STATE OF NEW JERSEY v. LUIS A. MONTAS

NOT FOR PUBLICATION WITHOUT THE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.

LUIS A. MONTAS,

Defendant-Appellant.

_____________________________________

June 11, 2015

Submitted May 5, 2015 Decided

Before Judges Fisher, Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-01-0149.

Law Offices of James M. Doyle, attorneys for appellant (Mr. Doyle, of counsel; Jane M. Personette, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant Luis Montas guilty of possession with intent to deliver a controlled dangerous substance (CDS), methylenedioxymethamphetamine, commonly called ecstasy, and a judge sentenced him to a thirteen-year prison term. On appeal defendant seeks to have his conviction overturned on three grounds: the trial court erroneously denied his motion to suppress 1479 ecstasy pills seized without a warrant by the police who stopped the car in which he was riding; the trial court erroneously denied his motion to suppress his admission to police that the pills were his; and the trial court erred by denying his motion to compel the State to disclose the name of a confidential informant. Defendant alternatively argues that his sentence is excessive. Although we conclude that defendant's statement to the police should have been suppressed we also conclude that its admission at trial was harmless error. Accordingly, we affirm defendant's conviction and sentence.

A Bergen County grand jury charged defendant and a co-defendant in a single count indictment with first-degree possession with intent to deliver a CDS, ecstasy, N.J.S.A. 2C:2-6, 2C:35-5(a)(1) and 2C:35-5(a)(1). Defendant filed numerous pre-trial motions, including a motion to suppress the ecstasy, a motion to suppress his inculpatory statement to police, and a motion to compel police to disclose the name of a confidential informant. The court denied those motions.

When the jury could not reach a verdict at defendant's first trial, the judge declared a mistrial. The jury at defendant's second trial found him guilty. The court sentenced defendant to a thirteen-year prison term with a fifty-two month period of parole ineligibility and imposed appropriate fines and assessments. This appeal followed.

The State presented the following evidence at the suppression hearing. On November 18, 2010, an undercover Bergen County Narcotics Task Force detective, whom we shall call Detective Holmes to preserve his anonymity, received a telephone call from a confidential informant who gave Holmes defendant's cellular phone number. That night, during six recorded telephone conversations, some initiated by Holmes, others by defendant, defendant agreed to sell Holmes 1500 ecstasy pills for $5125. Defendant also agreed to meet Holmes the next day at the Garden State Plaza in Paramus. Holmes arranged with Narcotics Task Force officers for surveillance and back-up units as well as recording equipment to record his discussions with defendant.

The following day, during three recorded phone calls, defendant confirmed that he would sell Holmes 1500 pills for $5125 and said he would meet Holmes at 3:00 p.m. at the Garden State Plaza. They met in front of a designated store but defendant declined to consummate the sale; he had seen police in the area, or at least suspicious looking cars, so he did not want to make the exchange there. Defendant said he would call Holmes and let him know where they would meet. The following conversation was recorded

[Detective Holmes]: Listen, listen, Luis do this, let[']s do this better, come in my car and you check for everything - what's up bro? Get in my car you check my stuff I check yours and that's it, I leave you where you want and you go by your side.

[Defendant]: That's fine, so then look at what we are going to do. You know my girlfriend is in the mall buying something right now, I am going to look for her and what we are going to do is that. I am going to call you, in the first exit when you take that highway again, there because I don't want to see nobody else around her.

Detective Holmes agreed to wait.

Defendant and Holmes separated. Holmes' lieutenant, who had been conducting surveillance, pulled up in an unmarked car and said that defendant got into a car that was headed toward the Garden State Parkway. Holmes said they should stop the car because defendant probably would not return. Holmes returned to his office.

Surveillance officers had observed defendant get into the rear passenger side seat of a silver Chrysler Concorde, which then headed toward the Garden State Parkway. Detective Brian Kelly, who had been following the silver Concorde, initiated a motor vehicle stop. Other units arrived shortly thereafter. Sgt. Jason Love approached the driver, requested her credentials, and explained that the police were conducting a narcotics investigation. The driver agreed to consent to a police search of her car and signed a consent form. However, before the officers commenced the search, a "rubbernecker" passing in a vehicle struck the side view mirror of Sergeant Love's unmarked car. With the consent of all parties, the police and the three occupants of the Concorde went to the prosecutor's office.

Once at the prosecutor's office, Detective Kevin Matthew began to search the Concorde. He had been present when the driver had consented to the search and signed a consent form. On the rear seat, behind the driver, was a pocketbook in which Detective Matthew "immediately observed what seemed to be narcotics . . . ." The pocketbook was open and Detective Matthew could see what appeared to be drugs. From his training and experience, which included hundreds of narcotics investigations involving different types of narcotics such as cocaine, heroin, ecstasy, and marijuana, the pills appeared to be ecstasy pills or tablets.

Detective Matthew asked the two females who the bag belonged to. Co-defendant Carla Rosario said the pocketbook belonged to her. When Matthew asked Rosario if she minded "if we took a look in the pocketbook[,]" she responded: "No, I have no problems with you doing that. I have nothing to hide." Detective Matthew told Rosario that if she permitted them to look through the pocketbook, she could also tell them to stop at any point. She again responded: "I don't have a problem with you going through my bag. I have nothing to hide." Detective Matthew then reached into the bag and retrieved the narcotics. He testified that Rosario was very surprised and had a look of shock on her face. Defendant had a blank look on his face.

After finding the pills, the police interviewed the Concorde's three occupants. Detective Jason Hornstra interviewed defendant. The detective advised defendant of his Miranda1 rights using "the Bergen County Prosecutor's Office standard Miranda form." Defendant signed the form and Detective Hornstra and another detective witnessed it. The entire interview was recorded. After defendant signed the Miranda form the following colloquy ensued

[Officer]: Luis, what we're [going to] do is we're [going to] go over what happened today. Okay. From the start of your day.

[Defendant (interrupting)]: Before we talk I have the right to get a lawyer?

[Officer]: Yeah, you do.

[Defendant]: Okay, so I'm not talking about it.

[Officer]: You don't want to talk about nothing?

[Defendant]: The only thing I am saying is that the thing is mine and I'm not speaking.

[Officer]: Okay, well, I don't know what that means the thing is yours.

[Defendant]: Whatever you found in the car is mine and can I call my lawyer?

[Officer]: If that's what you want to do, but that's what [I am] saying. Do you want to talk to us or [do] you want your lawyer?

[Defendant]: No, I want my lawyer.

[Officer]: You want your lawyer?

[Defendant]: Yes.

[Officer]: Okay, no problem. I'm [going to] end this right now. 3: 57 P.M. November 9th. We'll be right back.

Based on the State's evidence, the trial court denied defendant's motion to suppress the ecstasy and his statement. The court found the testimony of the officers, corroborated by the recorded telephone conversations between defendant and Holmes, credible. The court determined that the police had a reasonable suspicion that drugs were on defendant's person inside the Concorde. Further, because the police had a reasonable suspicion of criminal activity within the vehicle, they had the right to ask its driver for consent to search it.

The court found that the driver knowingly and voluntarily consented to the search. Having determined that an officer legally entered the car pursuant to a valid consent to search it, the court further found that the plain view doctrine applied to Detective Matthew's discovery of the ecstasy in Rosario's pocketbook. Moreover, the court determined that Rosario voluntarily consented to the search of her pocketbook.

As to defendant's statement, the court found that in response to the detective "confirming" defendant did not want "to talk about anything," defendant blurted out that the only thing he was saying was "the thing is mine." That response prompted the detective to ask for clarification on what "thing" defendant was speaking about, to which defendant responded, "whatever you found in the car." The court explained that defendant "clearly initiated the conversation by blurting out the words, '[t]he only thing I'm saying is the thing is mine.'" The court also determined that nothing in the detective's interaction with defendant suggested that it was "reasonably calculated to elicit an incriminating response." Rather, according to the trial court, the detective "scrupulously honored [defendant's] right against self-incrimination and did not continue to question [defendant] after that right was invoked. Instead [defendant] voluntarily and knowingly opted to give an inculpatory statement." As such, the court ruled that the statements were admissible at trial.

In a separate ruling, the court denied defendant's motion to compel the State to disclose the identity of the confidential informant. Noting a presumption against disclosure, the court determined that the informant was neither an essential witness nor an active participant in the crime; his identity was unnecessary to a reasonable defense of entrapment; and it was unnecessary to require disclosure as a matter of fundamental fairness.

The State's proofs at trial were similar to those the State presented at the suppression hearing. The State also produced an expert on narcotics distribution. Defendant raises no issues with respect to the trial other than the admission of the drugs and his statement, all of which, he argues, should have been suppressed. Specifically, on appeal defendant raises the following points for our consideration

Point I

THE COURT BELOW ERRED IN FAILING TO SUPPRESS EVIDENCE SEIZED AS THE FRUITS OF AN UNLAWFUL MOTOR VEHICLE STOP.

Point II

THE COURT BELOW ERRED IN FAILING TO SUPPRESS PHYSICAL EVIDENCE AS THE WARRANTLESS SEARCHES CONDUCTED IN THIS MATTER VIOLATED THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

a. The search of [the driver's] car was unlawful.

b. The "consent" to search given by [the driver] is invalid.

c. The search of Ms. Rosario's pocketbook was unlawful.

Point III

THE COURT BELOW ERRED IN FAILING TO SUPPRESS BASED UPON CLEAR VIOLATIONS OF MIRANDA v. ARIZONA.

a. The non-verbal responses of [the driver] and Ms. Rosario, consenting to the search of the vehicle and of the pocketbook are subject to suppression.

b. The questioning of Mr. Montas continued after he asserted his right to counsel.

Point IV

THE COURT BELOW ERRED IN FAILING TO ORDER THE STATE TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT (CI).

Point V

THE SENTENCE IMPOSED BY THE COURT BELOW IS EXCESSIVE.

 
a. The trial court erred in failing to credit defendant with all applicable mitigating factors.

b. The [c]ourt below erred in failing to sentence defendant consistent with a conviction for a crime one degree lower than that for which he was convicted. (not argued below).

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 do so "because those findings 'are substantially influenced by [an] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). For that reason, a trial court's findings of fact may be disturbed only when "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). Our review of a trial court's legal conclusions, however, is plenary. State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010), aff'd, 206 N.J. 39 (2011) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Having considered Points I and II under our standard of review, we find insufficient merit in the arguments raised in those points to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments. Law enforcement officers may carry out an investigatory stop of an automobile without contravening the Fourth Amendment or Article I, paragraph 7 of our State Constitution "'if they are aware of specific articulable facts, together with the rational inferences from those facts, that reasonably warrant suspicion that the vehicles' were involved in criminal activity." State v. Arthur, 149 N.J. 1, 9 (1997) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975)).

Here, defendant agreed to sell 1500 ecstasy pills to an undercover police officer, met the police officer at a pre-arranged location, confirmed, either implicitly or explicitly that he had the pills, but refused to consummate the transaction because he suspected police were in the area. When he declined to consummate the sale, defendant said he would phone and tell the officer where to meet him to consummate the sale. After walking away from the officer, defendant eventually drove off in the same car in which he arrived. Those facts and circumstances, and the reasonable inferences derived from them, warranted the Narcotics Task Force officers' suspicion that defendant possessed illegal narcotics either on his person or in the car in which he rode to and from his rendezvous with Detective Holmes. The trial court correctly concluded that the officers' investigatory stop of the Concorde was neither unreasonable nor unconstitutional.

In Point II, defendant argues, among other things, that the warrantless search of the car was unlawful because the driver's consent was involuntary, that the trial court incorrectly determined that the ecstasy pills in Rosario's pocketbook were in plain view, and that Rosario's consent to the search of her pocketbook was involuntary. The trial court found to the contrary as to each issue, and its findings are supported by ample credible evidence in the record. In view of our general deference to a trial court's factual determinations, and because the trial court's determinations here are supported by the record, we reject defendant's arguments.

Next, in Point III, defendant argues that his statement, as well as those of the other occupants consenting to the search of the car and the pocketbook, should have been suppressed. He contends the other occupants should have been given Miranda warnings before being asked to consent to the searches. Stated differently, the "essential predicate [is] the attempted vicarious assertion of [the other occupants'] constitutional right[s] against self-incrimination." State v. Baum, 199 N.J. 407, 412 (2009). As our Supreme Court has ruled, however,

[t]hat right, . . . both as articulated in the Fifth Amendment of the United States Constitution and as embraced in our statutory and common law, is a purely personal one. We therefore conclude that defendant lacks standing to assert the violation of that right as the basis for his challenge to the search at issue. [Ibid.]

Baum is dispositive; defendant did not have standing to assert the Fifth Amendment rights of the passengers.

On the other hand, we agree with defendant that his statement should have been suppressed. Preliminarily, we note that our standard of review does not require deference to a trial court's factual findings based on a videotape that is available to us.

[W]hen the trial court's sole basis for its findings and conclusions is its evaluation of a videotaped interrogation, there is little, if anything, to be gained from deference. In that circumstance, as we have observed, appellate courts are not confined to a review of a transcript nor obliged to defer to the trial court's findings, but may consider the recording of the event itself. [State v. Alston, 204 N.J. 614, 626 n.2 (2011)] (citing State v. Harris, 181 N.J. 391, 415-16, 419 (2004)). When the trial court's factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court and are not dependent on any testimony uniquely available to the trial court, deference to the trial court's interpretation is not required. Appellate courts need not, and we will not, close our eyes to the evidence that we can observe in the form of the videotaped interrogation itself.

[State v. Diaz-Bridges, 208 N.J. 544, 565-566 (2011).]

Here, defendant signed a Miranda waiver form that stated explicitly: "You may stop answering questions or request an attorney at any time." After signing the waiver, defendant interrupted the interrogating officer's first question and asked, "Before we talk I have the right to get a lawyer?" When the officer said, "Yeah, you do," defendant stated: "Okay so I'm not talking about it." The officer then asked, "You don't want to talk about anything?" It was in response to that question that defendant said, "the only thing I am saying is that the thing is mine and I'm not speaking."

The distinct constitutional rights to remain silent and to have counsel present during custodial interrogations "are necessary 'to guarantee full effectuation of the privilege against self-incrimination.'" State v. McCloskey, 90 N.J. 18, 25 (1982) (quoting Johnson v. New Jersey, 384 U.S. 719, 729, 86 S. Ct. 1772, 1778, 16 L. Ed. 2d 882, 890 (1966)). For that reason, if a suspect undergoing custodial interrogation invokes his right to counsel after receiving Miranda warnings, all interrogation must cease immediately until an attorney is present. Edwards v. Arizona, 451 U.S. 477, 485, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386-87 (1981) (citations and internal quotation marks omitted); McCloskey, supra, 90 N.J. at 28. So fundamental is the right to counsel during custodial interrogation that even "an equivocal request for an attorney is to be interpreted in the light most favorable to [the] defendant." State v. Wright, 97 N.J. 113, 119 (1984) (citing McCloskey, supra, 90 N.J. at 26 n.1).

"Because courts assume that defendants seek the advantage of such basic protections, they 'indulge every reasonable presumption against waiver of [these] fundamental constitutional rights.'" McCloskey, supra, 90 N.J. at 25 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 2d 1461, 1466 (1938)). The State cannot demonstrate a waiver of the right to counsel merely by showing that defendant "responded to further police-initiated custodial interrogation . . . ." Oregon v. Bradshaw, 462 U.S. 1039, 1043, 103 S. Ct. 2830, 2833-34, 77 L. Ed. 2d 405, 411 (1983). Authorities may resume interrogation only after counsel has been made available to defendant or if the defendant initiates a dialogue. Id. at 1043, 103 S. Ct. at 2834, 77 L. Ed. 2d at 411 (citation omitted).

Here, there was nothing ambiguous about defendant's request for counsel and invocation of his right to remain silent. The interrogating officer should have ceased all questioning immediately, but he did not; rather, he asked, "[y]ou don't want to talk about nothing?" Defendant had just made clear that he did not want to talk about anything. The officer should not have prodded further.

The State asserts that the interrogating officer "did not undermine defendant's right to counsel; rather [he] clarified defendant's intention to invoke his right to counsel." We reject that assertion. There was nothing for the officer to clarify. Defendant had stated, explicitly, "I'm not talking about it" immediately after verifying his right to have counsel present. There was nothing equivocal about defendant's statement.

The State's reliance on Alston, supra, is unpersuasive. There, the defendant asked interrogating officers whether he should have a lawyer with him to which an officer responded, "[y]ou want a lawyer?" Alston, supra, 204 N.J. at 618. Defendant responded, "[n]o, I am asking you guys, man. I don't I'm just I see you guys, man." Ibid. Defendant then continued to fence with the officers along those lines. In contrast, here, after confirming his right to counsel, defendant unequivocally asserted that he chose to say nothing. His statement was unambiguous.

The pronouncements of the United States Supreme Court and our Supreme Court have made abundantly clear that once a defendant invokes his right to remain silent or his right to counsel all questioning is to cease. We decline to undermine those pronouncements by permitting further interrogation in the guise of clarifying questions. Here, as we have said, there was nothing to clarify. Interrogation should have ceased. It did not. Defendant's statement should therefore have been suppressed.

Although defendant's statement should have been suppressed, we may disregard the error of its admission "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. In other words, "an 'error which occurred during the presentation of the case to the jury,' . . . may 'be quantitatively assessed in the context of other evidence presented in order to determine whether it was harmless beyond a reasonable doubt.'" State v. Camacho, 218 N.J. 533, 547 (2014) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S. Ct. 1246, 1264, 113 L. Ed. 2d 302, 330 (1991)).

Aside from defendant's statement, the State proved defendant agreed during multiple telephone conversations over two days to sell ecstasy pills to Detective Holmes. When defendant met Holmes, their conversations were recorded. As previously stated, the only reason defendant chose not to transfer the drugs to the detective was defendant's fear that police officers might be in the area. Surveillance officers observed defendant get into the car that they eventually stopped. Defendant remained in the car until police officers stopped it, ordered him out, and ultimately found the ecstasy. Those circumstances, when analyzed quantitatively and qualitatively, convincingly established beyond a reasonable doubt that defendant possessed the ecstasy pills with intent to sell them. The error in admitting defendant's statement "was harmless beyond a reasonable doubt." Ibid.

Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only these brief comments. Disclosure of the confidential informant's identity was unnecessary to assure a fair determination of the issues. N.J.R.E. 516(b). As to defendant's sentence, the trial court's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010).

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