STATE OF NEW JERSEY v. JOHN KUNWAI CUNNINGHAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5454-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN KUNWAI CUNNINGHAM,

Defendant-Appellant.

_______________________________

April 10, 2012

Submitted December 13, 2011 - Decided

Before Judges Messano and Kennedy

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-09-2145.

Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).

Peter E. Warshaw, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

Following a jury trial, defendant John Kunwai Cunningham was convicted of possession of heroin in violation of N.J.S.A. 2C:35-10a(1). He was also convicted, following a bench trial, of the disorderly persons offenses of possession of drug paraphernalia, contrary to N.J.S.A. 2C:36-2, and possession of a hypodermic needle, contrary to N.J.S.A. 2C:36-6. Defendant now appeals and raises the following arguments:

POINT ONE

THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE DERIVED FROM A WARRANTLESS SEARCH AND SEIZURE IN VIOLATION OF U.S. CONST. AMEND. IV; N.J CONST. ART. 1, 7.

POINT TWO

THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT.

For the reasons set forth hereinafter, we affirm.

The sole charge in the indictment alleged that on June 27, 2008, in Marlboro Township, defendant possessed heroin, a controlled dangerous substance contrary to N.J.S.A. 2C:35-10a(1). Defendant filed separate motions to suppress evidence and to dismiss the indictment. After holding an evidentiary hearing on February 26, 2009, Judge Francis P. DeStefano denied both motions, for reasons set forth in his written opinions. We turn first to the motion to suppress evidence.

I

In reviewing a motion to suppress evidence, an appellate court must defer to the trial court's findings of fact and "feel" of the case and may not substitute its own conclusions regarding the evidence. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)); accord State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243-44 (2007). In particular, the appellate court must defer to the credibility determinations of the trial court. Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966).

For purposes of our review, we accept the trial court's findings of fact, but we need not defer to its legal conclusions reached from the established facts. State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid. The trial court's application of the law is subject to plenary review on appeal.

We discern the facts from the record developed during the evidentiary hearing on the motion to suppress evidence.

Yen Chen owns a home in Marlboro where she lives with her son, defendant herein. While defendant has his own room in the house, he does not pay rent and does not lock the door to the room. Moreover, Mrs. Chen regularly enters the room to clean it and obtain defendant's soiled clothes and, upon completion of the laundry, she returns his clothes to the room. Mrs. Chen is free to enter the room whenever she needs to do so for these, and other, routine purposes.

At approximately 3:12 p.m. on June 27, 2008, Mrs. Chen called 911 to report that she found drugs in her son's room. She advised the police that defendant left the house and requested that the police respond to her home. It was her intention, at that time, to have the police arrest her son.

The first police officer to reach the home was Brian Hammarstrom. Officer Hammarstrom was in full uniform and arrived in a marked vehicle. Mrs. Chen was standing on the front steps to the house and was "visibly upset." Pointing toward the side of the house, Mrs. Chen told the officer that defendant had "run off" into some woods behind the residence. Officer Hammarstrom walked around the residence into the backyard and saw defendant talking on his cell phone.

On approaching defendant, Officer Hammarstrom asked him "what was going on" and defendant replied that "his mother had thrown him out of the house. They had gotten into a dispute." The officer then asked defendant the reason for the dispute and defendant explained that "he had a small drug problem and . . . his mother had found the drugs that he has stored in his bedroom and that is where the altercation erupted from." Defendant also volunteered that he was "addicted to heroin" when the officer asked him what kind of drug problem he had. At this point, the officer had not searched defendant, given him any orders or commands or touched him in any way. The officer had not unholstered his weapon and did not tell defendant he was under arrest.

Officer Hammarstrom asked defendant to walk with him to the front of the house. The officer noted that defendant appeared to be sweating and he wanted to get some water at the front of the house for defendant. When they arrived at the front of the house, Officer Hammarstrom asked defendant to sit on the front steps; defendant did so.

Officer Hammarstrom asked defendant if he had anything sharp with him. He broached the question because defendant had previously told him he had been a heroin user and the officer knew it was common for people who utilize heroin to also utilize syringes. According to the officer, he "just wanted to make sure that myself and everybody else on the scene were going to be safe, that we weren't going to get stabbed by anything." Defendant responded initially that he didn't believe that he had anything sharp on him, but after a short period of time, defendant asked if he could reach into his pockets. Upon doing so, defendant pulled out a hypodermic needle. Officer Hammarstrom told defendant to place the syringe on the front steps.

Officer Edward Ungrady was also dispatched to the scene and arrived just as Officer Hammarstrom was walking around the house to reach the backyard. As Officer Ungrady approached the front of the residence, Mrs. Chen opened the front door and appeared to be visibly shaken and upset. According to Officer Ungrady, "she just kept rambling on that . . . she had found her son's stash." She explained to Officer Ungrady that she believed her son had a drug problem and that on that particular day she found a financial statement indicating he had withdrawn a large sum of money from his account. According to the officer, "she felt that he used that money to purchase drugs." Accordingly, she searched his room looking for drugs and "she said she found the drugs in . . . his room."

Officer Ungrady asked Mrs. Chen to show him where she found the drugs and Mrs. Chen entered the residence with the officer and began climbing the interior steps to the second floor. While they were walking to the second floor, Officer Ungrady asked Mrs. Chen a series of questions about defendant's residence in the house. Mrs. Chen indicated that defendant paid no rent, had no lock on his room and that she regularly entered the room to clean it and do defendant's laundry. When they got to defendant's room the officer confirmed that there was no "locking mechanism" on the door and he followed Mrs. Chen into the room. At this point, Mrs. Chen pointed to a dresser and indicated that the drugs were in a plastic box on top of the dresser. The plastic box appeared to be a "baby wipe container of some sort" with the lid partially open. He looked into the box and saw a hypodermic needle and several wax paper folds "that had significant markings on them consistent with what heroin or a controlled dangerous substance is packaged in." He also saw a prescription bottle located directly beside the syringe and found additional wax paper folds containing a white powdery substance he suspected to be heroin.

At this point, Officer Ungrady went down the stairs and out to the front of the home where he found defendant seated on the steps in the presence of Officer Hammarstrom. Officer Hammarstrom told Ungrady about the syringe defendant had taken from his pocket. Officer Ungrady then asked defendant what happened and defendant said he had gotten into an argument with his mother and "she found his stash." Officer Ungrady arrested defendant and told Mrs. Chen that defendant would be taken to the police station.

At the police station, defendant was read his Miranda1 rights and defendant signed a form waiving his rights. He then stated he had been addicted to heroin for approximately six months and would take a cab or a train to Newark to purchase heroin.

Mrs. Chen testified at the suppression hearing that a month or two before she called the police, an acquaintance of her son came to the house with a package for defendant. Mrs. Chen opened the package and saw syringes and "stuff" and placed the items into a plastic box which she then hid in her closet. The acquaintance who had dropped the items off to defendant later died. Mrs. Chen said that she believed defendant was using drugs on the day she called the police, because she had found a needle in his pocket. Accordingly, she retrieved the plastic box containing the items that had earlier been delivered for defendant, placed the box in defendant's room and called the police, hoping they would arrest defendant.

Mrs. Chen conceded that she wanted the police to come to her home that day and that, in any event, she planned to turn the drugs over to the police because she did not want them in her home. She added that she deliberately put the drugs in defendant's room so the police would find the drugs and conclude that defendant "was guilty."

Defendant challenges the search of his room and the seizure of the items, claiming that neither officer asked his mother for permission to search the room and did not inform her that she had a right to refuse the search. Further, defendant contends that the officers "deliberately devised a plan wherein one officer would speak with Mrs. Chen and conduct a search and the other officer would detain [defendant] and keep him occupied so that he was unaware of what was happening inside his bedroom."

In a written opinion denying the motion to suppress, Judge DeStefano found in part,

In this case, the officers clearly had a reasonable belief that Ms. Chen had the authority to first permit entry into her home. Upon arrival, Officer Ungrady knocked on the front door, was greeted by Ms. Chen, and all facts indicate that he was subsequently invited into the home by Ms. Chen. As such, Officer Ungrady was lawfully within the home. . . . [I]t appears that Ms. Chen had the requisite access and control over defendant's room and that she consented to the search . . . by leading Officer Ungrady to defendant's room and pointing out where she discovered the drugs. Additionally, although she now apparently recants the substance of her initial 911 call, the fact remains that the police were only at the home because Mrs. Chen called for their assistance upon allegedly finding drugs in her son's room.

Addressing the contention that police removed defendant from the scene in order to prevent him from denying permission to enter the bedroom, Judge DeStefano found

[I]t does not appear from the facts at bar that defendant was actively removed from the situation for the purposes of avoiding his objection. When Officer Hammarstrom first arrived on the scene, Ms. Chen told him that defendant was in the back yard. With this information as well as the report from the 911 call, Officer Hammarstrom proceeded to look for defendant and remained with him to determine what happened between defendant and his mother. Given all the facts of this incident, the Court has no indication that defendant was actively removed from his home or that he was actively detained to prevent him from objecting to a search of his room, thus, the court finds that Ms. Chen validly consented to the search of defendant's room.

"[P]hysical entry of the home is the chief evil against which . . . the Fourth Amendment is directed." State v. Hutchins, 116 N.J. 457, 463 (1989) (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972)). "Historically, the Court has applied a more stringent standard of the Fourth Amendment to searches of a residential dwelling." State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Consequently, "searches and seizures inside a home without a warrant are presumptively unreasonable." Hutchins, supra, 116 N.J. at 463 (quoting Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980)).

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution require police officers to obtain a warrant "before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). "A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search of a home," State v. Domicz, 188 N.J. 285, 305 (2006), and it constitutes a "legitimate aspect of effective police activity." Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048, 38 L. Ed. 2d 854, 863 (1973). Consent is a "factual question to be determined from the relevant circumstances." State v. Koedatich, 112 N.J. 225, 264 (1988); State v. Pante, 325 N.J. Super. 336, 349 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). Such consent must be "voluntary and the consenting party must understand his or her right to refuse." State v. Suazo, 133 N.J. 315, 320 (1993).

Under certain circumstances, "valid consent may be obtained from one other than the accused." Ibid. "A third party who possesses 'common authority over or other sufficient relationship' to the property sought to be inspected may consent to its search." Ibid. (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974)). "That authority to consent arises from the 'mutual use of the property by persons generally having joint access or control for most purposes.'" Suazo, supra, 133 N.J. at 320 (quoting Matlock, supra, 415 U.S. at 171 n.7, 94 S. Ct. at 993 n.7, 39 L. Ed 2d. at 250 n.7)).

A consent to search given by a third-party satisfies the Fourth Amendment so long as the party has "authority to bind the other party." State v. Crumb, 307 N.J. Super. 204, 242 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). "New Jersey is among the overwhelming majority of [jurisdictions] holding that a parent has the right to consent to the search of the property of his or her son or daughter." Id. at 243. "Even in cases where the child has reached adulthood, courts have been reluctant to find that the son or daughter has exclusive possession of a room in the parent's home." Id. at 243-44.

The parent's capacity to consent to a warrantless search is grounded on the "parent's authority as head of the household or owner of the property, as an exercise of parental authority over the [child] or as a co-tenant or common resident". State v. Douglas, 204 N.J. Super. 265, 279 (App. Div.) certif. denied, 102 N.J. 378 (1985)(internal citations omitted); see Crumb, supra, 307 N.J. Super. at 243. Factors to be considered in determining whether the child had exclusive possession of the room include whether or not the child paid rent; whether the parent has access to the child's room for cleaning or other purposes; and whether or not the child has the right to lock the door to deny access. Id. at 245. While the State need not prove that the third person was informed of the right to refuse consent, Schneckloth, supra, 412 U.S. at 248-49, 93 S. Ct. at 2058-59, 36 L. Ed. 2d at 861, the State has the burden of demonstrating knowledge on the part of the third-party that they had a choice in the matter. State v. Johnson, 68 N.J. 349, 354 (1975).

We agree with Judge DeStefano's conclusion that "Mrs. Chen had the requisite access and control over defendant's room" to consent to a search. Further, we agree with Judge DeStefano that Mrs. Chen voluntarily consented to the search of the room. Judge DeStefano rightly observed that Mrs. Chen actively initiated the police response and wanted the police to search defendant's room and locate the drugs and associated paraphernalia. Whether a person has authority to consent to a search is measured against an objective standard. The question is whether, on the facts available to the officer at the time, a man of reasonable caution would be warranted in the belief that the consenting party had authority over the premises. Crumb, supra, 307 N.J. Super. at 243.

Similarly, we reject defendant's contention that the police officers embarked upon a plan to deny defendant an opportunity to withhold permission to search the bedroom. As the Supreme Court explained in Georgia v. Randolph, 547 U.S. 103, 121, 126 S. Ct. 1515, 1527, 164 L. Ed 2d 208, 227-28 (2006), "[s]o long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection," the consent is valid. Judge DeStefano properly applied this standard to the facts. He specifically found that defendant was not actively detained or removed from the home for the purpose of avoiding his objection. We agree with Judge DeStefano that there is "no indication that defendant was actively removed from his home or that he was actively detained to prevent him from objecting to a search of his room."

Defendant also contends that because he was detained and "interrogated" by Officer Hammarstrom without the benefit of first being read his Miranda rights, his statements to that officer should have been suppressed. However, Miranda warnings are not required before engaging in "'[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.'" State v. Ebert, 377 N.J. Super. 1, 9 (2005)(quoting Miranda, supra, 384 U.S. at 477, 86 S. Ct at 1629); see also State v. Gosser, 50 N.J. 438, 446 (1967).

Also, officers are "not required to give Miranda warnings before asking questions reasonably related to dispelling or confirming suspicions that justify the detention." State v. Smith, 374 N.J. Super. 425, 431 (App. Div. 2005)(citing Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S. Ct. 3138, 3150 (1984)). In Gosser, supra, 50 N.J. at 446 the court held that police were not required to supply Miranda warnings before asking defendant what the trouble was after they had been dispatched to his home and discovering he had blood on his pajamas and face.

Here, Officer Hammarstrom did not arrest defendant or give any indication that defendant was in custody. Instead, he simply asked defendant what was going on. It was at this point that defendant said he had gotten into a dispute with his mother which arose from his drug problem and his mother finding drugs in his bedroom. Consequently, it is clear that Officer Hammarstrom questioned defendant simply to "ascertain what was going on rather than to elicit an incriminating response." State v. Coburn, 221 N.J. Super. 586, 598 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988).

II

Defendant also contends that the court erred in denying his motion to dismiss the indictment. Approximately three weeks after the grand jury returned its indictment, Mrs. Chen wrote a letter to the prosecutor's office advising that "what I showed to police was something I withheld for months. It was not something [defendant] had." Judge DeStefano rejected this argument and noted that "although defendant appears to assert that Mrs. Chen's subsequent letter to the prosecutor's office and statement to a defense investigator are clearly exculpatory, this court does not so easily reach such a conclusion." Moreover, "because of the inherently specious nature of recantation testimony, this Court disagrees with defendant and does not find that the Prosecutor's refusal to re-present the matter to the Grand Jury is clearly arbitrary and rises to the level of an abuse of office." We agree.

"Whether an indictment should be dismissed or quashed lies within the discretion of the trial court." State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18 (1984). The trial court's discretion should only be "exercised . . . on 'the clearest and plainest ground'" and only when the indictment is "'palpably defective.'" Id. at 18-19 (quoting State v. Weleck, 10 N.J. 355, 364 (1952)); see also State v. Hogan, 144 N.J. 216, 228-29 (1996). The trial court's decision should not be overturned unless the court's discretion was "clearly abused." Hogan, supra, 144 N.J. at 229.

Our Supreme Court has imposed only a limited duty on prosecutors to provide evidence to a grand jury "that is triggered only in the rare case in which the prosecutor is informed of evidence that both directly negates the guilt of the accused and is clearly exculpatory." Id. at 237. In other words, "the prosecutor's duty arises only if the evidence satisfies two requirements: it must directly negate guilt and must also be clearly exculpatory." Ibid. Here, the statement of Mrs. Chen, defendant's mother, was given three weeks after the grand jury handed up defendant's indictment and thus it could not be said, under any circumstances, that the prosecutor failed to present evidence that is clearly exculpatory. Moreover, we find no obligation on the part of the prosecutor to re-present a matter to a grand jury upon the recantation of defendant's mother in a circumstance like that at bar.

Affirmed.

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