STATE OF NEW JERSEY v. WILLIE D. ANDERSON JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIE D. ANDERSON, JR.,

Defendant-Appellant.

November 30, 2015

Submitted October 7, 2015 Decided

 
Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-02-0398.

Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief; Garima Joshi, on the brief).

PER CURIAM

Defendant Willie Anderson, Jr., appeals from the denial of a motion to suppress evidence seized from a book bag found in the trunk of his automobile. After the motion was decided, defendant entered a plea of guilty to third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), and was sentenced pursuant to his agreement with the State to a one-year probation term with credit for time served. The two other counts of the indictment, including a third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:357, and motor vehicle summonses, were dismissed. Because we conclude defendant's consent to search was valid, we affirm.

The following circumstances were developed during the suppression hearing. The only witness proffered by the State was New Jersey State Trooper Nicholas Carlini. He testified1 that at approximately 12:30 a.m. on November 7, 2010, he was on patrol in Asbury Park in a "high drug trafficking area[,]" when he observed defendant's car in a residential area travelling thirty-four miles per hour in a twenty-five-mile per hour zone.

When Carlini stopped defendant and spoke to him, he smelled the odor of burnt marijuana emanating from the interior of the car. Both defendant and his passenger denied that they had been smoking anything, although defendant claimed that the passenger had been smoking a cigarette. The two were instructed to get out of the vehicle, and defendant was placed under arrest. Defendant was patted down, and his pack of cigarettes was searched. During the search, defendant repeatedly denied having smoked marijuana.

Carlini placed defendant in the back of his squad car and asked him for consent to search the car. He assured defendant that he was "not going to go to jail tonight." Carlini also placed the passenger in handcuffs and searched him, finding no contraband. He placed the passenger in the back of the squad car alongside defendant and completed the standard consent to search form.

Carlini read the standard form to defendant, as once a suspect is in handcuffs, they are read the consent and respond orally to avoid the necessity of removing the cuffs. The form included language authorizing a complete search of the vehicle and consented "to [the] remov[al] and search [of] any letters, documents, papers, materials, or other property which is considered pertinent to the investigation . . . ." The form stated that defendant had the right to refuse and might leave the scene if there were no other reasons he was being detained. It also informed defendant that he had the right to withdraw his consent at any time.

Initially, defendant refused. Carlini then told him that if he declined his car would be impounded while Carlini applied for a search warrant, and he would be detained at the police station. He also explained that if the search did not yield marijuana, defendant would not be charged with anything and would be released. Because the passenger was becoming disruptive, he was placed in a second trooper's vehicle.

Once Carlini was alone with defendant, he reiterated that whether based on consent or on a search warrant, he would "search the car tonight." He further advised defendant that "if it's not getting searched tonight, it'll get searched Monday when I contact a Superior Court judge. I don't care either way."

When defendant asked about the extent of the search, Carlini responded he intended to search the entire vehicle, including "the trunk, everything." Defendant responded, "alright, the trunk and everything, whatever, alright." Carlini specified that the consent would include "everything in the car; you can't tell me I can't consent to certain items." Defendant then said "man, he better not have nothing in [inaudible either "the" or "his"] book bag or [inaudible]." Shortly thereafter, defendant said "look, you you can search my car because I I don't have nothing in my car . . . nothing in my car. I picked him up, with a book bag, and that's it." When Carlini searched the car, he found a backpack in the trunk. Inside the backpack was a white shoe containing 300 wax paper folds of heroin, paper, rubber bands, and a stamp marked "paid." At the plea hearing, defendant said the backpack belonged to his passenger, but that at the time he allowed him to place it in the trunk, he knew it contained heroin.

The court concluded that defendant's consent was valid. He opined that probable cause for arrest was established when Carlini smelled the odor of burnt marijuana and that Carlini's statement that the car would be impounded while he applied for a search warrant, even if defendant did not consent, was neither threatening nor coercive, but merely an accurate description of future events. Carlini explained to defendant that since the warrant might not issue until Monday, defendant would have to return to the barracks. Thus the trial judge considered the search of defendant's vehicle to have been lawful under the consent exception to the warrant requirement.

The transcript of the motion to suppress does not include oral argument on the part of counsel, either at the start or end of Carlini's testimony. No mention is made in the judge's written decision of any submissions by either counsel; none are included in the appellate brief appendices.

On appeal, defendant raises the following point of error

POINT I

BECAUSE THERE WAS NO EXCEPTION TO THE WARRANT REQUIREMENT THAT JUSTIFIED THE WARRANTLESS SEARCH OF THE DEFENDANT'S CAR, INCLUDING THE TRUNK, ANY EVIDENCE SEIZED FROM THE CAR SHOULD HAVE BEEN SUPPRESSED. U.S. CONST. AMENDS IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7.

A. THERE WAS NO EXIGENCY TO EXCUSE THE FAILURE OF THE POLICE TO OBTAIN A WARRANT.

B. THE SEARCH WAS NOT PURSUANT TO A VALIDLY OBTAINED CONSENT.

Although not explicitly stated, it is clear from the trial judge's decision that he found Carlini credible. Whether because of the availability of the video of the stop and ensuing discussion regarding the consent to search or for some other reason, nowhere in his written decision does the judge question Carlini's statements. In reviewing a motion to suppress decision, we uphold the trial court's factual findings so long as they are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243 (2007). A trial court's findings should only be reversed if they are "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. Id. at 245. A trial court's application of the law to the facts on a motion to suppress are reviewed de novo. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).

Defendant contends initially that no exigency excused Carlini's failure to obtain a search warrant. In our view, none was necessary. The State does not argue that there was an exigency that created some exception, nor did the trial court consider that to be the case.

Rather, the judge found that defendant was legitimately stopped because he was speeding late at night in a residential zone, and that the arresting officer smelled the odor of burnt marijuana as he spoke to defendant through the open window of the vehicle. The Supreme Court has recently reaffirmed that "the smell of marijuana itself constitutes probable cause that a criminal offense has been committed and that additional contraband might be present." State v. Myers, ___ N.J. ___ (Sept. 8, 2015) (slip op. at 9) (internal brackets and quotation marks omitted). The odor alone gives officers the right to arrest for the commission of "an apparent marijuana offense" in the officer's presence. Myers, supra, ___ N.J. at ___ (slip op. at 11). Myers also put to rest defendant's argument that the enactment of the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 to -16, made defendant's arrest illegal. It did not. Myers, supra, ___ N.J. at ___ (slip. op. at 21-22).

Since the initial stop and arrest were valid, the next point we must address is defendant's claim that a warrant should have been obtained and that therefore the consent was not valid. The United States and New Jersey's Constitutions protect individuals from unreasonable searches and seizures. U.S. Const. Amend. IV; N.J. Const. Art. I, Par. 7. A warrant is generally necessary prior to a search and seizure. A warrantless search is presumed invalid and the State bears the burden of proving the search "falls within one of the few well-delineated exceptions to the warrant requirements." State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)) (internal quotation marks omitted). These exceptions include a search conducted pursuant to a valid consent. State v. Domicz, 188 N.J. 285, 305 (2006).

Therefore, the only question that must be addressed is whether the consent was valid. Where consent is given, there is no requirement for a warrant. Ibid. What is necessary prior to seeking consent is a "reasonable and articulable suspicion of criminal wrongdoing." State v. Carty, 170 N.J. 632, 635, modified on other grounds, 174 N.J. 351 (2002).

We agree with defendant that in order for consent to be valid it must be voluntary; the assent must be freely given. Defendant urges us to conclude that pursuant to the factors found in State v. Kane, 44 N.J. 346, 352-53 (1965), the consent was not voluntary. To the contrary, like the trial judge, we find that the statements Carlini made were neither threatening nor coercive, merely realistic.

As we explained in State v. Cancel, 256 N.J. Super. 430, 434 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993), when a defendant is told that if he or she does not consent to a search, a warrant will be obtained, the statement is not coercive or threatening. It is merely "a fair prediction of events that would follow . . . ." Ibid. That the trooper had sufficient probable cause for the issuance of a search warrant was clear because the arrest stemmed from the odor of burnt marijuana in the motor vehicle. Carlini had the authority to impound the vehicle until a warrant was obtained if need be. Thus his statements to defendant "were not a deceptive threat made to deprive [a suspect] of the ability to make an informed consent." Ibid. Furthermore, a voluntary and informed consent can be upheld even if defendant initially declined consent. See id. at 433.

Although defendant was under arrest when he consented to the search, that factor alone does not negate the voluntary nature of his assent. Defendant was made well aware of his ability to refuse, to stop the search at any time, and the reality that even if he did not consent, a warrant would be obtained. Thus, applying these principles to the matter at hand, we conclude that the trial court correctly held defendant's consent was voluntary.

In a footnote, defendant raises for the first time the issue of whether the consent extended to the contents of a backpack he had claimed did not belong to him. In making the argument, defendant relies upon State v. Maristany, 133 N.J. 299, 307 (1993). Again, we do not agree.

It bears noting that the written consent to search form read to defendant specified that the consent included "a complete search of the entire vehicle and contents within . . . ." It further specified that the consent gave Carlini the right "to remove and search any letters, documents, papers, materials, or other property which is considered pertinent to the investigation . . . ." Certainly when police search a vehicle based on consent, the search is "limited by the scope, whether expressed or implied, of the consent." State v. Leslie, 338 N.J. Super. 269, 274 (App. Div. 2001) (internal quotation marks and citation omitted).

Yet in this case, the scope of the search by its very terms was unlimited. Defendant acknowledged that the trunk would be searched, and was certainly aware that the search would include items found in the trunk.

The issue of the officer's search of the book bag in light of defendant's somewhat ambiguous repudiation of ownership is more difficult. But in light of the language of the consent and defendant's understanding of what would occur during the search, Carlini had no reason to believe defendant did not have the authority to consent to a search of the book bag.

"Absent evidence that the driver's control over the car is limited, a driver has the authority to consent to a complete search of the vehicle, including the trunk, glove compartment, and other areas." State v. Maristany, supra, 133 N.J. at 306. Like in Maristany, this driver had knowledge of the contents of the trunk, thereby supporting the notion that he had the authority to consent. See id. at 307. Like in that case, once the trunk was open, nothing would have given Carlini any reason to conclude that defendant lacked the authority to consent to the search of the bag. Under these circumstances, like in that case, the trooper had a reasonable basis for his belief that the driver "had apparent authority to consent to the search" of the book bag. Ibid.

Although defendant argues that in hindsight defendant's statements to the officer should have given him an objective basis from which to conclude the book bag belonged to the passenger, at the time the officer reviewed the consent with defendant, and defendant agreed, the officer had no reason to believe that defendant had no proprietary interest in the book bag. Defendant never clearly repudiated ownership of the book bag. He merely stated that he "picked [the passenger] up with a book bag . . . ." and that "he better not have nothing [sic] in [inaudible either "the" or "his"] book bag . . . ." Defendant never made clear that he did not own the bag or that he lacked authority to consent to the search. The ambiguous and perhaps inaudible repudiation, particularly when considered in light of defendant's explicit acknowledgement of the broad scope of the search, provided the officer a reasonable basis for believing that defendant had authority to consent to a search of the book bag. See Maristany, supra, 133 N.J. at 306. A consent for the search could have been obtained by the other state trooper at the scene who had placed the passenger in the rear seat of his vehicle. It was as easy to obtain two consents, or one, and a later search warrant, had the officer had an objective reason to believe at the time that a separate consent was necessary. See also State v. Suazo, 133 N.J. 315, 320 (1993). Accordingly, we conclude that Carlini's search of the backpack based on defendant's consent was reasonable.

Affirmed.

1 In addition to his testimony, the trial court had available the video recording of the traffic stop.