STATE OF NEW JERSEY v. WILLIE TANNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3827-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIE TANNER,

Defendant-Appellant.

_______________________________________

January 5, 2011

Submitted December 6, 2010 Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-02-00109.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Michael McLaughlin, Sr., Deputy Attorney General, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

After defendant Willie Tanner's motion to suppress evidence seized from his bedroom on October 3, 2003, was denied by Judge Frank W. Gasiorowski, defendant pleaded guilty to two counts of first-degree robbery pursuant to N.J.S.A. 2C:15-1. These charges arose from separate incidents on different dates. In exchange for defendant s plea, the State agreed to recommend concurrent twelve-year terms with a NERA1 parole disqualifier to run concurrent with a term defendant was already serving arising from a Middlesex County conviction. Judge Julie M. Marino imposed the sentence recommended by the agreement.

Defendant appeals contending that:

THE JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE IT WAS NOT IMMEDIATELY APPARENT TO THE SEARCHING OFFICERS THAT THE MATERIALS SEIZED FROM DEFENDANT'S BEDROOM AREA WERE EVIDENCE OF ANY CRIME WITHIN THE MEANING OF ARIZONA V. HICKS.

Defendant filed a pro se supplemental brief contending:

The trial judge committed reversible error when he denied defendant s motion to suppress. (raised below)

A. ms. darby lacked actual or apparent authority to consent to a search of the defendant s personal items.

B. The state failed to prove that ms. darby was aware of her rights to refuse or withhold the search until a warrant was obtained.

We disagree.

At a hearing on the motion to suppress, Franklin Township Police Detective Brian Gilmurray testified about the police investigation and subsequent search. On August 28, 2003, two employees at a 7-Eleven convenience store called the police and reported a robbery by an African-American man wearing a black ski mask, white t-shirt and black pants and armed with a silver revolver. The robber took an undetermined amount of cash, several packs of cigarettes and "an adult magazine." A video security camera recorded the robbery.

On September 29, 2003, employees at a Quick-Mart store reported being held up at gunpoint. They told investigating officers that a black male wearing a ski mask, a long white t-shirt, blue jeans and a silver wristwatch entered the store, pointed a silver revolver at the clerk s head and told him to open the register. The man took between $400 and $555 from the cash register. One of the Quick-Mart employees identified a photograph of the 7-Eleven robber as the same person who robbed his store.

Through further investigation, the police learned that there had been another armed robbery in North Brunswick, where two shots had been fired. The general description of the North Brunswick robber fit that of the robber of the Quick-Mart and 7-Eleven stores.

The police focused on defendant based on additional investigation. The investigators learned that defendant had been staying at his mother's home. They went there at 5:30 a.m. on October 3, 2003. The officers awakened Irene Darby, defendant's mother, and asked for her consent to search the defendant's bedroom in her basement. She agreed and signed the standard consent-to-search form. The officers limited their search to defendant's bedroom. By its terms, the consent form authorized the officers to take any evidence they considered "pertinent" to their investigation. The officers seized a Timberland shoe box containing a long white t-shirt, $74 in cash, and an Ausbein Messer knife. The officers also seized an August 2003 Penthouse magazine, and two spent .38 shell casings. No handgun was found. The officers gave Darby a list of the items taken.

On October 29, 2003, defendant was arrested; at that time, he was wearing a long white t-shirt, blue jeans, and a silver-colored wristwatch. He was found in possession of a black ski mask and a silver handgun.

Judge Gasiorowski denied defendant s subsequent motion to suppress. After reviewing the governing federal and New Jersey authorities,2 the judge made findings based on Detective Gilmurray's testimony. The judge concluded:

I'm satisfied that the seizure by the police falls within a recognized exception to the warrant requirement not only upon the basis of plain view but also on the pure consent evidenced by the fact of the language on the generic consent to search form and corroborated by Gilmurray's testimony at page 42 under cross-examination by defense counsel.

. . .

I am satisfied from that corroborative testimony and from the holding in the cases that I've cited that the police were justified not only in searching but in seizing the items that were taken. . . . [T]herefore, the motion to suppress is denied.

From our thorough review of the record, we conclude that the findings made by Judge Gasiorowski are supported by the record. See State v. Johnson, 42 N.J. 146, 162 (1964); State v. Locurto, 157 N.J. 463, 470-71 (1999). We also conclude that the judge's legal analysis was sound and in accordance with the federal and New Jersey constitutions and case law. Therefore, we affirm for substantially the reasons expressed by Judge Gasiorowski in his November 6, 2006 oral decision.

1 No Early Release Act, N.J.S.A. 2C: 43-7.2.

2 N.J. Const. art. I, 7; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); United States v. Dichiarinte, 445 F.2d 126 (1971); State v. Johnson, 171 N.J. 192 (2002); State v. Coyle, 119 N.J. 194, 217-18 (1990); State v. Bruzzese, 94 N.J. 210, 217-18 (1983); State v. Alston, 88 N.J. 211 (1981); State v. Patino, 83 N.J. 1, 13 (1980); State v. Johnson, 68 N.J. 349 (1975); State v. King, 44 N.J. 346 (1965); State v. Todd, 355 N.J. Super. 132 (App. Div. 2002); State v. Pante, 325 N.J. Super. 336, (App. Div. 1999), certif. denied, 163 N.J. 76 (2000); State v. Crumb, 307 N.J. Super. 204, 243 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998); State v. Younger, 305 N.J. Super. 250, 256 (App. Div. 1997); State v. Smith, 291 N.J. Super. 245 (App. Div. 1996); State v. Abreu, 257 N.J. Super. 549, 555 (App. Div. 1992); State v. Allen, 254 N.J. Super. 62, 66 (App. Div. 1992); State v. Douglas, 204 N.J. Super. 265, 276 (App. Div.), certif. denied, 102 N.J. 378 (1985).