review the consent form in detail. Defendant reviewed the form, signified he understood it, and signed it before the search began. The police conducted the search while defendant was present.

Spano located a loaded Brico handgun in the kitchen closet. Spano and Per did not identify the brand name of the gun with defendant. At the conclusion of the search, they all left the apartment, and defendant blurted out, "I don't know how that Brico . . . got in there."

II

At his motion to suppress the gun and statement, defendant made two arguments. First, he contended there was insufficient evidence to support the arrest warrant. Specifically, defendant argued claimed the detectives did not present exculpatory evidence to the municipal court judge. If they had, defendant argued there would not be a basis to charge him with robbery. Instead of an arrest warrant, he argued that a summons should have been issued. If one was issued, then he would not have been arrested and placed in custody. Defendant reasoned that since the arrest warrant should not have been issued, his recorded statement to the police should be suppressed. Second, defendant contended that he failed to knowingly and voluntarily consent to search his apartment because he did not know the location of his keys.

The motion judge found that there was probable cause to issue the arrest warrant based on the photographic identification of defendant and the statements from defendant's ex-girlfriend and victim. The judge found that defendant knowingly and voluntarily waived his Miranda rights and gave consent to search his apartment.

III

On appeal, defendant raises the following points:

POINT I

THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A FINDING OF PROBABLE CAUSE FOR THE ISSUANCE OF THE WARRANT AGAINST MR. GROWALT PURSUANT TO R. 3:3-1[,] AND THE ARREST OF MR. GROWALT WAS THEREFORE ILLEGAL.

POINT II

MR. GROWALT DID NOT KNOWINGLY AND VOLUNTARILY CONSENT TO ALLOW THE POLICE SEARCH OF HIS APARTMENT.

POINT III

MR. GROWALT'S STATEMENT WAS ILLEGALLY OBTAINED BECAUSE IT WAS THE PRODUCT OF AN ILLEGAL ARREST.

In reviewing a motion to suppress evidence, this court must

defer to the trial court's factual findings underlying its

decision, "so long as those findings are supported by sufficient

credible evidence in the record." State v. Elders, 192 N.J.

224, 243 (2007) (internal quotations omitted). We may not

substitute our own conclusions regarding the evidence, even in a

"'close'" case. State v. Locurto, 157 N.J. 463, 471 (1999)

(quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also State v. Robinson, 200 N.J. 1, 15 (2009) (quoting Elders, supra, 192 N.J. at 244).

IV

We begin by addressing the crux of defendant's argument: that his arrest was illegal due to insufficient evidence to demonstrate probable cause; and, that his video-taped statement was illegally obtained. He argues that a summons, rather than an arrest warrant, was appropriate and concludes that his video-taped statement and the gun should, therefore, be suppressed. We disagree.

At the suppression hearing, defense counsel was permitted to cross-examine Spano about the information provided to the municipal judge who authorized the arrest warrant. He was given an opportunity to demonstrate why the arrest warrant was invalid, but failed to so.

Probable cause is "more than mere suspicion but less than

legal evidence necessary to convict." Sanducci v. City of

Hoboken, 315 N.J. Super. 475, 480-81 (App. Div. 1998) (citing State v. Mark, 46 N.J. 262, 271 (1966)). It is a "'well-grounded suspicion'" that an offense has been committed. State v. Moore, 181 N.J. 40, 45-46 (2004) (quoting State v. Nishina, 175 N.J. 502, 515 (2003)). "Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879, 1890 (1949) (alterations in original) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 (1925)). Accord Moore, supra, 181 N.J. at 46 (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)). In determining whether probable cause existed, a court should consider the "totality of the circumstances," ibid., including the police officer's "'common and specialized experience,'" Schneider, supra, 163 N.J. at 362 (quoting State v. Contursi, 44 N.J. 422, 431 (1965)).

The record shows that there was sufficient credible evidence to establish probable cause that a robbery occurred and that defendant possessed a weapon for an unlawful purpose. The victim identified defendant in a photographic array, and the statements from the victim and condo owner directly implicated defendant.

Further, there is sufficient credible evidence in the record to conclude that an arrest warrant was appropriate, rather than a summons. Rule 3:3-1(c)(1) provides that "[a] summons rather than an arrest warrant shall be issued unless . . . the defendant is charged with . . . robbery . . . [or] any crime involving the possession or use of a firearm[.]"

Here, defendant was charged with, among other things, robbery and possession of a weapon for an unlawful purpose. Based on the record before us, defendant's arrest was not illegal because there was sufficient credible evidence demonstrating probable cause that a robbery occurred and that defendant committed it using a gun. As a result, his video-taped statement was not illegally obtained.

V

Defendant also argues that he did not knowingly and voluntarily consent to the search of his apartment. He contends that his consent was not voluntary and knowing because (1) he did not know where his keys were; (2) Spano presented the consent to search form after he was in the apartment; and (3) Spano suggested that the police were in the process of securing a warrant.

Defense counsel concedes that there are no cases even remotely on point to suggest that knowledge of who may possess his keys is essential to a knowing and voluntary consent to search. Defendant's knowledge about the location of his keys is not determinative on the issue of his knowing and voluntary consent to search his apartment.

Earlier in the day, defendant's girlfriend gave Spano the keys. Spano testified that the keys were kept in police custody at the police station. Spano obtained the keys to prevent others from entering the apartment and removing or destroying any evidence. Defense counsel suggests that the police used the keys to plant the gun in defendant's apartment. That suggestion is better presented at a trial, rather than a challenge to the validity of defendant's consent to search his apartment.

The record demonstrates that Spano and Per intended to review the consent to search form with defendant when they arrived in front of his apartment. The record demonstrates, however, that defendant, not Spano or Per, suggested that they review the form in the apartment.

Defendant implies that Spano misled him at the police station into believing that Spano was in the process of securing a search warrant. The record demonstrates that Spano merely posed a hypothetical that he could take measures to secure a warrant, but did not say that he was in the process of doing so.

We reject defendant's argument that his consent to search was neither voluntary nor knowing. During his video-taped statement he said twice that the police could search his apartment. He explained that he had nothing to hide. Spano confirmed with defendant's attorney that defendant had no objection to the search. Before the search commenced, defendant was advised that he had the right to refuse giving his consent to search. He was aware that the officers did not have a search warrant and that the court could refuse to issue a search warrant. He knew he could withdraw his consent at any time for any reason. There is no evidence that defendant was coerced. There is sufficient credible evidence to show that defendant knowingly and voluntarily consented to the search of his apartment. Therefore, the judge properly denied defendant's motion to suppress the gun.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

On appeal, defendant argues that the municipal judge did not see photographs of the victim which allegedly showed minor injuries; however, those photographs were not marked for identification and were not introduced in evidence. As such, they are not part of the record and were not considered.

(continued)

(continued)

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A-0099-09T4

August 3, 2010