STATE OF NEW JERSEY v. STEVEN B. BRINDIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4917-11T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

STEVEN B. BRINDIS,

Defendant-Respondent.

_______________________________________

January 9, 2013

Submitted December 11, 2012 Decided

Before Judges Yannotti and Harris.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-11-1173.

SeanF. Dalton,Gloucester County Prosecutor, attorney for appellant (Staci L. Scheetz, Assistant Prosecutor, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Peter T. Blum, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

By leave granted, the State appeals from an order entered by the Law Division on May 2, 2012, granting defendant's motion to suppress evidence obtained in a search of a motor vehicle. We reverse.

On November 30, 2011, defendant was charged with two counts of third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a), and unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b). Thereafter, defendant filed a motion to suppress evidence. The trial court conducted a hearing on the motion.

At the hearing, Officer Michael DeNick (DeNick) of the Westville Police Department testified that on August 20, 2011, he was working the night shift, from 6:00 p.m. to 6:00 a.m. He was in the area of Broadway and Delsea Drive. He observed a car coming up Delsea Drive. The driver and the passenger were not wearing seat belts. DeNick pulled out and started to follow the car.

He turned to his mobile data terminal, and entered the vehicle's license plate number. The car entered a gas station, and DeNick put on his lights, indicating that the car should pull over. DeNick observed that there were at least four persons in the car, two in the front and two in the rear.

After the car pulled into the gas station, DeNick exited his patrol car and approached the car from the driver's side. He asked for the operator's credentials his driver's license, registration and insurance card. DeNick said that the driver was nervous, and his hands were shaking "a little bit." He stuttered and did not give DeNick a quick response to the officer's request.

Jerry Costello (Jerry) was identified as the driver. His mother, Patricia Costello (Patricia), was seated in the back seat, with Jerry's sister, Julie Costello (Julie), and a baby. Defendant was seated in the front passenger seat. Patricia was the owner of the car and she handed DeNick the registration and insurance card for the vehicle.

DeNick asked Jerry if he had his driver's license with him. Jerry said, "No, I left it at home." DeNick asked Jerry, "where's home?" Jerry said it was Brooklawn. He told DeNick that he was coming from Deptford, where he had picked up a friend. DeNick said "a couple of little red flags" went up and he had Jerry exit the car.

DeNick asked Jerry to stand in the rear of the vehicle, and he conducted "a little interview with him." Jerry told DeNick that he had forgotten his license. DeNick asked him if his license was suspended, and Jerry said that it was. DeNick also asked Jerry if there were warrants outstanding for his arrest. Jerry said he did not know. Sergeant Grady (Grady) arrived on the scene, as DeNick's backup.

DeNick asked Jerry for the name of his passenger, and he said his name was "Steve." Jerry told him that the female in the back was his sister, and the baby was her child. DeNick returned to his patrol car, and he contacted County Dispatch, which ran a check for warrants and license suspensions.

DeNick said that Grady covered the car "to make sure nothing was going awry." County Dispatch informed DeNick that Jerry's driver's license was suspended, and he had two outstanding warrants. DeNick placed Jerry under arrest. He handcuffed him behind his back, and placed him in the patrol car.

DeNick went back to the car, and spoke with defendant. Defendant gave DeNick his name but he did not have any identification with him. DeNick gave defendant's name to County Dispatch. Grady was standing by the passenger side of the vehicle, observing the occupants "just for safety reasons." DeNick learned that defendant also had outstanding warrants.

DeNick approached the passenger side of the car. Grady opened the passenger side door, and DeNick asked defendant to exit the car. He told defendant about the warrants. Defendant complied. DeNick had him turn around. He handcuffed defendant and placed him in Grady's patrol car.

DeNick walked back to the car and observed Grady looking down at the car. Grady took his weapon out of its holster, and DeNick did the same. Grady informed him that he saw a bullet in a Crown Royal bag on the floor near the front passenger seat, where defendant had been sitting. DeNick said that it was a purple, dark-colored cloth, drawstring bag, which typically holds a 750 milliliter bottle of liquor. The bag was about six inches high.

DeNick and Grady ordered the other occupants to put their hands up on the seats in front of them. They then had everyone get out of the car. Julie exited the car and sat by a gas pump. Patricia got out with the baby. DeNick asked Julie about defendant. She said he was "[j]ust a friend." He asked whether there was anything in the car they should know about, and Julie said she did not know. They informed Patricia that they had observed bullets in a bag on the front floor board, where defendant had been sitting.

Grady and DeNick asked Patricia for consent to search the car. According to DeNick, Patricia was "pretty hysterical" when told about the bullets. The officers read Patricia the standard consent to search form. The form provided consent to search the vehicle, all of its compartments, and any clothing or bags inside. The form stated that the signatory understood that he or she had the right to refuse to consent.

DeNick testified that Patricia did not have any trouble understanding the form as it was read to her. After Patricia completed the form, providing her consent, DeNick conducted the search. He found twenty six .38 caliber bullets in the Crown Royal bag. He also found a loaded revolver behind the bag under the front passenger seat.

Grady testified that he has attended training courses in firearms, and he is a firearms instructor. He is familiar with various types of handguns and ammunition. Grady said that, during the motor vehicle stop, he was standing behind defendant near the driver's door. He observed the Crown Royal bag on the floor where defendant had been sitting.

Grady took out his flashlight, bent down and tried to look inside the bag. The bag was open. He observed what appeared to be the back end of a bullet. He said the bullet was "very distinctive" because of its pattern and center ring. Grady stated that there was no question in his mind that the object was a bullet.

Grady removed his weapon from its holster. He told the two female passengers to place their hands on the headrests so that he could see them. Grady stated that he took these steps for "[o]fficer safety." He stated that, in his opinion, "where there's bullets, there's guns." Grady told DeNick that he had seen a bullet in the bag on the floor, and they decided that everyone should get out of the car.

Defendant testified that the bag was under the seat where he had been sitting. He stated that, after the officers ordered him to exit the car, Grady immediately reached in and picked up the bag by its drawstring. Grady felt the bag and then opened it. He asked defendant if he knew what was in the bag. Defendant said that he did not.

According to defendant, Grady then informed DeNick that bullets were in the bag. Defendant was placed in a patrol car. Defendant said that, from the car, he saw Patricia sign something and then observed DeNick search the car. Defendant observed DeNick find the gun under the front passenger seat. Grady asked defendant whose gun it was. Defendant said that he did not know. Defendant stated that he never possessed a gun or bullets.

The trial court then placed its decision on the record. The court found the motor vehicle stop lawful because the officer had observed a motor vehicle violation, specifically the failure to wear seatbelts. The court stated, however, that the officers could not undertake a full automobile search based on a "routine motor vehicle violation[.]"

The court stated that during the stop, the officer may request the driver's credentials and run a computer check. The officer may also ask the driver about the nature and purpose of the trip, if the questions are reasonably related to the purpose of the stop. The officer may expand the scope of the investigation if "legitimate suspicion arises" during the stop.

The court determined that there was no justification for a plain view search. The court noted that Grady did observe a bullet or bullets in the Crown Royal bag, but it is not unlawful to possess a bullet. The court stated that Patricia's consent to search was not valid because the officer did not have reasonable and articulable suspicion to seek consent to search the car.

The court found that the officers here had no information indicating that a criminal offense had been committed, or was about to be committed, other than the fact that bullets had been observed. The court stated that bullets alone do not give rise to a reasonable, articulable suspicion.

The court noted that Grady had stated that he had experience seeing contraband in Crown Royal bags, but this did not establish a reasonable, articulable suspicion that there was a gun somewhere in the car. The court stated that it thought this was "a far stretch."

The court also stated its concern with Patricia's consent to search, pointing out that she had been described as being hysterical when she signed the consent-to-search form. The court said that the officers had to stop, wait for Patricia to calm down so that she could provide an informed, voluntary consent or obtain a telephone warrant in order to search the car.

The court concluded that defendant's motion to suppress must be granted. The court entered an order dated May 2, 2012, suppressing the evidence obtained in the search. Thereafter, the State filed a motion for leave to appeal. We entered an order dated June 7, 2012, granting the motion.

The State argues that Grady's observations of the bullet in the Crown Royal bag provided reasonable suspicion that there was a gun in the vehicle. The State therefore argues that the request for consent to search the vehicle was legally valid.

Consent searches following a lawful stop of a motor vehicle are not valid unless the officer had a reasonable and articulable suspicion that a motorist or passenger has engaged in or is about to engage in criminal activity. State v. Carty, 170 N.J. 632, 647 (2002). "In determining the reasonableness of the conduct of the police, an objective test is used." State v. Mann, 203 N.J. 328, 338 (2010) (citing State v. Pineiro, 181 N.J. 13, 21 (2004)).

"[A] reviewing court must assess whether 'the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate.'" Ibid. (quoting Pineiro, supra, 181 N.J. at 21). An officer's "'inarticulate hunches'" or "'subjective good faith'" are not sufficient. Ibid. (quoting State v. Amelio, 197 N.J. 207, 212 (2008)).

The determination of reasonable and articulable suspicion is fact-sensitive, and the court must carefully review the totality of the circumstances. Ibid. (citing Pineiro, supra, 181 N.J. at 22). "[T]he fact that a suspect's behavior may be consistent with innocent behavior does not control the analysis." Ibid. (citing State v. Arthur, 149 N.J. 1, 11-12 (1997)). "'Police officers should consider whether a defendant's actions are more consistent with innocence than guilt; however, simply because a defendant's actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt." Id. at 339 (citing Arthur, supra, 149 N.J. at 11).

We are convinced from our review of the record that the trial court erred in concluding that DeNick and Grady did not have reasonable, articulable suspicion to believe that defendant had engaged or was about to engage in criminal activity. Here, the trial court correctly found that DeNick made a lawful stop of the vehicle. Moreover, DeNick's request for the driver's credentials and limited questioning of defendant and the driver was permissible.

The court erred, however, by finding that Grady's observations of the bullet in the Crown Royal bag did not provide suspicion of criminal conduct that justified the officers' request that Patricia consent to a search of the car and its contents. As the testimony at the hearing revealed, Jerry was nervous when he was questioned by the officer. DeNick learned that Jerry was driving while his license was suspended. Defendant did not produce any identification. DeNick also discovered that Jerry and defendant had outstanding warrants.

The officers were justified in having Jerry and defendant exit the car. When defendant got out of the car, Grady stated that he observed the Crown Royal bag, which was opened at the top. Grady observed what appeared to him to be the back end of a bullet. Grady testified that, based on his training and experience, he had seen contraband in Crown Royal bags. He also testified that it is his belief that, where there is a bullet, there are guns.

The trial court reasoned that the possession of a bullet is not necessarily indicative of criminal conduct. However, the court failed to consider whether defendant's actions are more consistent with innocence than guilt. Ibid. (citing Arthur, supra, 149 N.J. at 11). See also State v. Stovall, 170 N.J. 346, 363 (2002) (reviewing court should consider the officer's experience and knowledge in determining whether reasonable suspicions exist). In that regard, the court failed to give sufficient weight to Grady's testimony that he has training in firearms and ammunition, and is familiar with how weapons and other contraband are transported in motor vehicles.

Grady testified that such objects can be hidden in the glove box, center console, under the seats or in the trunk. He also said that he has seized weapons and other contraband in plain view and in packaging. Grady stated that contraband has been concealed in tissues, aluminum foil, plastic bags, Crown Royal bags, shoes, socks and other clothing. We are therefore satisfied that the officers had reasonable suspicion to seek consent to search the Costello vehicle.

Our conclusion is supported by our decision in State v. Hammer, 346 N.J. Super. 359 (App. Div. 2001). In that case, the State Police made a lawful stop of a motor vehicle for speeding. Id. at 364. The driver was not able to produce a driver's license or other driving credentials. Ibid. The Trooper asked the driver to exit the car and, as he did so, two hollow point bullets fell to the ground from his coat. Ibid.

The Trooper ordered the other two occupants to exit the vehicle. Ibid. He patted down each person "with negative results," and secured the occupants. Ibid. After back-up arrived, another Trooper searched the interior car for concealed weapons. Ibid. The Trooper did not find any weapons, but he did find cocaine and drug-related paraphernalia. Ibid. The Trooper then searched the trunk for weapons. Id. at 365.

We held that this "occurrence immediately created a reasonable belief that that the occupants may possess dangerous weapons or that such weapons may be concealed in the car." Id. at 367 (citing State v. Alston, 88 N.J. 211, 232 (1981)). The Troopers' concerns provided justification for the immediate pat-down of the occupants and the ensuing search of the interior of the car. Ibid. When the Trooper found the drugs and drug-related items in the car, he validly expanded the search to the trunk. Id. at 367-68.

Defendant argues, however, that Grady was someone "akin to a keyhole peeper." Defendant contends that Grady did not have any cause to believe that the Crown Royal bag contained contraband but apparently "decided to go fishing." Defendant asserts that Grady had to bend over and shine his flashlight directly into the gap in the bag before seeing what he thought was the back end of a bullet.

We are not convinced by this argument. We reject defendant's assertion that Grady was essentially "peeping in a keyhole" when he observed the bullet in the Crown Royal bag. The record makes clear that Grady was validly standing by the side of the car when DeNick had defendant exit the car. There is no dispute that Grady observed the Crown Royal bag on the floor of the car, near the front passenger seat where defendant had been sitting.

Grady said that the bag was open at the top, and using his flashlight, he was able to see the back end of a bullet in the car. Grady did not, as defendant claims, make an extraordinary effort to peer into the bag. Rather, Grady engaged in reasonable police actions, based on his training and experience with the concealment of contraband in motor vehicles.

Defendant additionally argues that, even if Grady's observations were sufficient to provide the officers with reasonable suspicion of criminal conduct, Patricia's consent was invalid. Defendant says that Patricia was "the wrong person" to ask for consent. According to defendant, the officers "never believed" that the bag belonged to Patricia.

Defendant therefore contends that the bullets found in the bag were illegally seized and properly suppressed. He maintains that, because the search of the car was premised on the seizure of the bullets, the gun found in that search also was properly suppressed.

We are not convinced by these arguments. Patricia told the officers that she owned the car. The owner of a car has authority to consent to the search of the vehicle, and this authority extends to containers found in the car, in the absence of some claim of ownership by a passenger. State v. Suazo, 133 N.J. 315, 321 (1993).

Here, the bag was found on the floor where defendant was seated, but defendant never said that the bag belonged to him. Defendant says that Patricia "effectively denied any connection to the bag" with her shocked and puzzled reaction when told a bullet had been seen in the car. The officers were not, however, required to accept Patricia's assertions despite her reactions. Moreover, as Grady testified, defendant disclaimed any knowledge of the contents of the bag. We are convinced that, under the circumstances, the officers validly relied upon Patricia's consent to search the car and the contents of the bag.

Reversed and remanded for further proceedings in conformity with this opinion.