STATE OF NEW JERSEY v. DAVID RIVERA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4385-09T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DAVID RIVERA,

Defendant-Respondent.

________________________________

November 15, 2010

Submitted: October 27, 2010 - Decided:

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-12-1112.

TheodoreJ. Romankow,Union County Prosecutor, attorney for appellant (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

On leave granted, the State appeals from the trial court's grant of defendant's suppression motion as to the items seized from his car and his subsequent incriminating statement to the police. The State argues the consent to search was executed voluntarily by defendant, and challenges several of the court's factual findings. We reverse.

We note the following salient facts adduced from the testimony and evidence presented at the suppression hearing during which only Detective James Diorio of the City of Elizabeth Police Department testified. Defendant, known to Detective Diorio as a convicted drug dealer with a suspended driver's license, caught the attention of the detective who was driving an unmarked car behind defendant at approximately 5:30 p.m. on August 4, 2009. Defendant stopped his minivan in the middle of the street in a "high narcotics area," a man walked up to his car, both of them looked furtively around, the man handed defendant a white plastic shopping bag with handles, and defendant handed him what appeared to be currency. Believing defendant picked up "a large quality of drugs," the detective radioed backup and followed defendant a short distance to his house. The officer parked down the block to hide his undercover car, and an unmarked police car containing four officers pulled behind and "blocked" defendant's minivan in his driveway, "to conduct a motor vehicle stop." Detective Diorio joined the officers. All five men were identifiable as officers, with badges around their necks and some wearing police-related clothing.

The detective testified he next observed defendant getting out of the driver's seat and walking towards the back of the car talking to Detective Malone. Detective Diorio heard defendant say he had "no problem" allowing the police to search his van. The detective gave a standard "Permission to Search" form to Detective Malone, who completed it, and defendant signed it at 5:35 p.m., thereby expressly authorizing the police to search his "complete motor vehicle" and acknowledging the permission was given "freely and voluntarily" after being informed he had the "right to refuse th[e] search and/or seizure." According to the detective, all weapons were holstered and no one threatened defendant physically or verbally into signing the form. Nor was defendant handcuffed until shortly after the search. The form was admitted into evidence.

The detective related that the search revealed a brown paper bag containing both seven empty vials and a CVS bag inside with a prescription bottle of Tussionex in the name of defendant's girlfriend and a pharmacy receipt.1 Relying on his experience, Detective Diorio explained that Tussionex is a "controlled" cough medicine sold on the street in small bottles, which people ingest or mix with other drugs to get high.

The search also revealed a white shopping bag that was in "plain view" of the police, containing a pair of sneakers and located on the front passenger's floor. The testimony did not reveal whether the contents of the bag were visible to the police or which item was recovered first.

Defendant was arrested on drug charges and later charged additionally with motor vehicle offenses. Although not testified to, the record reflects that defendant confessed at headquarters.

Detective Diorio's report was used to refresh his recollection and was the subject of discrete questions. It was not admitted into evidence. Nor was any purported comment by defendant regarding the contents of the white bag the subject of any testimony or argument by counsel. However, both the prosecutor and defense counsel had referenced the following paragraph in their pre-hearing briefs and the police report had been appended to the State's brief. The report stated:

Det. Smith approached the drivers side of the vehicle and he identified himself as a police officer. He explained to [defendant] what I had had just observed and [defendant] claimed he had just purchased a pair of sneakers from a black man on Catherine St. for twenty dollars. Det. Malone asked him if he would give us permission to search his vehicle and he repeatedly stated, "sure, search all you want[;] I only have these sneakers." I approached the vehicle with the permission to search form and . . . [defendant] signed the form. . . .

The court granted defendant's motion to suppress. The court found as a fact the officers knew what was in the white bag before requesting defendant's consent to search, referencing the details of defendant's comment about the sneakers contained in the report. The court acknowledged the statement "wasn't testified to" but was in the prosecutor's papers. The court continued:

State v. Carty [ 170 N.J. 632 (2002)], cited by the defense . . . [holds] consent search[es] during a lawful motor vehicle stop are not valid unless there is reasonable and articulable suspicion to believe that the motorist has engaged in or is about to engage in criminal activity.

. . . .

Now in this particular case it seems to me that once the . . . officers knew what was in th[e] allegedly white bag, and he explained to them that it was sneakers, once they knew what was in the bag that was allegedly the drug delivery that their right to ask for a search and their right to search th[e] vehicle ended.

. . . .

The entire thing from my point of view . . . was pretextual. They had no right to go further than to find out what was in that white bag. When they found what was in the white bag that was the end of the matter. And the search is therefore illegal and I will suppress the evidence obtained from the search.

When pressed by the prosecutor about its reliance on facts not testified to, the court responded that even if defendant's statement about the sneakers was not made, "[a]ll [the police] were interested in was what was in the bag . . . [which] was a pair of sneakers. . . . [E]ven if the consent were valid for purposes of that bag they had no consent to search the whole vehicle."

The court also stated that when defendant was given the consent search, he was surrounded by four or five police officers in his driveway and defendant's driveway and car were "blocked in by the police behind him." Without expressly finding these facts rendered defendant's consent involuntarily, the court concluded:

There is no reason for either a search or that the search was not voluntarily given. No reasons for the confiscation of any alleged contraband.

Finding the consent and search invalid, the court ruled that defendant's confession was inadmissible as the fruit of the poisonous tree.

On appeal, the State argues: (1) Carty is inapplicable and the court erred in considering the issue of reasonable articulable suspicion as this was not a consent search emanating from a motor vehicle stop; (2) even if Carty applies, the police had at least a reasonable articulable suspicion, if not probable cause, when they asked defendant for consent to search the minivan; (3) the court improperly considered facts not in the record; and (4) the consent to search was voluntarily given by defendant.

We are satisfied the court's findings "are so clearly mistaken that the interests of justice demand intervention and correction." State v. Elders, 192 N.J. 224, 244 (2007) (citations and quotation marks omitted). We have our doubts that Carty applies where defendant was already stopped in the familiar surroundings of his driveway when he was approached by the police, thus he had the freedom to refuse to consent to the search of his minivan and to retreat to his house.2 Moreover, although Detective Diorio knew defendant was violating motor vehicle laws by driving while his license was suspended, the request for consent was based on the suspicious transaction Detective Diorio observed between defendant and the other man. However, we need not decide that issue because we are satisfied the police had at least a reasonable and articulable suspicion of criminal activity, i.e., "a particularized and objective basis for suspecting the person stopped of criminal activity." See State v. Stovall, 170 N.J. 346, 356 (2002) (citation and quotation marks omitted); see also State v. Pineiro, 181 N.J. 13, 25 (2004). Here, a veteran police officer observed defendant, who he knew had a criminal record for illegal narcotics activities, exchange money for a large plastic bag under unusual circumstances in a high drug-trafficking area. Contrary to the court's assessment, it is immaterial that defendant is a known drug dealer as he easily could have been purchasing his drug supply for later sale. There was no evidence before the trial court that the officers' suspicions were dispelled before they requested consent to search the minivan. See State v. Wilson, 178 N.J. 7, 14 (2003) (holding that a trial court deciding a motion to suppress involving a warrantless search must rely solely on the evidence presented at the suppression hearing); State v. Tavares, 364 N.J. Super. 496, 501 (App. Div. 2003) (same). At the suppression hearing Detective Diorio neither stated nor insinuated that the officers knew what was in the white bag until the search. Even if we conclude defendant's comment regarding the sneakers was properly considered because it was contained in both parties' briefs and, arguably, was relied upon by defense counsel as an acknowledged fact and thus not addressed at the suppression hearing, defendant's consent to search was still validly obtained. The police report only reflects that defendant represented there were sneakers in the bag and does not state that the officers actually saw the sneakers in the bag before they asked defendant for consent to search the minivan.

We are satisfied the State has proven voluntariness of the consent "by clear and positive testimony" based on the totality of the circumstances. State v. King, 44 N.J. 346, 352 (l969); State v. Chapman, 332 N.J. Super. 452, 466-67 (App. Div. 2000), certif. dismissed without prejudice, 167 N.J. 624 (2001). It is undisputed defendant signed the standard consent to search form developed in response to State v. Johnson, 68 N.J. 349 (1975), and the consent was given before the search began. See Hornberger v. ABC, 351 N.J. Super. 577, 600 (App. Div. 2002) (holding that consent given after a search has already begun is considered neither voluntary nor meaningful). By his signature, defendant authorized the police to perform a "complete motor vehicle" search and acknowledged he knew of his right to refuse consent and voluntarily relinquished that right. Johnson, supra, 68 N.J. at 353-54. Thus, the consent was facially "unequivocal and specific." King, supra, 44 N.J. at 352 (citation and internal quotations marks omitted).

The record does not support a finding that police conduct on the scene crossed the line into coercion that would vitiate defendant's written consent. See id. at 352-53 (listing non-exhaustive factors to be considered in determining if consent was coerced, such as consent obtained after initial requests for consent to search were denied and consent being given while defendant was handcuffed). The only factors that would give a court pause were the presence of five officers and the police car parked behind defendant's minivan in the driveway. However, contrary to the court's finding, the record does not suggest that defendant was "surrounded" by all the officers when he gave his consent. See Chapman, supra, 322 N.J. Super. at 456, 467 (finding consent to search car and contents was not coerced where, among other factors, three troopers were present). Nor was any testimony or evidence presented that before defendant consented to the search, he requested that the officers move their car and was refused, or that defendant attempted to drive away and was prevented from doing so. See King, supra, 44 N.J. at 353 (finding that no one factor is dispositive as the issue of voluntariness depends on the "totality of the particular circumstances" of the case).

We also disagree with the court's ruling that consent to search beyond the white bag was invalid because it was based on a pretext. Even if the officers had first searched the white bag and seen the sneakers, Detective Diorio's observations and prior knowledge of defendant's drug activity could have served as the basis for a reasonable suspicion that defendant had removed items from the bag before his interaction with the police.

Reversed.

1 According to the police report, the brown bag was located on the front passenger's seat. There was no testimony as to its location.

2 The Court in Carty expressly limited its holding to "consent searches pursuant to a stop for a traffic infraction." Carty, supra, 170 N.J. at 654. In doing so, the Court recognized the distinct disadvantage of a motorist detained at the side of the road, who would generally feel compelled to consent to a search of his or her car, and the history of abuse of consent searches during which minorities were stopped for minor traffic infractions. State v. Domicz, 188 N.J. 285, 304-307 (2006); see also Carty, supra, 170 N.J. at 642, 644-47.