STATE OF NEW JERSEY v. JOSE O. ESCOBAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4816-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE O. ESCOBAR,

Defendant-Appellant.

________________________________

July 25, 2011

Submitted: July 5, 2011 - Decided:

Before Judges Axelrad and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-07-01169.

Ambar I. Abelar, attorney for appellant.

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

PER CURIAM

Defendant Jose Escobar pled guilty to first-degree financial facilitation of criminal activity (money laundering), N.J.S.A. 2C:21-25a, pursuant to a plea agreement after his motion to suppress evidence was denied by the trial court. He appeals from the order denying his motion to suppress the currency contained in a duffel bag seized by police during a routine safety inspection of his commercial tractor-trailer. We affirm.

The facts, which are set forth in detail in the trial court's written opinion appended to the order, are not in dispute. Accordingly, we recite only those facts necessary to place our opinion in context. Trooper David DeJesus of the New Jersey State Police testified at the suppression hearing. Early in the morning on April 7, 2009, Trooper DeJesus, a certified United States Department of Transportation (USDOT) inspector, observed a commercial tractor-trailer obstructing an entrance ramp and parked in a "no parking" area of the Grover Cleveland Service Area on the Turnpike. A computer lookup revealed the license plate was unregistered and the USDOT number on the truck was not on file.

The trooper approached the driver, later identified as defendant, who was asleep in the vehicle's cabin. The trooper advised he would be conducting a Level II commercial vehicle inspection in accordance with federal regulations and had defendant move the vehicle to the truck lot. Defendant conceded the vehicle's inspection had expired and the trooper found numerous violations in defendant's log book. The trooper also noted a violation two days prior for an unsecured or discharged fire extinguisher. Accordingly, while the trooper was conducting a visual safety inspection of the truck, he asked defendant about the location of the emergency equipment. When defendant responded he was unsure, Trooper DeJesus explained that, typically, the fire extinguisher is located near the driver's seat and the emergency triangles are located underneath the bunk in the sleeping berth.

The fire extinguisher was not under the driver's seat. When defendant lifted the mattress in the sleeping berth, he began to sweat profusely and his hands visibly shook. The compartment contained safety triangles but not the fire extinguisher. Amid greasy chains and leaking mechanical fluid, the trooper observed a clean duffel bag. Assuming the bag contained personal items, such as clothing, trooper DeJesus asked defendant why he put it in the dirty sleeper compartment and not in the closet, which was empty. Defendant denied it was his bag, but added that he thought it contained clothes.

For safety reasons, because he was alone with defendant inside the truck, the trooper instructed defendant to lift the bag and place it on the mattress. When the trooper commented that the bag appeared "to be kind of heavy to be clothes," defendant said he thought it was money. Of his own volition, defendant began unzipping the bag, revealing "black bundles." Believing it was drugs, the trooper handcuffed defendant, left the bag where it was, removed defendant from the truck, and called for back-up. Defendant was read and acknowledged understanding his Miranda1 rights and he was then placed in the back-up patrol car. Based on defendant's demeanor and inconsistencies regarding the bag, Trooper DeJesus presented him with a consent to search form, covering the duffel bag, tractor and trailer, and its contents, and read the form to him verbatim. Defendant consented in writing to the search.

Trooper DeJesus then retrieved $520,420 in United States currency from the duffel bag, packaged in shrink-wrapped bundles with a number written in magic marker on top of each bag. A further search of the vehicle disclosed packages of shrink-wrap.

Defendant was indicted on the money laundering charge. He filed a motion to suppress the evidence found in the search of the tractor-trailer. Defendant argued the warrantless search on his vehicle was unreasonable and Level II inspections do not cover safety equipment, including fire extinguishers. Defendant alternatively challenged N.J.S.A. 2C:21-25 and -26 as unconstitutionally vague. The State justified the search of the duffel bag under the plain view exception to the warrant requirement and further asserted the trooper obtained lawful consent to search.

Judge DeVesa denied defendant's motion in a written opinion of January 26, 2010. Relying on our opinion in State v. Hewitt, he rejected defendant's argument that inspections for safety equipment such as fire extinguishers are beyond the authority of an officer during Level II inspections. See 400 N.J. Super. 376, 381 (App. Div. 2008) (permitting a Level II inspection of a commercial truck, noting violations for an unsecured fire extinguisher and positioning of the load, and search of a hidden compartment as within the administrative search exception to the warrant requirement). The judge concluded the trooper, who was charged with the duty to ensure compliance with federal regulations, maintained the authority to inspect all areas of the vehicle that did not require physically getting underneath it. See U.S. v. Mendoza-Gonzalez, 363 F.3d 788, 791 (8th Cir. 2004) (holding that Level II inspections include "all safety equipment that can be examined without physically getting under the vehicle, such as lights, tires, emergency equipment, and safety belts.") (cited with approval in Hewitt, supra, 400 N.J. Super. at 385, 386). The judge was satisfied the sleeper berth and compartment beneath the mattress did not exceed the "spatial scope" authorized by administrative regulations. See Hewitt, supra, 400 N.J. Super. at 386.

Judge DeVesa further explained that when the trooper discovered the duffel bag, he simply asked defendant to place it on top of the mattress. He noted defendant's completely voluntary act in opening the bag, and the trooper's subsequent plain-view observation of the plastic bundles that he believed were contraband. The judge also found defendant voluntarily, intelligently and knowingly consented to the search of the bag.

The judge further rejected defendant's reliance on State v. Carty, 170 N.J. 632, 635 (2002), requiring a reasonable and articulable suspicion of criminal wrongdoing prior to consent searches, noting its limited holding, State v. Domicz, 188 N.J. 285, 304 (2006), and finding its principle inapplicable to a commercial vehicle such as defendant's tractor-trailer. Nonetheless, Judge DeVesa found, based on the totality of the circumstances, that the trooper possessed a reasonable and articulable suspicion to believe defendant was concealing contraband to uphold the consent to search.

Finally, based on his review of our case law and of federal cases interpreting the federal counterpart to New Jersey's money laundering statute, 18 U.S.C.A. 1956, Judge DeVesa was convinced N.J.S.A. 2C:21-25 and -26 were neither unconstitutionally vague nor overbroad. See State v. Harris, 373 N.J. Super. 253, 264-69 (App. Div. 2004) (interpreting a different subsection, N.J.S.A. 2C:2l-25b(l), but relying on both the plain language of, and expressed public policy contained in, the money laundering statute to conclude it was clear on its face and encompassed the defendant's conduct), certif. denied, 183 N.J. 257 (2005). See also U.S. v. Haun, 90 F.3d 1096, 1101 (6th Cir. l996) (upholding the constitutionality of the federal money laundering statute, 18 U.S.C.A. 1956, against a void for vagueness challenge), cert. denied, 519 U.S. 1059, 117 S. Ct. 691, 136 L. Ed. 2d 614 (1997); accord U.S. v. McLamb, 985 F.2d 1284, 1290-92 (4th Cir. l993); U.S. v. Gilliam, 975 F.2d 1050, 1055-58 (4th Cir. l992). The judge found N.J.S.A. 2C:21-25a to be clear on its face as it placed individuals such as defendant on notice that the Legislature made it a crime to "transport or possess property . . . known or which a reasonable person would believe to be derived from criminal activity."

Judge DeVesa also found unpersuasive defendant's argument that N.J.S.A. 2C:21-26,2 when read with N.J.S.A. 2C:21-25a, creates an impermissible presumption violative of due process. He explained:

Moreover, the statutory inference permitted in N.J.S.A. 2C:21-26 does not diminish [the] State's burden to prove defendant's guilt to anything less than beyond a reasonable doubt. The jury still remains the ultimate finder of fact. State v. Ingram, 98 N.J. 489, 497 (l985). Additionally, no inference may be used in a criminal prosecution unless there is a rational connection in common experience between the fact giving rise to the inference and the fact being inferred, and deference must be given to the legislature's determination that the connection is rational. Id. at 497-99. Furthermore, N.J.S.A. 2C:21-26 is merely an inference and not a presumption, and thus, maintains no mandatory effect. Id. at 498. Accordingly, defendant's motion to declare N.J.S.A. 2C:21-25 unconstitutional must be denied.

On appeal, defendant essentially renews the arguments he made to the trial court. We affirm substantially for the reasons stated by Judge DeVesa in his comprehensive and cogent written opinion. His factual findings are well supported by the record and his legal rulings are amply based on legal precedent. We add the following brief comments.

When reviewing a motion to suppress, we "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) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). We give deference to a trial judge's findings "which are substantially influenced by his [or her] opportunity to hear and see the witness and to have the 'feel' of the case." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). The trial judge's findings should only be reversed "if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).

We accord no deference to the motion judge's conclusions on issues of law, Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

As to the issue involving the administrative search exception to the warrant requirement, defendant contends the ruling is "clearly mistaken" in light of our recent decision in State v. Pompa, 414 N.J. Super. 219 (App. Div.), certif. denied, 205 N.J. 14 (2010), which post-dated the suppression ruling and which he submits presents identical issues of fact and law. In Pompa, a trooper stopped a commercial tractor-trailer on an interstate highway after observing a tampered USDOT number, and based on the defendant's nervousness, the "overwhelming" odor of air fresheners throughout defendant's vehicle, and irregularities in the log book, the trooper performed a Level II safety inspection. Id. at 223-25. The trooper entered the sleeper cabin after smelling a strong odor of marijuana emanating from there while he was sitting in the cab. Id. at 225-26. He then removed a duffel bag from an opened closet, bent down and sniffed it, and claiming he could smell marijuana inside, the trooper opened the bag and found numerous sealed freezer bags filled with what appeared to be marijuana. Id. at 226. A second warrantless search occurring post-arrest disclosed another duffel bag in the closet and two more bags proximate to the defendant's bed, all of which contained marijuana. Ibid.

We upheld the administrative inspection of the vehicle's cab and the trooper's entry into the sleeper cabin for the purpose of ensuring compliance with federal regulations. Id. at 233. However, we reversed denial of the defendant's suppression motion, concluding the search exceeded the lawful spatial scope of the administrative inspection because there was no regulatory reason for the trooper to search in the closet or duffel bag absent exigent circumstances. Id. at 234-38.

Defendant's reliance on Pompa is misplaced as that case is factually inapposite. Here the record is clear, and the judge's findings are not disputed by defendant, that the trooper and defendant entered the sleeping berth and defendant lifted the mattress in an attempt to locate the fire extinguisher and other emergency equipment. Moreover, it is without question the regulations contemplate that a Level II inspection includes an examination of safety equipment, particularly in this instance where there had been a recorded violation two days before of an unsecured or discharged fire extinguisher. Thus, the discretion of the inspecting trooper was "'carefully limited in time, place, and scope.'" Hewitt, supra, 400 N.J. Super. at 387 (quoting New York v. Burger, 482 U.S. 691, 703, 107 S. Ct. 2636, 2644, 96 L. Ed. 2d 601, 614 (l987)). Furthermore, once the trooper discovered the duffel bag, he simply asked defendant to put it on top of the mattress. As noted by the judge, "[t]here is no indication Trooper DeJesus forced or coerced defendant to place the bag in that position." Perhaps most critically, defendant then began to unzip the bag completely on his own volition. In addition, defendant thereafter gave written consent to search.

We also reject defendant's constitutional challenge to the money laundering statute. "[W]henever a challenge is raised to the constitutionality of a statute, there is a strong presumption that a statute is constitutional." State v. Muhammad, 146 N.J. 34, 41 (1996). "Vagueness 'is essentially a procedural due process concept grounded in notions of fair play.'" State v. Lee, 96 N.J. 156, 165 (l984) (citation omitted). A criminal statute is not impermissibly vague and thus void as a matter of due process "so long as a person of ordinary intelligence may reasonably determine what conduct is prohibited so that he or she may act in conformity with the law." State v. Saunders, 302 N.J. Super. 509, 520-21 (App. Div.), certif. denied, 151 N.J. 470 (l997). See also Amaya v. New Jersey, __ F. Supp. 2d __, __ (D.N.J. 2011) (2 011 U.S. Dist. LEXIS 13509, at *18 (Feb. 10, 2011)) (holding, in part, that New Jersey's money-laundering statutes, N.J.S.A. 2C:21-25a and -26, are not unconstitutionally vague and overbroad).

Moreover, the "determination of vagueness must be made against the contextual background of the particular law and with a firm understanding of its purpose." State v. Cameron, 100 N.J. 586, 591 (l985). As Judge DeVesa noted, the Legislative intent of the money laundering statute is expressed in N.J.S.A. 2C:21-23(e), i.e., to safeguard the public interest by imposing strict criminal and civil sanctions against those who convert ill-gotten criminal profits, provide a means of hiding the true source of the funds, and facilitate such activities so as to punish and deter "individuals and business entities from assisting in the 'legitimizing' of proceeds of illegal activity."

N.J.S.A. 2C:21-26 provides guidance to the public, law enforcement, and juries on how the requisite knowledge "that the property transported or possessed was derived from criminal activity" can be inferred to convict a defendant under N.J.S.A. 2C:21-25a. It does not create an impermissible mandatory presumption that binds the factfinder and shifts the burden of proof to defendant.

A permissive inference "suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion." Francis v. Franklin, 471 U.S. 307, 314, 105 S. Ct. 1965, 1971, 85 L. Ed. 2d 344, 353 (l985). Moreover, in contrast to a mandatory presumption, which violates the due process clause if it "relieve[s] the State of the burden of persuasion on an element of an offense[,]" a permissive inference "does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate acts proved." Ibid.

Based on the language of N.J.S.A. 2C:21-26, i.e., "the requisite language may be inferred," it is clear the statute creates a permissive inference rather than a mandatory presumption. See Amaya, supra, 2 011 U.S. Dist. LEXIS 13509, at *23 (holding that the New Jersey money laundering statutes authorize a permissive inference that may be accepted or rejected by the fact finder and must be considered together with all other evidence in determining whether the state has met its burden of proof). This conclusion is reinforced by the language of the model jury charge used in connection with N.J.S.A. 2C:21-25a, which repeatedly uses the term "infer" and "inference," and states "[w]hether or not an inference should be drawn is for you to decide using your own common sense, knowledge and everyday experience[,]" cautions that "you are never required or compelled to draw an inference[,]" and reminds that "[i]f you draw an inference, you should weigh it in connection with all the other evidence in the case, keeping in mind that the burden of proof is upon the State to prove all the elements of the crime beyond a reasonable doubt." Model Jury Charge (Criminal), "Financial Facilitation of Criminal Activity (Money Laundering), N.J.S.A. 2C:21-25a" (2009). See also Amaya, supra, 2 011 U.S. Dist. LEXIS 13509, at *23. Accordingly, the challenged statutes withstand constitutional attack.

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

2 N.J.S.A. 2C:21-26 states, in pertinent part:

For the purposes of [N.J.S.A. 2C:21-25a], the requisite knowledge may be inferred where the property is transported or possessed in a fashion inconsistent with the ordinary or usual means of transportation or possession of such property and where the property is discovered in the absence of any documentation or other indicia of legitimate origin or right to such property.