STATE OF NEW JERSEY v. GREGORY SKYERS

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

GREGORY SKYERS,

Defendant-Respondent.

__________________________________

July 1, 2015

Submitted March 24, 2015 Decided

Before Judges Nugent and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 14-05-1168.

Joseph D. Coronato, Ocean County Prosecutor, attorney for appellant (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Glenn D. Kassman, Designated Counsel, on the brief).

PER CURIAM

On leave granted, the State appeals the trial court's order suppressing drugs and other evidence seized by police without a warrant from defendant Gregory Skyers and from a black bag in the car he was riding in as a passenger. The trial court ruled that because police based their probable cause to arrest and search defendant on a statement they unlawfully obtained from a buyer to whom defendant had recently sold drugs, the buyer's statement to the officer who stopped her had to be suppressed, and therefore the drugs and needles seized from defendant's person had to be suppressed as the fruit of the buyer's tainted statement. The trial court ruled, too, that the automobile owner's consent to search the car did not include the black bag on the front passenger seat defendant had occupied.

The trial court's finding that the buyer was unlawfully arrested has no support in the motion record. For that reason, we are constrained to reverse and remand this matter so that the trial court can do the following: delineate the statements and physical evidence defendant seeks to suppress; make adequate findings of fact on the record; and render legal conclusions as to all statements and physical evidence that are the subject of the suppression motion.

We also reverse the trial court's decision suppressing the contents of the black bag. We conclude the arresting officer held an objectively reasonable belief that the driver had the authority to consent to the search of the bag.

I.

A grand jury charged defendant in a five-count indictment with two counts of possession of a controlled dangerous substance (CDS), two counts of possession with intent to deliver a CDS, and one count of distribution of a CDS. Following the indictment defendant filed a motion to suppress the CDS and other evidence police had seized from him and from a black bag on the seat of an automobile he had occupied. The court granted the motion. The State sought leave to file an interlocutory appeal, which we granted.

The State presented its proofs at the suppression hearing through a single witness, Officer Andrew Chencharik. His testimony and a consent-to-search form that was introduced into evidence established the following facts. On the clear, sunny afternoon when defendant was arrested, Toms River police officers Chencharik and Duncan Macrae, wearing plain clothes, were sitting in an unmarked police vehicle surveilling the parking lot of a food store. The officers were part of a special narcotics investigation unit. Officer Chencharik had attended numerous training seminars on the topics of use and distribution of narcotics. In addition, his training included "making observations of hand-to-hand transactions on the street[.]"

While conducting surveillance, the officers saw defendant and co-defendant Michael Propst drive into the parking lot, park the Buick Propst was driving, exit the car, and stand in front of the store; neither went in. A woman approached them on foot and Propst handed her a rolled-up magazine, Auto Shopper. Officer Chencharik recognized the woman and knew she had prior arrests for use or possession of drugs, though he had never personally arrested her.

After Propst handed the woman the magazine, she walked with the two men to the Buick and sat in it for "[l]ike a minute, two minutes tops." She then exited and began walking westbound on a nearby road. The Buick headed north on another road. Although neither officer had seen any drugs or any money change hands, they "believed that [they] just observed a drug transaction, based on [their] training and experience and the location where [they] were at, which is a high narcotic area[.]" Officer Chencharik had witnessed numerous other drug sale transactions at that particular food store.

Based on the officers' belief that they had witnessed a drug sale, Officer Macrae went to speak with the woman and Officer Chencharik followed the Buick. As Officer Chencharik followed the car, Officer Macrae radioed and "advised that he made contact with [the woman] who advised him that she . . . had a quantity of heroin in her possession, and that she stated that she got it from the two gentlemen in the car." According to Officer Chencharik, Officer Macrae said the woman had two wax folds containing heroin: one was in the Auto Shopper Propst had handed her, the other she placed in the Auto Shopper after defendant gave it to her.

Officer Chencharik called for a marked car to stop the Buick, but before the marked police car arrived, the Buick stopped in front of a location approximately one mile from the food store. Officer Chencharik exited his car with his badge visible, walked toward the driver's side of the Buick where Propst was sitting, and announced he was a police officer. As he approached the Buick, Officer Chencharik "observed something in [Propst's] hands that [he] thought to be drugs" and asked Propst to get out of the vehicle. Propst got out and "confirmed that it was a wax fold of heroin in his hand[.]" As Officer Chencharik handcuffed Propst, Propst stated he had two syringes on him, which Officer Chencharik recovered during a search of Propst incident to arrest.

Two other officers arrived as Officer Chencharik arrested Propst. Officer Chencharik next went to the passenger side to arrest defendant "[f]or the same reasons that [he] placed Mr. Propst under arrest[.]" Defendant was never read his Miranda1 rights while in Officer Chencharik's custody. Officer Chencharik asked if defendant had anything on him and after defendant said he had drugs, he found "[twenty-three] vials of suspect crack cocaine and [thirty-seven] wax folds of suspect heroin" in defendant's pocket.

After arresting defendant and Propst, Officer Chencharik asked if Propst would give consent to search the interior of his Buick, explaining Propst's right to refuse. Propst agreed and signed the consent-to-search form. Officer Chencharik searched the car and found "a black bag in the front seat" on the passenger side. The bag contained "four hypodermic syringes and three crack pipes." The officer conceded on cross-examination that "because of its location, the bag could have belonged to defendant." Officer Chencharik later learned that defendant owned the black bag.

Defendant and Propst were transported to police headquarters, where Officer Chencharik met Officer Macrae and compared the wax folds Macrae had received from the woman with one seized from Propst and the thirty-seven seized from defendant. All "were stamped Heaven on Earth." All later tested positive for heroin.

The buyer gave a videotaped statement in which she admitted that Propst had given her a wax fold of heroin concealed in an Auto Shopper. She also admitted defendant gave her another wax fold of heroin while she sat in the car. Lastly, she claimed she gave defendant jewelry; but "at no point during [the searches of the individuals] was any jewelry recovered[.]"

Thirteen days after the hearing, in an oral opinion delivered from the bench, the trial court granted defendant's motion. In its findings of fact the court determined, among other things, that "[b]ased on this surveillance, the police approached [the woman] and read her her Miranda rights. After the police told [her] what they observed, she admitted buying wax folds of heroin, one from defendant and one from Propst." Those findings are unsupported by any testimonial or documentary evidence.

After recounting Officer Chencharik's testimony, the court noted that "in order for [the woman's statement] to serve as foundation for the probable cause required to justify defendant's warrantless search and seizure, I must determine whether the initial warrantless stop of [the woman] which elicited the on-scene statement was constitutionally valid." The court found that it was not. After noting that Officer Macrae did not testify at the hearing and that Officer Chencharik did not witness Macrae's interaction with the woman, the court stated that neither the police report nor the radio transmission had been introduced into evidence. The court then explained

Given the statement of facts in both the State's brief and the Public Defender's brief which corroborate an interpretation that [the woman] was arrested prior to making her on-scene statement and my finding that the factual indicia observed during their surveillance did not meet the probable cause threshold, I find that [the woman's] statement must be suppressed and it cannot serve as the catalyst of the finding of probable cause to arrest defendant and search his person.

The court also found that Officer Chencharik had probable cause to arrest Propst after observing Propst carrying what the officer believed to be drugs. The court determined that Officer Chencharik's observation of Propst carrying drugs, combined with the officer's observations of Probst in the food store parking lot, "gives rise to probable cause to arrest." The court thus found Propst's consent to search his Buick valid as to the search of the automobile, but invalid as to the search of the black bag. The court noted the State had failed to present "sufficient evidence of joint control or access to the personal belongings in the vehicle that would support a finding of apparent authority over the black bag."

Having determined that the police could not use the woman's statement to Officer Macrae to establish probable cause to arrest defendant, and having further determined that Propst's consent to search the automobile did not extend to defendant's black bag, the court suppressed the State's evidence.

II.

The State raises the following points on appeal

POINT I

THIS COURT SHOULD REVERSE THE TRIAL COURT'S SUPPRESSION OF EVIDENCE BECAUSE IT WAS BASED UPON ERRONEOUS APPLICATIONS OF LAW.

a. Probable Cause Existed To Believe That a Crime Had Been Committed Based Upon The Events Observed By The Two Police Officers At [the Food Store] Even Before Emily Lioudis Made A Statement About The Drug Transaction.

b. Even If Probable Cause Did Not Exist To Believe That a Crime Had Been Committed Based Solely Upon The Events Observed By The Two Police Officers At [the Food Store], Those Facts And Circumstances Combined With The Lawfully Obtained Statement Of Emily Lioudis Gave Rise To Probable Cause To Permit The Subsequent Stop Of The Propst Vehicle.

POINT II

THE SEARCH OF DEFENDANT'S BAG LOCATED INSIDE THE PASSENGER COMPARTMENT OF THE PROPST VEHICLE WAS LAWFUL BASED UPON THE APPARENT AUTHORITY OF PROPST TO CONSENT TO THE SEARCH OF THE VEHICLE AND ITS CONTENTS.

When reviewing an order granting or denying a motion to suppress evidence, we accept those of the trial court's findings of fact that are supported by sufficient credible evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). We must, of course, consider the suppression motion solely on the record presented at the hearing before the motion judge. See State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999). Our review of the trial court's legal conclusions is plenary. State v. Rockford, 213 N.J. 424, 440 (2013).

The State first argues that "[e]ven without the statement by [the buyer] . . . detailing the drug transaction in which she had just participated, probable cause existed to believe a crime had occurred and to approach her and question her about it." Defendant counters that the State failed to establish that the police encounter with the buyer was lawful because it produced no evidence concerning what occurred between the buyer and the police officer who stopped her.

We disagree with the State's argument. First, if the police had probable cause rather than a reasonable articulable suspicion that the buyer had committed a crime, they could have arrested her, not merely "approach[ed] her and question[ed] her about it." Second, we agree with the trial court that the totality of circumstances did not establish probable cause.

The facts of this case are not significantly different from those in State v. Arthur, 149 N.J. 1 (1997), in which our Supreme Court found that the police had a reasonable articulable suspicion that justified them in stopping an automobile. This is how the Court summarized the facts

A police officer, engaged in covert surveillance in an area known for heavy narcotics activity, observed defendant park his car on the street and a person enter the car on the passenger side, sit next to defendant for a short time, and then exit the car with a paper bag. The officer, believing that a drug sale had occurred, subjected the passenger to an investigatory stop and searched the bag. He found narcotics paraphernalia in the bag. Defendant's car, which had left the scene, was later stopped by the police. On being stopped, defendant spontaneously stated he had drugs in his pocket, as a result of which the police searched him and found cocaine.

[Id. at 3.]

In Arthur, the court was presented with "[t]he basic issue . . . [of] whether the officers had sufficient justification to carry out the investigatory stop of [the defendant's] car, which led to the seizure of the drugs from his person." Id. at 4. However, because "the drug-related items seized from the passenger may have been a relevant circumstance giving rise to the reasonable suspicion that was necessary to justify the stop of defendant's vehicle," ibid., the Court addressed, but did not resolve, whether defendant had standing to contest the stop of the passenger. Significantly, the Court concluded that the officer's observations justified an investigatory stop of the passenger, but not the subsequent search of her person. Id. at 15.

We find the facts in Arthur analogous to those in the case before us. Like the Supreme Court in Arthur, we conclude the officers here had a reasonable articulable suspicion that justified an investigatory stop of the buyer. The facts do not, however, arise to probable cause. See State v. Pineiro, 181 N.J. 13, 29 (2004).

Having determined that the officers here were justified in making an investigatory stop of the buyer, we must next address the trial court's erroneous factual findings and defendant's argument that because the State presented no evidence that her statement and the seizure of the drugs she possessed were lawfully obtained, the State failed to sustain its burden of proof and the motion judge thus correctly granted the suppression motion. We begin with the factfinding.

The trial court found, apparently from the parties' briefs, that the buyer was arrested before making her on-scene statement. The court also found the officer informed the buyer of her Miranda rights and then proceeded to obtain her statement inculpating defendant. Those "facts" do not appear in the record. The parties' briefs are not competent evidence.

The only witness to testify at the suppression hearing, Officer Chencharik, was not present when his partner "made contact" with the buyer. Officer Chencharik did not testify to facts from which the judge could have inferred Officer Macrae arrested the buyer before she gave her on-scene statement, nor did the officer testify about whether his partner had given the buyer Miranda warnings. Because those erroneous factual premises were the lynchpin of the court's decision, the implementing order must be reversed.

Defendant argues that because the State failed to produce any evidence concerning the circumstances under which Officer Macrae stopped the buyer, obtained an on-scene statement from her, and seized the drugs in her possession, the State failed to sustain its burden of proving that the warrantless search of defendant was lawful. We reject that argument for two reasons. First, due to its erroneous fact-finding, the trial court did not have the opportunity to address it. Second, neither the court nor the parties addressed the issue of whether defendant had standing to assert the buyer's constitutional rights.

By standing, we refer to "the essential question [of] whether the defendant moving to suppress evidence obtained and sought to be used against him has . . . interests sufficient to qualify him as a person aggrieved by an unlawful search and seizure." State v. Alston, 88 N.J. 211, 218-19 n.2 (1981). In the case before us, under the Fourth Amendment, defendant has insufficient interests to challenge either the buyer's on-scene statement or the drugs the police obtained from her. "Fourth Amendment rights are personal rights which . . . may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387, 394-95 (1978) (citations and internal quotation marks omitted). Consequently, "a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure." United States v. Padilla, 508 U.S. 77, 81, 113 S. Ct. 1936, 1938, 123 L. Ed. 2d 635, 640 (1993) (citations omitted). A person must have a reasonable expectation of privacy in the place searched or thing seized to challenge the search or seizure under the Fourth Amendment. United States v. Salvucci, 448 U.S. 83, 91-92, 100 S. Ct. 2547, 2553, 65 L. Ed. 2d 619, 628 (1980) (citations omitted).

On the other hand, under Article I, paragraph 7 of the New Jersey Constitution, "a criminal defendant is entitled to bring a motion to suppress evidence obtained in an unlawful search and seizure if he has a proprietary, possessory or participatory interest in either the place searched or the property seized." Alston, supra, 88 N.J. at 228 (citations omitted). But see, State v. Hinton, 216 N.J. 211, 235 (2013) (holding that a defendant who has automatic standing to file a suppression motion due to a possessory interest in contraband seized by police from his former residence nevertheless must have "a substantive right of privacy in the place searched that mandates the grant of [the suppression] motion").

There are certain considerations that bear on whether in the context of the case before us defendant has sufficient interests to qualify him as a person aggrieved by the unlawful seizure and search of the buyer. See, Arthur, supra, 149 N.J. at 12. Those considerations include whether defendant has "clearly . . . abandoned or relinquished his possessory interest in the property being seized"; whether "his participatory interest in that property had become very remote or attenuated at the time of the seizure"; . . . or whether such "participatory interest . . . remain[ed] because, for example, a conspiracy or criminal enterprise is implicated"; and, whether "abandonment or relinquishment of the seized items did not extinguish all privacy interests[.]" Id. at 12-13. Further, the Court noted in Arthur

that our standing rule has been invoked only in the cases in which a defendant has sought to suppress evidence that the State seeks to use directly against the defendant at trial, and not, in a case . . . in which the seizure of the evidence allegedly violated the privacy interests of another person and is not sought to be used as evidence against the defendant to prove guilt, but only to justify an investigatory stop of the defendant.

[Id. at 13.]

Based on the motion record, it appears that defendant clearly had relinquished his possessory interest in the drugs he and Propst sold to the buyer. Defendant had no privacy interest in those drugs. Whether he had a participatory interest is a closer call, though we note that all the parties had departed from the scene where the drug transaction occurred and no conspiracy or criminal enterprise had been implicated.

The Supreme Court's observation in Arthur "that our standing rule has been invoked only in cases in which a defendant has sought to suppress evidence that the State seeks to use directly against the defendant at trial[,]" ibid. raises another issue in this case. In its oral opinion, the trial court did not state that the drugs seized from the buyer were suppressed. The implementing order is generic. The result might be implicit in the court's decision and order, but we need not speculate about it. In its opinion on remand, the court should enumerate the items defendant seeks to suppress. Here, the police seized drugs and other physical evidence from defendant, Propst, the buyer, and a black bag; on-scene statements were made by the three participants; and the buyer gave a recorded statement after being transported to the police department. Each of those evidentiary items may implicate different facts and different legal conclusions concerning standing.

We are not suggesting that the State should be given a second opportunity to present evidence at a suppression hearing. This case amply illustrates the risk the State runs when it fails to produce evidence on issues relevant to its burden of proving that a warrantless search is lawful. The trial court would certainly act well within its discretion by having the parties brief the standing issues as to all evidence and conducting oral argument. We of course leave those procedural issues to the trial court's sound discretion.

We turn to the trial court's suppression of the evidence in the black bag. When police obtain a driver's valid consent to search a car, "[a]bsent 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, 133 N.J. 299, 306 (1993) (citations omitted). Here, "[t]he validity of the search depends largely on whether [Officer Chencharik], at the time of the search, had a reasonable basis for believing that [Propst] had the authority to consent to a search of the [black] . . . bag." Id. at 306. Factors noted in Maristany to be relevant to whether there was anything to alert the officer that the bag belonged to defendant included whether there was anything identifying the bag as belonging to him or whether the passenger had denied ownership of the bag. See id. at 307. In this case, Propst's "status as driver would undoubtedly have been [a] sufficient basis on which to sustain a jury's determination that [he] had constructively possessed the drugs, absent any proof that the bag belonged to defendant." Id. at 308. "If [Propst's] status as driver would constitute an adequate basis to sustain a conviction for possession, that status would also be sufficient to support [Officer Chencharik's] conclusion that [Propst] had possessed apparent authority to consent to the search of the bag[]." Ibid.

Here, the trial court relied upon its interpretation of State v. Suazo, 133 N.J. 315 (1993), that a defendant's silence is not equivalent to a knowing waiver of a constitutional right, that is, consent to a warrantless search, as well as the location of the black bag, in making its decision. But the location of the bag is not dispositive. The question is whether Propst had apparent authority to consent to its search. In that regard, the totality of circumstances would have been sufficient to convict him of constructive possession of the bag's contents. From the officer's observations and the buyer's on-scene statement, it was apparent that Propst and defendant had engaged in a joint criminal enterprise to possess and distribute narcotics. Propst had delivered narcotics to the buyer in a newspaper, and when all three were in the car, defendant, in Propst's presence, had delivered additional narcotics to the buyer. Those circumstances, in addition to Propst's apparent control of the vehicle and its contents by virtue of his being the driver, gave the police an objectively reasonable belief that he had apparent authority to consent to the search of the bag.

Moreover, the trial court overlooked a key fact in Suazo; there, when police searched an automobile with the driver's consent, the passenger identified as his a red bag from which the police seized cocaine. Id. at 318. The Court held that "[i]n view of defendant's assertion of ownership of the red bag, we are impelled to conclude that [the trooper's] reliance, without further inquiry, on [the driver's] consent to search the vehicle was unreasonable." Id. at 322. Here, defendant did not assert that the bag was his until after Officer Chencharik had searched it.

The trial court found that Propst knowingly and voluntarily consented to Officer Chencharik searching the car and its contents. Officer Chencharik had an objectively reasonable belief that Propst had the authority to consent to the search of the bag, notwithstanding the bag's location in the passenger seat. For those reasons, we reverse the trial court's suppression of the bag's contents.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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