STATE OF NEW JERSEY v. DWIGHT RICARDO TITUS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1540-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DWIGHT RICARDO TITUS,

Defendant-Respondent.

____________________________________________

May 13, 2011

Submitted March 29, 2011 - Decided

Before Judges Wefing and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 07-05-0184.

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a negotiated guilty plea, defendant Dwight Ricardo Titus appeals from his conviction of first degree possession of a controlled dangerous substance, marijuana, in excess of twenty-five pounds, with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(10)(a); third degree exhibiting a false government document, contrary to N.J.S.A. 2C:21-2.1c; and third degree hindering apprehension, contrary to N.J.S.A. 2C:29-3b(4).

Prior to entering the plea, defendant had filed a motion to suppress the evidence that served as the basis for the charges, which the trial judge denied. The negotiated plea agreement provided that defendant would serve fourteen years in prison on the possession with intent charge and two concurrent five-year prison terms on the other two charges. Defendant reserved the right to argue for a lighter sentence. On August 15, 2008, the judge imposed the fourteen-year sentence with two concurrent five-year sentences, plus fines and costs. This appeal followed.

On appeal, defendant argues that the trial judge erred in denying his motion to suppress evidence and that the sentence imposed on him was excessive. We reject both arguments and affirm.

I

The search leading to the evidence upon which the convictions were based occurred as follows. On December 22, 2006, at about 9:00 a.m., Trooper Michael Cregan of the New Jersey State Police was conducting a routine patrol on Interstate 78. He observed a tan car with Pennsylvania license plates traveling approximately seventy miles per hour in a construction zone with a speed limit of fifty miles per hour. After pacing the car for about a mile, Cregan pulled the vehicle over. The driver, later identified as defendant, provided a Pennsylvania car rental agreement, a South Carolina identification card and a South Carolina driver's license for "Tyrelle Tellis." The rental agreement, however, listed the rental vehicle as a tan 2007 Ford Crown Victoria, which was not the model car defendant was driving. In addition, the vehicle was overdue for return to the rental agency by two days. Cregan noted that defendant's hands were shaking when he provided the paperwork.

The trooper explained to defendant the reason for the stop and questioned him about his itinerary. The trooper noted that, while talking about his itinerary, defendant looked down and avoided eye contact. Defendant also stuttered before responding, and repeated part of the questions. The trooper considered this nervousness out of the "norm" for a motor vehicle stop. He also noticed that the interior of the rental car was clean and relatively free of any personal effects. When Cregan asked defendant if he had any luggage in the trunk, he replied, "Not that I know of."

After returning to his patrol vehicle, the trooper ran a credential check and received a report that the driver's license might be fraudulent. Cregan then contacted his dispatcher to confirm the status of the license. While awaiting verification, Cregan, who was sitting in his patrol vehicle, noticed defendant staring "intently" at him from his car. As Cregan moved about inside the cabin, defendant changed his vantage point by using his rearview and side-view mirrors to keep his eye on the trooper.

The trooper soon received confirmation from the dispatcher that the driver's license was not only fraudulent but also suspended. Cregan then exited his vehicle and approached the rental car where he requested defendant s keys. Cregan did not know "where the stop was going" and did not want defendant to drive off. Defendant responded by handing the trooper the keys.

During the investigation Cregan also asked defendant questions about the rental agreement and his rental history. According to defendant, he rented a car about three times a year when he came up north. He stated that he had taken a bus from South Carolina to Reading, Pennsylvania, then rented a car to drive to New York to see his family. He was on his way to return the car to Reading and then take a bus back to South Carolina. Defendant claimed that he was born in Brooklyn and had previously resided there. During this questioning, defendant remained nervous, stuttered as he spoke, and looked down and away from the trooper.

Cregan returned to his patrol vehicle and called the rental agency in Pennsylvania. The rental agency owner informed the trooper that defendant had rented a car from his agency about eighteen times in the past year. Following that conversation, the trooper arrested defendant for providing a fraudulent license. Cregan then read defendant his Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). About fifty minutes elapsed from the time of the stop until the time of the arrest.

Following the arrest, Cregan contacted his barracks to obtain permission to seek defendant s consent to search the vehicle. Based on defendant's demeanor, his answers to itinerary questions, the fraudulent driver's license, and his rental history, Cregan thought he had reasonable suspicion that defendant was involved in drug-related criminal activity. After obtaining permission to seek consent to search from Sergeant Parisi, Cregan completed a consent-to-search form and read it to defendant. Defendant refused to consent to the search.

Next, Cregan, who had developed a suspicion that narcotics were inside the vehicle, contacted Sergeant Jones of the State Police K-9 Unit. Jones advised Cregan that he was about an hour away, but would come to the barracks, where the car would be impounded. Cregan notified his dispatcher to send a tow truck. Cregan then transported defendant to the State Police barracks for processing.

Upon arrival at the barracks, defendant was placed into a holding cell and again given Miranda warnings. Fingerprints were obtained from defendant and sent to the FBI for purposes of identification. Subsequently, the results from the FBI revealed defendant's true identity, and that he had previously been deported in light of his criminal record.

When the K-9 Unit arrived at the barracks, Sergeant Jones deployed canine "Nero" to perform an exterior sniff of the rental vehicle. Due to Nero's behavior and reaction, Sergeant Jones opined that a narcotic odor was emanating from the trunk area of the vehicle. Based on the positive results of the canine sniff, Cregan and a detective began working on the application and affidavit for a search warrant of defendant s rental car.

During this time, Cregan informed defendant that they knew his true identity, including that he was a previously-deported felon. He also told defendant that a canine was at the station performing an exterior sniff of the rental vehicle and that they intended to obtain a search warrant. Defendant said nothing upon hearing this information. The police continued to work on the search warrant application.

Meanwhile, Sergeant Parisi, the watch commander at the barracks, went to the holding cell to check on defendant. Defendant asked what was happening with his case. Parisi replied that he did not know but would find out. After making inquiries, Parisi reported back to defendant that the police had learned his real identity and that he had been deported. When defendant asked what would happen to him, Parisi told him that he would be transferred to the county jail and ultimately would be deported.

Parisi also informed defendant that they were in process of drafting a search warrant, which could take several hours. Defendant said, "There's no need. I have twenty pounds in the trunk." As a result of defendant s statement, Cregan stopped preparation of the search warrant application to seek defendant s consent to search the rental vehicle.

Next, Cregan and a detective conducted a recorded interview of defendant. Defendant was again given Miranda warnings. Defendant acknowledged, among other things, that when he learned that the police were preparing a search warrant, he told Parisi what was inside the trunk of his car. During this part of interview, the detective read the contents of the consent-to-search form to defendant, which advised him of his right to refuse consent. After obtaining defendant s written consent, the police searched the vehicle and found what was ultimately determined to be over thirty-six pounds of marijuana.

The trial judge found the testimony of the troopers credible and denied defendant's motion to suppress. The judge held that the roadside questioning prior to defendant's arrest did not violate his rights because the trooper's intent was to determine defendant's identity, and his questions were tailored to those ends. With respect to the canine unit s involvement, the judge determined that a canine sniff does not implicate Fourth Amendment interests as long as a reasonable suspicion existed to detain defendant prior to the canine sniff.

The judge found that impoundment of defendant's vehicle after his arrest was justified because it was an effectively disabled vehicle on the side of a busy interstate highway, which constituted an unacceptable danger. The judge rejected defendant's argument that the rental vehicle was impounded as a pretext to search it.

The judge also rejected the argument that the conversation between Sergeant Parisi and defendant amounted to an interrogation. As defendant had initiated the conversation with Parisi, there was no interrogation requiring suppression of statements under Miranda. Instead, defendant, who had been repeatedly read his Miranda warnings, chose to engage in conversation with Parisi rather than invoke his right to remain silent. Additionally, the trial judge held that the weight of the evidence suggested that the consent to search defendant's rental vehicle was not the product of duress or coercion, and thus, was knowingly and voluntarily given.

II

Defendant presented the following contentions for our consideration.

POINT I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE WARRANTLESS SEARCH AND SEIZURE SINCE A REASONABLE AND ARTICULABLE BASIS TO SUSPECT CRIMINAL WRONGDOING DID NOT EXIST.

POINT II. DEFENDANT'S FOURTEEN YEAR SENTENCE IS EXCESSIVE.

Defendant argues that the police did not have a reasonable suspicion to make the first request for defendant to consent to a search of the vehicle; that the impoundment of the car was not based upon a realistic need; that the canine sniff was unreasonable; and the search of the vehicle after defendant consented was the fruit of the poisonous tree. We disagree with these arguments.

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Even a brief limited detention of a person during an automobile stop is a seizure within the meaning of this provision. Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89, 95 (1996) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979)). If police have probable cause to believe that a traffic violation has occurred, a decision to stop an automobile is reasonable. Whren, supra, 517 U.S. at 810, 116 S. Ct. at 1772, 135 L. Ed. 2d at 95-96.

During the course of a traffic stop, if circumstances give rise to a suspicion unrelated to the original traffic offense, the police may broaden the inquiry. State v. Baum, 199 N.J. 407, 424 (2009) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)). The permissible length of the stop and the extent of the inquiry depends upon whether, "based upon the totality of the circumstances, the officer has a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002); see State v. Brown, 352 N.J. Super.338, 352 (App. Div.), certif. denied, 174 N.J.544, (2002). The reasonable suspicion standard requires the police to have "'a particularized suspicion' based upon an objective observation that the person stopped has been . . . or is about to engage in criminal wrongdoing." State v. Nishina, 175 N.J. 502, 511 (2003) (quoting State v. Davis, 104 N.J. 490, 504 (1986)); see State v. Elders, 192 N.J. 224, 224 (2007).

Applying these principles to the facts found credible by the trial judge, we find that the troopers did have reasonable suspicion to extend the stop and proceed precisely as they did in this case. Defendant was stopped for speeding, presented fraudulent papers, was driving a rental car that was overdue and did not match the car described in the rental agreement, and was acting very nervously in response to questions. Thus, the troopers had a reasonable suspicion that defendant was engaging in criminal wrongdoing.

However, the issue of the reasonableness of Cregan s request for consent to a search at the scene is moot since defendant declined and no search occurred. Nevertheless, defendant argues that the first search request in some way led to the impoundment, the canine sniff, and ultimately the admission and consent to search. We find no support for that argument in the record. Furthermore, since the trooper did have a reasonable articuable suspicion of criminal wrongdoing, the request was permissible.

Next, defendant challenges the impoundment of the rental car as an unjustified seizure. Our Supreme Court has held that there must be "a factual showing of substantial police need, in the light of the constitutional regard for the privacy interests of automobile drivers, before approving the impoundment of a motor vehicle." State v. Mangold, 82 N.J. 575, 582 (1980) (quoting State v. Slockbower, 79 N.J. 1, 8 (1979)). If the police do not have a realistic need to impound the vehicle, then the impoundment is unreasonable. State v. Bruzzese, 94 N.J. 210, 224 (1983).

Under the conditions existing here, we agree with the findings of the trial judge that the police had a realistic need to impound the vehicle. The vehicle was pulled over to the side of an interstate highway in a construction zone, which had a reduced speed limit. The trial judge, after viewing the videotaping of the traffic stop, noted the significant amount of truck traffic on that highway. The car was owned by a rental company, located near Reading, Pennsylvania, about one hour away. Defendant, who had just been arrested and claimed to reside in South Carolina, would have had difficulty making other arrangements for the custody of the vehicle. Under all the circumstances here, impoundment was necessary for the safety of travelers on the road and also to keep the vehicle safe from damage. We reject defendant's arguments to the contrary.

Also, defendant contends that the impoundment was simply a pretext to have a canine sniff and search the vehicle. We find this claim unpersuasive. The canine sniff could have occurred at the side of the road but it would have been an hour before the K-9 unit arrived. We find significant that, when the vehicle was towed to the barracks, the police did not perform an inventory search. Rather, they set about preparing papers to obtain a search warrant in order to search the vehicle, thus disproving defendant's pretext claim.

We also reject defendant's claim that the canine sniff of the rental vehicle was unreasonable. A canine sniff examination of the exterior of a car does not constitute a search and thus probable cause is not required before the police conduct this examination. Illinois v. Caballes, 543 U.S. 405, 408-10, 125 S. Ct. 834, 837-38, 160 L. Ed. 2d 842, 847-48 (2005). We have held that the use of a drug-sniffing canine is permissible so long as the police have a reasonable suspicion that contraband will be found in the vehicle. State v. Elders, 386 N.J. Super. 208, 228-29, (App. Div. 2006), rev'd on other grounds, 192 N.J. 224 (2007); State v. Cancel, 256 N.J. Super. 430, 435 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993). Under the circumstances here, including the traffic violation, the fraudulent documents, the nervousness and the suspicious itinerary and rental history, Cregan had a sufficient basis for a reasonable and articulable suspicion of criminal wrongdoing.

Finally, defendant argues that because the police did not have a reasonable suspicion to request a search, impound the car and conduct a canine sniff, the marijuana found during the search constituted fruit of the poisonous tree, and must be suppressed. Wong Sun v United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). This argument is unpersuasive in light of our holding there was reasonable suspicion throughout the troopers' ongoing investigation to justify the their actions. Therefore, we agree that the trial judge was correct in denying defendant's motion to suppress.

III

Defendant also argues that the fourteen-year sentence was excessive, because a correct analysis of the aggravating and mitigating factors would have resulted in a shorter prison term. Defendant urges that the case be remanded for resentencing. We disagree.

In determining the appropriate sentence to be imposed on a person convicted of a crime, the sentencing judge must consider the specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1. The judge must balance these factors and explain how the sentence was determined so the reviewing court will have an adequate record on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005). The reviewing court must affirm the sentence if the judge identifies and balances the factors provided that their existence is supported by the record. State v. Carey, 168 N.J. 413, 426-27 (2001) (quoting State v. O'Donnell 117 N.J. 210, 216 (1989)). If the sentencing guidelines are followed, the sentence should only be modified if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

Defendant claims that the judge's method was inadequate and his conclusion was flawed. We disagree. The judge found four aggravating factors: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); a substantial likelihood that defendant was involved in organized criminal activity, N.J.S.A. 2C:44-1a(5); the extent of defendant's prior criminal record and the seriousness of the offense of which he has been convicted, N.J.S.A. 2C:44-1a(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). The court found no mitigating factors.

The judge, without going into great detail, reviewed the facts supporting defendant's conviction and noted some of his past criminal record, including his prior deportation. The judge did not have to engage in balancing as he did not find any mitigating factors. We find that the basis for the sentence was sufficient.

Under the circumstances of this case, defendant's sentence of fourteen years, with two five-year concurrent terms, follows the sentencing guidelines, is reasonable, and does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.

Affirmed.