STATE OF NEW JERSEY v. JULIO RUIZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2754-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIO RUIZ,

Defendant-Appellant.

_______________________________

Submitted July 3, 2012 Decided September 27, 2012

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No.

08-07-1607.

Joseph E. Krakora, Public Defender, attorney

for appellant (Amira R. Scurato, Assistant Deputy

Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County

Prosecutor, attorney for respondent (Mary R.

Juliano, Special Deputy Attorney General/Acting

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

After obtaining defendant Julio Ruiz's written consent to search his home, Long Branch police officers found a bag of cocaine concealed on top of the refrigerator located in the kitchen of defendant's residence. A Monmouth County grand jury thereafter returned an indictment against defendant charging him with second degree conspiracy to distribute cocaine, N.J.S.A. 2C:35-5(b)(2) and N.J.S.A. 2C:5-2; third degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3); and third degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7.

After the trial court denied his motion to suppress, defendant pleaded guilty to second degree conspiracy to distribute cocaine and third degree possession of cocaine with intent to distribute within 1000 feet of school property. The court sentenced him to a term of seven years imprisonment with a forty-two month period of parole ineligibility and imposed the mandatory fines and penalties.

Defendant now appeals, raising the following argument:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE AS CONSENT WAS NOT GIVEN KNOWINGLY OR VOLUNTARILY.

We reject this argument and affirm. We derive the following facts from the record developed at the evidentiary hearing conducted by the court in deciding defendant's motion to suppress.

On November 30, 2007, Sergeant Raymond Chaparro, Jr., and four or five other officers from the Long Branch Police Department were dispatched to defendant's home to execute a warrant for his arrest. Chaparro and his fellow officers arrived at defendant's house at approximately 6:20 in the morning. Chaparro was the first officer to knock on the front door of the residence, because he knew defendant and had a good working relationship with him. The majority of the other officers were deployed to the back of the house.

Defendant responded to Chaparro's knock and opened the door wearing only boxer shorts. He was polite and cooperative, and he permitted Chaparro and his fellow officers to enter the home without incident. Defendant informed the detectives, and the officers subsequently confirmed, that his children were asleep on the second floor of the house. Chaparro testified that he told defendant to sit on the couch without handcuffing him. He also retrieved defendant's pants from the upper floor bedroom and, after checking them for contraband,1 allowed defendant to put them on.

By this time, approximately ten minutes had transpired from the time the officers first entered defendant's home. Chaparro sat next to defendant on the couch and read him his rights under Miranda.2 Defendant told Chaparro that he understood his rights and agreed to waive those rights and answer questions. Defendant confirmed the waiver in writing by initialing the responses he gave to each of the questions listed on the standard Miranda form.

According to Chaparro,3 the following interaction between fellow Detective Rue and defendant lead to obtaining defendant's consent to search the house:

Then Detective Rue is like, Listen, we have everybody else. We know what's going on. We know you have drugs. We know - - we got the investigation, like more. Do you have any guns or drugs in the house? And [defendant's] like no. [Rue] said, Are you sure you don't have any guns or drugs in the house because we know what's going on. It's a big investigation and he said, No. So he said, Okay, if you have no guns or drugs in the house, would you consent to a search of your apartment? And he said yes.

At this point, Rue read defendant a consent to search form4 listing his right: (1) to refuse to consent to the search; (2) to revoke his consent at any time during the search; and (3) to be present while the search is conducted. The form also included a section in blank to describe the area where the search would be conducted. As he did with the Miranda form, defendant acknowledged having read and understood his rights by writing his initials next to the relevant sections of the consent to search form; he also signed and dated the form where indicated. Defendant gave the police permission to search his home and two motor vehicles, a 1 998 Buick and a 1998 Ford. He also opted not to waive his right to be present while the search was conducted.

According to Chaparro, immediately after signing the consent to search form, defendant admitted to having "something" in the house. He then walked over to the kitchen and pointed to the top of the refrigerator where Chaparro found "a bag containing cocaine." Following defendant's direction, Chaparro also found a scale and baggies above the kitchen sink.

Against this record, the motion judge found that defendant knowingly and voluntarily consented to a warrantless search of his home. In his analysis, the judge noted the factors discussed by the Court in State v. King, 44 N.J. 346, 352-53 (1965), that ordinarily weigh against upholding the validity of a search. Specifically, courts have considered a consent likely coerced when given by an individual already in police custody. Ibid. However, the judge here found Chaparro's testimony credible. Under these circumstances, the judge concluded that defendant was not coerced to consent to the search.

We are bound to uphold the findings of the trial court as long as they are supported by sufficient credible evidence in the record. State v. Nu ez-Vald z, 200 N.J. 129, 141 (2009). We must also defer 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.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). In Elders the Court emphasized that

[a]n 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. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." 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. (internal citations omitted).]

Applying these principles, we discern no basis to interfere with the motion judge's findings. Defendant knowingly and voluntarily gave the police officers permission to search his home after being made aware of his right to refuse. Defendant's decision to exercise his right to accompany Detective Chaparro during the search further corroborates the court's findings.

1 Chaparro found approximately $500 in cash in the pockets of defendant's pants.

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

3 Detective Chaparro was the only witness who testified at the suppression hearing.

4

Although the consent to search form was listed as an exhibit at the suppression hearing, it was not included in the appellate record provided to us. Our recitation of its contents is thus taken entirely from Detective Chaparro's testimony.