STATE OF NEW JERSEY v. PEDRO CAMPOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2008-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PEDRO CAMPOS, a/k/a

PEDRO CAMPOS, JR.,

Defendant-Appellant.

________________________________________________________________

April 3, 2013

Submitted January 16, 2013 - Decided

Before Judges Simonelli and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-10-1814.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Pedro Campos appeals from the final judgment of conviction entered on August 16, 2011. He argues that the trial court erred in denying his motions to suppress statements he made to his sister as well as a gun and ammunition obtained after a search of his sister's apartment. After the denial of these motions, he pled guilty to an amended charge of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4(a), in Hudson County Indictment Number 09-10-1814, preserving his right to appeal the denial of his Miranda1 motion.2 In accord with the plea agreement, he received a sentence of five years in state prison with a three-year period of parole ineligibility. After reviewing defendant's contentions in light of applicable law, we affirm.

Testimony of Jersey City Police Officer William Kostogin at defendant's pre-trial hearing revealed the following facts. On the afternoon of July 8, 2009, Officer Kostogin received a tip from a confidential informant and, within minutes, responded to an apartment in Jersey City leased by defendant's sister, Antonia Campos. He spoke to Ricardo Rodriguez,3 who lived next door, who stated that defendant had showed him the butt of a handgun in his waistband and threatened to kill him. Ricardo indicated that defendant fled into Campos' home with the handgun. Approximately eight officers were at the scene surrounding the house.

Officer Kostogin spoke to Campos who arrived home after the police arrived. Officer Kostogin discussed with Campos that the police were looking for defendant or a gun. She told him that defendant was upstairs. Campos was not under arrest. Although Officer Kostogin informed her of her right to refuse consent, she gave verbal authorization to him to search her home and signed a consent form in his presence. The consent form, read into the record by Officer Kostogin, stated:4

I, Antonia Campos, have been informed of my constitutional right not to have a search made of hereinafter mentioned premise and/or vehicles without a search warrant, and also of my right to refuse consent to such a search, do hereby authorize Police Officer William Kostogin, . . . and Police Officer Paul Loy . . . to conduct a complete search of . . . [Campos' home]. . . . This written permission is being given by me to the above named police officers voluntarily, and without . . . threats or promise of any kind.

Officer Kostogin testified that upon entering the apartment through the back door, Campos spoke to defendant who told her that he had a gun in the closet. Police recovered a black semi-automatic .380 UMC handgun fully loaded with seven bullets, as well as fifty rounds in a sock and another twenty-seven rounds in an ammunition box. It took police officers thirty-six minutes from their arrival and only two minutes after obtaining consent to locate the weapon.

At the time police responded to Campos' home, a Division of Youth and Family Services5 (Division) worker, Yasmika Booker, was in the home responding to a referral.6 She met with defendant, defendant's child and Mary. Booker testified for the defense that although defendant was able to communicate, his mouth was wired shut due to a broken jaw. She stated that she never observed defendant with a gun, and he denied having one. She witnessed Mary's father arguing with defendant from outside, yelling that the police were on their way. Booker also testified that when the police arrived they entered before defendant's sister arrived and claimed that the Division called them to the scene. Booker's testimony further suggested that the police officers were in the residence for ten to fifteen minutes before Campos arrived, and that police told Campos she "needed to comply or the house was going to be like raided, destroyed, the property if they have to search."

Neither defendant nor his sister testified.

Defendant raises the following issues on appeal:

POINT I: THE WARRANTLESS ENTRY OF THE POLICE INTO THE APARTMENT AND THE SUBSEQUENT SEIZURE OF THE GUN INSIDE A CLOSET VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNLAWFUL AND UNREASONABLE SEARCHES AND SEIZURES GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT II: DEFENDANT'S RESPONSE TO ANTONIA CAMPOS' QUESTION IF HE HAD A GUN IN THE HOUSE IN THE PRESENCE OF POLICE VIOLATED HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We must uphold the trial judge's factual findings, so long as they are supported by sufficient credible evidence in the record. Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, we afford deference to a trial judge's findings "which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy[.]" State v. Davila, 203 N.J. 97, 109-10 (2010) (citation and internal quotation marks omitted).

When a reviewing court is satisfied that the findings of the trial court could reasonably have been reached on the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then the appellate court should review 'the record as if it were deciding the matter at inception and make its own findings and conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting Johnson, supra, 42 N.J. at 162). "[A] reviewing court owes no deference to the trial court in deciding matters of law. When a question of law is at stake, the appellate court must apply the law as it understands it." Ibid. (citations omitted).

I

Defendant first argues that the warrantless search and seizure of the gun and ammunition violated his federal and state constitutional rights against unreasonable searches and seizures. Defendant contends that the police coerced Campos to consent to a search of her home by threatening to destroy her property, and therefore her consent was involuntary. Defendant claims that the police misrepresented their ability to obtain a search warrant and Campos' fear of eviction from government housing contributed to the involuntariness of her consent. Defendant further maintains that he stayed at the residence and described the closet as "his" yet police did not seek his consent to search it.

"The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution both guarantee '[t]he right of the people to be secure . . . against unreasonable searches and seizures[.]'" State v. Shaw, ___ N.J. ___, ___ (2012) (slip op. at 13) (alterations in original) (quoting U.S. Const. amend. IV; N.J. Const. art. I, 7).
"Because warrantless stops and searches are presumptively invalid, the State bears the burden of establishing that any such stop or search is justified by one of the 'well-delineated exceptions' to the warrant requirement." Ibid. (citing State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)).

One exception to the warrant requirement is consent to a search. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045, 36 L. Ed. 2d 854, 860 (1973); State v. Maristany, 133 N.J. 299, 305 (1993); State v. Miller, 159 N.J. Super. 552, 556 (App. Div.), certif. denied, 78 N.J. 329 (1978). The State meets its burden under the Fourth Amendment and New Jersey Constitution if consent to search was "freely and voluntarily given." Schneckloth, supra, 412 U.S. at 222, 93 S. Ct. at 2046, 36 L. Ed. 2d at 860; see also State v. Johnson, 68 N.J. 349, 353-54 (1975). "Consent may be obtained from the person whose property is to be searched, from a third party who possesses common authority over the property, or from a third party whom the police reasonably believe has authority to consent[.]" Maristany, supra, 133 N.J. at 305 (citations omitted).

While New Jersey's search and seizure provision is similar to its federal counterpart, consent searches require a higher level of scrutiny. State v. Carty, 170 N.J. 632, 639 (2002), modified on other grounds, 174 N.J. 351 (2002). To justify a warrantless search based on consent, "the State must prove that the consent was voluntary and that the consenting party understood his or her right to refuse consent." Maristany, supra, 133 N.J. at 305 (citing Johnson, supra, 68 N.J. at 353-54). The State must "prove voluntariness by 'clear and positive testimony.'" State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000) (citation omitted). "'Consent' that is the product of official intimidation or harassment is not consent at all." Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388, 115 L. Ed. 2d 389, 401 (1991). Furthermore, the State must "show that the individual giving consent knew that he or she had a choice in the matter." Carty, supra, 170 N.J. at 639 (citation and internal quotation marks omitted).

Defendant relies on State v. Coyle, 119 N.J. 194, 217 (1990), for the proposition that "a third party who possesses authority to consent to a search of the premises generally may lack authority to consent to the search of a specific area on those premises." Coyle, however, is clearly distinguishable. Notably, there, the defendant lived in premises owned by a third-party. Id. at 201. Here, defendant did not live at his sister's home,7 he merely claims an unsubstantiated property interest in a closet on the premises. Officer Kostogin informed Campos of her right to refuse consent. She gave verbal authorization and signed a consent form, which also advised Campos of her right to refuse consent.

Judge Isabella found Officer Kostogin's testimony "very credible," and determined that the police conducted the search pursuant to the voluntary and knowing consent of a person with authority to provide consent. Relying on Officer Kostogin's representation that he advised Campos of her right to refuse consent, Judge Isabella found "clear and positive testimony" that Campos' consent was voluntary and knowing.

Judge Isabella found that the facts in this case indicated that Campos' consent was voluntary. "Specifically, Ms. Campos assisted police after signing the consent form by entering her apartment and helping police retrieve the Defendant." Judge Isabella also noted that defendant did not present any testimony from Campos that police coerced her to consent. The only testimony presented by defendant, that of Booker, at most indicated the presence of police officers in the apartment before Campos arrived. Defendant failed to present evidence that police discovered the gun or conducted a search prior to obtaining consent. Judge Isabella also noted that this case does not fall into any of the categories in which courts have found consent searches inappropriate. He found no credible evidence that police misrepresented their ability to obtain a search warrant, nor was one required after obtaining consent to search from the sole resident. Furthermore, defendant failed to present any testimony regarding Campos' fear of eviction from government housing.

Because there is sufficient evidence in the record to support Judge Isabella's findings, we affirm his decision.

II

In Point II of his brief, defendant argues that the police presence when Campos asked him about the gun violated his right against self-incrimination because he was effectively in police custody. Defendant suggests that due to such a coercive atmosphere, Campos acted as a state agent, and the absence of any Miranda warnings rendered his responses inadmissible. Miranda warnings are required only when law enforcement subjects an individual to "custodial interrogation." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706; State v. P.Z., 152 N.J. 86, 102 (1997). Custody is determined based on the totality of the circumstances. Id. at 102-03. New Jersey law does not require a formal arrest, physical restraint in a police station, or handcuffs to demonstrate custody, and recognizes that an individual may be in custody in his or her own home. Id. at 103 (citations omitted). The critical inquiry "is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." Ibid. (citations omitted).

Furthermore, interrogation can be "express questioning or its functional equivalent." State v. M.L., 253 N.J. Super. 13, 20 (App. Div. 1991) (citations omitted), certif. denied, 127 N.J. 560 (1992). Interrogation "must reflect a measure of compulsion above and beyond that inherent in custody itself." Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 307 (1980). It is well established that "although Miranda principles generally do not apply to confessions elicited by private individuals, when government officials participate in those actions, the actions of the private individual may come under scrutiny." State in re J.D.H., 336 N.J. Super. 614, 625 (App. Div. 2001) (citations and internal quotation marks omitted), rev'd on other grounds, 171 N.J. 475 (2002).

Judge Isabella found Officer Kostogin's testimony credible that upon entering Campos' home, she called upstairs to defendant and asked if he had a gun in her home. Defendant nodded his head affirmatively and responded "yes." Campos then asked defendant where the gun was, to which defendant replied that it was in his closet.

Based on the foregoing, there is sufficient credible evidence in the record to support Judge Isabella's finding that defendant's responses to his sister's questions were not the product of police interrogation and were therefore admissible.

A

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

2 Rule 3:9-3(f) allows defendant to appeal the denial of his motion to suppress the evidence.

3 Ricardo Rodriguez is the father of Mary Rodriguez, who is the mother of defendant's child. For the purpose of this opinion, we will refer to Ricardo and Mary by their first names.

4 The form itself does not appear to have been marked into evidence and was not provided on appeal.

5 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

6 Booker did not reveal the nature of the report, although she said it was related to allegations that defendant had a gun. She noted it was "an immediate" report, which required a response within an hour after the Division received a referral.

7 Officer Kostogin stated that defendant told the police he lived at a different address on the same street.