STATE OF NEW JERSEY v. CHARLES McCOY

NOT FOR PUBLICATION WITHOUT THE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.

CHARLES McCOY,

Defendant-Respondent.

__________________________________________

October 3, 2013

Submitted September 16, 2013 - Decided

Before Judges Parrillo and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 11-11-1015.

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (Charles J. Wettstein, Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

By leave granted, the State appeals from the August 21, 2012 order granting defendant Charles McCoy's motion to suppress drugs recovered during a search of a motor vehicle. The State also appeals from the December 3, 2012 order denying its motion for reconsideration. We affirm both orders.

I.

We glean the following facts from the record. On August 4, 2011, New Jersey State Troopers Munyon and Tortella were on general road patrol in a marked car. At approximately 1:30 a.m., Munyon saw a white car traveling in the opposite direction. As the car approached an intersection, the left blinker was activated but the car proceeded through the intersection without turning or coming to a complete stop at the stop sign.

Trooper Munyon made a U-turn, activated his overhead lights, and pulled the vehicle over. The driver identified herself as Dominique Ziegler and the passenger in the front seat was later identified as defendant Charles McCoy. Ziegler provided all required credentials and asked why she had been stopped. Munyon testified that he noticed Ziegler's eyes were bloodshot and detected the odor of burnt marijuana coming from the interior of the car. Munyon asked Ziegler to get out of the car and performed field sobriety tests. Although Ziegler passed the sobriety tests, Munyon placed her under arrest "for reference of odor of burnt marijuana." Ziegler was searched, handcuffed, and placed in the back of the trooper car.

Trooper Tortella approached the passenger side of the car and after identifying defendant, placed him under arrest for the same offense. Having searched both occupants without finding drugs, Munyon sought Ziegler's consent to search the car. She refused. Munyon then contacted his dispatcher and requested a tow truck for the car.

Although unmarried, Ziegler and McCoy are the parents of twins who, at the time, were three years old. Ziegler expressed concern about them and whether the Division of Youth and Family Services (DYFS) would be notified. Munyon informed Ziegler that the car would be towed and he intended to apply for a warrant to search her car.

Ziegler and McCoy, who are both approximately six feet tall and weigh between 240 and 250 pounds, remained handcuffed in the back of the trooper car until the tow truck arrived at 2:22 a.m. Ziegler complained that her handcuffs were too tight and she was in "extreme pain" due to a prior injury to her hand, but her request to have the handcuffs loosened was denied as was her request to call her sister who was caring for her children.

Ziegler and McCoy were transported to the trooper barracks where McCoy was placed in a holding cell and Ziegler was handcuffed to a bench. The troopers again asked Ziegler for consent to search the car and she again refused. When it became clear to Ziegler that there would be a lengthy delay until a warrant could be obtained and before she could be brought before a judge, she told the troopers she had two small bags of marijuana in her purse and she would consent to a search of her car.

At 3:25 a.m., Ziegler was taken into a room where her statement was recorded. The motion judge noted that Ziegler asked whether she was being taken to county jail and the trooper responded that he could not make any promises. After Ziegler was advised of her Miranda1 rights, she again stated there may be marijuana in her pocketbook. She also asked to watch the search of the car and the trooper agreed. At 3:34 a.m., Ziegler signed a consent to search form.

A search of the car revealed a small amount of marijuana in Ziegler's purse and cocaine in the rear passenger compartment. After defendant admitted to possession of the drugs, Ziegler was released.

A Cumberland County grand jury indicted defendant and charged him with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3); and third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(11).

Defendant moved to suppress the evidence recovered from the search of the car and his subsequent statements to police. The trial court heard the testimony of Trooper Munyon and Ms. Ziegler. The court first found that it was proper for the officers to pull Ms. Ziegler over, as she had not come to a complete stop at the stop sign, and there was probable cause for the officers to believe that the offense of careless driving had been committed. The court acknowledged that the issue of whether Ms. Ziegler consented to the search of the vehicle "rests basically on the credibility of the witnesses." The court raised questions concerning the credibility of both witnesses. As to Ms. Ziegler:

[I]t's always difficult when someone is in a stressful situation about their memory and it was interesting to me that when [the prosecutor] cross examined Ms. Ziegler, she repeatedly denied every detail of the tape, that that didn't happen. She said both troopers were in the room, that she didn't reach for the cards. Her memory was one that was not related to what actually happened in the room and her demeanor in the room was much different than it was on the stand. On the stand she started crying at one point, which seemed opposite of the strength she showed in the interview.

And as to Trooper Munyon: "I was concerned about some of the lapses of memory that the trooper had when he was probed by [defense counsel]."

The court held: "the factors weighing in favor of involuntariness and the factors weighing in favor of voluntariness are in equipoise. And since I must find that the State has to prove this matter by clear and positive testimony, I can't make that finding." The court noted that it was "a delicate matter with a mother who had her children away from her[.]" The court granted defendant's motion to suppress the drugs and his subsequent statements as fruits of the illegal search.

On the State's motion for reconsideration, the trial court explained that its decision was based on "the totality of the circumstances," and although the case was close, it was the State's burden to show Ziegler exercised "free will" in giving her consent to search by "clear and positive testimony." The court again noted that Ms. Ziegler's consent to the search was prompted by her concern for her children and, "[t]he police knew that at the time. They knew that she wanted to take care of her kids. She said that in the car to them right away . . . ."

We granted the State's motion for leave to appeal, and the State presents the following arguments:

POINT I

THE INTERESTS OF JUSTICE MANDATE THAT LEAVE TO APPEAL BE GRANTED.

POINT II

THE COURT ERRED IN FINDING THAT CONSENT WAS NOT VOLUNTARILY GIVEN AS IT DID NOT PROPERLY CONSIDER THE TOTALITY OF THE CIRCUMSTANCES.

II.

Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J. 599, 615 (1997) (quoting State v. Johnson, 42 N.J. 146, 162 (1964) (alteration in original). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . should [we] appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (internal citations omitted).

As the motion judge noted, this case "rests basically on the credibility of the witnesses and what they said and what they did." We must give "deference" to the ability of the factfinder to judge credibility. State v. Locurto, 157 N.J. 463, 471 (1999) ("[The appellate court] should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy."). A trial court's findings of fact may be disturbed only when "the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[.]" Johnson, supra, 42 N.J. at 162.

The New Jersey and United States Constitutions protect citizens from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. 1, 7. A search without a warrant is presumptively unreasonable. State v. Wilson, 178 N.J. 7, 12 (2003). There are a few, well-defined exceptions to the warrant requirement. See State v. Hill, 115 N.J. 169, 173-74 (1989). The prosecution bears the burden of proving that circumstances existed justifying a warrantless search. State v. Brown, 132 N.J. Super. 180, 185 (App. Div. 1975).

One well-established exception is a search "conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973); see also State v. King, 44 N.J. 346, 352 (1965). The prosecution has the burden of proving that "the consent was, in fact, freely and voluntarily given[,]" by "clear and positive testimony." Schneckloth, supra, 412 U.S. at 222, 93 S. Ct. at 2045, 36 L. Ed. 2d at 860; State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000).

In King, the Court enunciated the "voluntariness" analysis as a consideration of the totality of the circumstances, and detailed certain factors to consider in deciding whether a consent search is lawful. It listed factors "tending to show that the consent was coerced" as:

(1) that consent was made by an individual already arrested; (2) that consent was obtained despite a denial of guilt; (3) that consent was obtained only after the accused had refused initial requests for consent to search; (4) that consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered; (5) that consent was given while the defendant was handcuffed.

[King, supra, 44 N.J. at 352-53 (internal citations omitted).]

It then listed factors "tending to show voluntariness of the consent" as: "(1) that consent was given where the accused had reason to believe that the police would find no contraband; (2) that the defendant admitted his guilt before consent; (3) that the defendant affirmatively assisted the police officers." Id. at 353 (internal citations omitted).

The King Court cautioned that the factors it listed are neither sufficient nor necessary to find voluntariness, and are only "guideposts." Ibid. ("It should be noted that the existence or absence of one or more of the above factors is not determinative of the issue . . . . [and] may be of great significance in the circumstances of one case, yet be of slight significance in another.").

A person's refusal to give consent is a factor which is properly taken into account as part of the "totality of the circumstances" in judging whether a later consent is voluntary. United States v. Pulvano, 629 F.2d 1151, 1157 (5th Cir. 1980). It is not disputed that Ms. Ziegler refused several requests by the troopers to consent to the search of her car before finally agreeing when she realized that she would remain in police custody and separated from her young children.

The King Court stressed that

[t]he trial judge is in a better position to weigh the significance of the pertinent factors than is an appellate tribunal. He has the advantage of seeing and hearing the witnesses so that he can not only evaluate their credibility but also can gain a "feel" of the case which the cold record denies to a reviewing court.

[King at 353-54.]

Here, the motion judge analyzed the King factors and found Ms. Ziegler was already under arrest when she consented; she had refused police requests for consent several times prior to giving consent, and was angry in her first refusal; and she did know of the contraband in the car, though she only knew of the small amount of marijuana, and therefore, likely only consented because she believed it would be a minor punishment.

The court concluded that because the factors weighing in favor of involuntariness and voluntariness are in equipoise, the State failed to meet its burden to prove voluntariness by clear and positive testimony. The court noted that Ms. Ziegler was concerned with the welfare of her young children and that the trooper was aware of her concern. The court also considered the fact that Ms. Ziegler was not allowed access to the phone.

We note that the motion judge had the benefit of not only seeing and hearing the witness, but also viewing the videos from the trooper car and the interview tapes. The KingCourt contrasted that type of review to our review of the "cold record." Seeibid. The determination of voluntariness is a factual issue for the trial court, and an "appellate court should reverse only when it finds that determination to be clearlyerroneous." Id.at 354.

After a careful review of the record, we find nothing to suggest that the court's decision in granting defendant's motion to suppress was clearly erroneous.

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