STATE OF NEW JERSEY v. RAYMONTE S. LOVE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4209-08T44209-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAYMONTE S. LOVE,

Defendant-Appellant.

__________________________________

 

Argued April 14, 2010 - Decided

Before Judges Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-12-1552.

Kimmo Hussain Abbasi, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Abbasi, on the brief).

Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

Defendant Raymonte S. Love appeals his conviction for first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), and third-degree possession of a CDS, contrary to N.J.S.A. 2C:35 10(a)(1), as well as the resulting sentence of twelve years of incarceration, with a four-year period of parole ineligibility. We affirm.

I.

We glean the following facts and procedural history from the record, including the transcripts of the suppression hearing, trial, and sentencing.

On June 7, 2006, at approximately 1:00 a.m., Police Officer Joseph Abrusci observed and clocked a vehicle speeding on Interstate Route 80 in Mount Olive Township. He testified that Victoria Klebon, the driver, had a fixed stare straight ahead while driving. As he pursued the vehicle, he observed the rear-seat passenger on the driver's side acting nervously and the front-seat passenger, Love, bending forward and reaching down to the area between his seat and the passenger door.

When the vehicle came to a stop, Abrusci approached the passenger side. He saw a brown paper bag on the rear seat, another paper bag on the floor in the rear, and a third paper bag between the front passenger door and the front passenger seat where Love was sitting. Abrusci checked the bags in the backseat area because the backseat passenger had moved his hands off his lap when Abrusci was approaching. He wanted to make sure there were no weapons or anything else that could present a problem. Abrusci then asked Klebon for her credentials.

When Klebon handed her credentials to him, her hands were shaking. Abrusci asked Klebon to step out of the car so he could question her further. They walked to the rear of her car. At that point, another Mount Olive police officer arrived on the scene.

Abrusci questioned Klebon about her itinerary that night. She explained that she had driven from Scranton, Pennsylvania into New York City to visit a friend the previous day and that they were all returning to Scranton. Abrusci understood her to mean that she, Love, and the third passenger had left Scranton together on the previous day. The other officer remained with Klebon while Abrusci returned to the vehicle.

Abrusci began speaking with the backseat passenger and asked him for identification. He produced a New York driver's license. When Abrusci asked the backseat passenger what he had been doing that day, the passenger's only response was that he was "chillin." As he spoke with the backseat passenger, Abrusci detected a slight odor of burnt marijuana and the odor of alcoholic beverages in the car.

Abrusci then spoke with Love and asked about the paper bag between his seat and the door. Love denied knowing anything about it. Abrusci requested that Love get out and walk to the front of the car, where he asked Love what he and the others had been doing. Love responded that they had picked up the third passenger in New York. Abrusci placed Love in his patrol car, without handcuffs, and told Love that he was not under arrest. Abrusci explained that Love was placed in the patrol car while he checked a little further into what was going on.

After Abrusci took Love out of the car, but before he attempted to obtain consent to search the vehicle, he inspected the contents of the brown paper bag between the front passenger seat and the car door and discovered that it contained "cigar innards," which he testified, based on his experience and training regarding illegal drugs, indicated that the insides had been removed from a cigar so that the wrapper could be used to smoke marijuana.

Abrusci placed the third passenger in the patrol car with Love and then sought Klebon's consent to search the car. He did so because he believed there were drugs in the car, based on the nervous behavior of the passengers, the redness of their eyes, the odor of the burnt marijuana, the cigar innards, and the inconsistent stories about the occupants' activities. When Klebon agreed to the search, Abrusci obtained a consent-to-search form from his car and went over the form with Klebon. The consent form itself refers to the right to refuse a consent to search and recites that the police officer has explained that right to the person signing the form.

After Klebon signed the form, Abrusci thoroughly searched the front and back interior of the car, as well as the trunk. He found three bags of cocaine, each weighing three and one-half ounces, in the trunk.

Love was indicted in December of 2006 for first-degree possession with intent to distribute, count one, and third-degree possession, count two. His motion to suppress the evidence seized at the time of the motor vehicle stop was denied in June 2007. The motion judge explained his reasons as follows:

Well, I think the State bears the burden by a preponderance of credible evidence, and it seems to me if there wasn't probable cause, the officer certainly had a reasonable and articulable suspicion to carry this matter beyond just an investigation of a traffic violation.

I do not believe that it would have been necessary to obtain a search warrant to open those paper bags that were in plain view of the officer when he was involved with his investigation. I think that strains the requirement of reasonable conduct on the part of the officer under these circumstances, and with the observations of the officer, of the occupants being nervous, making these movements with the inconsistent versions that were offered by the occupants of the vehicle with regard to their travel itinerary, and the observations of the officer in observing the two individuals who were the passengers in the vehicle in terms of their eyes -- and he did this, of course, based upon his extensive training and experience to which he testified -- and the smell of the alcoholic beverage and marijuana . . . on each of the passengers, I'm satisfied that these facts support the actions of the officer in requesting the consent form from the owner operator. So, the Court will deny the defendant's application.

Love was convicted on both counts following a five-day jury trial in September and October 2008. Sentencing took place on November 14, 2008, before a different judge. The judge merged count two into count one. He found the following aggravating factors: (3) the risk that defendant will commit another offense, (6) defendant's prior criminal record and seriousness of the offenses, and (9) the need for deterrence. N.J.S.A. 2C:44-1(a)(3), (6), (9). He also found mitigating factor (11) excessive hardship to defendant or his dependents. N.J.S.A. 2C:44-1(b)(11). He determined that the aggravating factors clearly outweighed the mitigating factor and declined to sentence Love in the second-degree range, as defense counsel had requested. The sentence imposed, twelve years of incarceration with a four-year period of parole ineligibility, was at the lower end of the first-degree range of ten to twenty years.

This appeal followed.

II.

Love raises the following issues on appeal:

POINT I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE.

A. The evidence must be suppressed as the consent to search provided by Victoria Klebon to Officer Abrusci was not made knowingly or voluntarily.

B. The evidence must be suppressed as the contents of the brown paper bags that were searched by Officer Abrusci, prior to obtaining the consent to search, were not in plain view.

C. The evidence must be suppressed as no exigent circumstances existed for Officer Abrusci to search the vehicle without first obtaining a warrant.

POINT II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL AFTER THE CLOSE OF THE STATE'S CASE AS THE EVIDENCE WAS NOT SUFFICIENT TO WARRANT DEFENDANT'S CONVICTION OF POSSESSION WITH INTENT TO DISTRIBUTE CDS IN VIOLATION OF N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1).

POINT III. THE SENTENCE IMPOSED ON DEFENDANT'S CONVICTION OF FIRST DEGREE POSSESSION WITH INTENT TO DISTRIBUTE CDS, IN VIOLATION OF N.J.S.A. 2C:35-5(a)(1) AND N.J.S.A. 2C:35-5(b)(1) AND THIRD DEGREE POSSESSION OF CDS, IN VIOLATION OF N.J.S.A. 2C:35-10(a)(1) WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

We turn first to Love's argument that the motion judge should have suppressed the evidence. Love argues that Abrusci lacked probable cause for any search, that the purported consent given by Klebon was not voluntary or knowing, that the contents of the paper bags searched by Abrusci prior to receiving the consent were not in plain view, and that there were no exigent circumstances justifying a warrantless search.

The Supreme Court has explained the standard of review applicable to a trial court's decision on a motion to suppress as follows:

Our analysis must begin with an understanding of the standard of appellate review that applies to a motion judge's findings in a suppression hearing. As the Appellate Division in this case clearly recognized, an appellate court reviewing a motion to suppress 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, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
 
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007).]

Our review of a judge's legal conclusions, however, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Handy, 412 N.J. Super. 492, 498 (App. Div.), certif. granted, ___ N.J. ___ (2010).

Klebon's vehicle was stopped for speeding. "It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997). "To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor-vehicle violation occurred." State v. Locurto, 157 N.J. 463, 470 (1999). Based upon Abrusci's testimony, there was clearly a factual and legal basis for the stop itself.

The United States Constitution and New Jersey Constitutions guarantee the right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, 7. A warrantless search is presumed invalid unless it falls within a recognized exception to the warrant requirement. State v. Alston, 88 N.J. 211, 230 (1981). The burden is upon the State to validate a warrantless search. State v. Wilson, 178 N.J. 7, 12-13 (2003). "Because our constitutional jurisprudence evinces a strong preference for judicially issued warrants, the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure 'falls within one of the few well-delineated exceptions to the warrant requirement.'" Elders, supra, 192 N.J. at 246 (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)).

A.

Prior to requesting permission to search the entire car, Abrusci looked into the three paper bags he observed inside. Two were in the back seat and the third was in the front passenger area. Love argues that those searches were unlawful, and further argues that the taint of that initial search carries over to vitiate the consent for the subsequent search of the entire car. The State counters that the search of the paper bags was permissible under the plain-view doctrine and the automobile exception to the search warrant requirement. Although the bags themselves were in plain view, their contents were not. Consequently, the plain-view doctrine alone cannot justify the search.

In State v. Pena-Flores, 198 N.J. 6, 28-30 (2009) (footnote and some citations omitted), the Supreme Court described the parameters of the automobile exception as follows:

Thus, in accordance with "our unwavering precedent," the warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant. The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle.

Exigency must be determined on a case-by-case basis. No one factor is dispositive; courts must consider the totality of the circumstances. How the facts of the case bear on the issues of officer safety and the preservation of evidence is the fundamental inquiry. There is no magic formula--it is merely the compendium of facts that make it impracticable to secure a warrant. In each case it is the circumstances facing the officers that tell the tale.

Legitimate considerations are as varied as the possible scenarios surrounding an automobile stop. They include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk. As we have previously noted, "[f]or purposes of a warrantless search, exigent circumstances are present when law enforcement officers do not have sufficient time to obtain any form of warrant." State v. Johnson, 193 N.J. 528, 556 n.7 (2008) (emphasis added) (citing Warden v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 1645-46, 18 L. Ed. 2d 782, 787 (1967)).

We are satisfied that the stop of the vehicle for a traffic violation was unplanned and that there was cause for Abrusci to be concerned that there might be weapons in the paper bags, given the furtive movements and nervous conduct he witnessed. The "protective sweep" exception to the warrant requirement permits an officer with a reasonable belief that the person is armed and dangerous to conduct a limited search for weapons. Terry v. Ohio, 392 U.S. 1, 26-27, 88 S. Ct. 1868, 1882-83, 20 L. Ed. 2d 889, 909 (1968); State v. Roach, 172 N.J. 19, 27 (2002). The facts in this case support such a conclusion.

Although Abrusci removed Love from the car, and proximity to the third bag prior to checking it for weapons, we do not find that fact to be determinative under the circumstances of this case. We conclude that the applicable search and seizure law was not offended by the police officer's checking all three bags for weapons.

B.

The actual contraband in this case, three bags of cocaine weighing three and one-half ounces each, was found during Abrusci's search of the trunk. At the suppression hearing, the State argued that the search of the trunk was consensual. In fact, the State conceded that "to get into the truck . . . the police officer [needed] a warrant or [Klebon's] consent."

The motion judge found that Abrusci had a sufficient basis to ask for the consent. Given the detection of the odor of burnt marijuana, the redness of the occupants' eyes, the occupants' nervous and furtive conduct, and the apparent inconsistencies in the occupants' explanations of their activities, we agree that Abrusci had a reasonable and articulable suspicion to believe that Klebon, or more likely one of her passengers, had engaged in criminal activity, and that his request for Klebon's consent to the search of the entire vehicle was proper. See State v. Carty, 170 N.J. 632, 647 (2002).

The issue then becomes whether the consent was voluntary and knowing. State v. Johnson, 68 N.J. 349, 354 (1975). We accept, as we must, the motion judge's finding that Klebon was not coerced. That finding is supported in the record. The real issue here is whether the waiver was "knowing."

Although the police officer need not tell the person from whom consent is sought that there is a constitutional right to refuse, the State is nevertheless required to demonstrate "knowledge on the part of the person involved that [she] had a choice in the matter." Ibid. The proof must be "by clear and positive testimony." State v. King, 44 N.J. 346, 352 (1965); State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000); State v. Douglas, 204 N.J. Super. 265, 277 (App. Div.), certif. denied, 102 N.J. 378 (1985).

We conclude that the required proof is found in the consent form itself. Just above Klebon's signature, the form has a paragraph, with Abrusci's name filled in, acknowledging that the police officer explained the right to refuse consent. See State v. Binns, 222 N.J. Super. 583, 589-90 (App. Div.), certif. denied, 111 N.J. 624 (1988).

C.

We have reviewed Love's remaining contentions and conclude that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

Love contends that there was insufficient evidence to warrant a conviction for possession with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), and that the trial court erred in denying his motion for a judgment of acquittal on that charge.

A court will enter a judgment of acquittal only "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The standard to be applied to determining such a motion is set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967):

[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

Under Rule 3:18-1, the trial court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). We apply the same standard. State v. Harris, 384 N.J. Super. 29, 52 (App. Div.), certif. denied, 188 N.J. 357 (2006).

We are satisfied that, under the applicable standard, the record as a whole supports the trial judge's decision denying the motion. There was expert testimony that the quantity of drugs found in the vehicle was indicative of a purchase for distribution rather than personal use. The jury was not required to accept the defense's suggestion that the amount was simply an instance of bulk purchasing for personal use.

Finally, Love contends that his sentence was excessive. Having reviewed the transcript of the sentencing, at which the judge balanced both aggravating and mitigating factors to arrive at a sentence at the lower end of the sentencing range, we are convinced that the sentence imposed here was adequately explained and is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 364-66 (1984).

 
Affirmed.

The third-degree possession was merged into the first-degree crime at sentencing.

Nervous and furtive behavior in itself would not have been a sufficient basis. State v. Carty, 170 N.J. 632, 648 (2002).

(continued)

(continued)

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A-4209-08T4

August 12, 2010