STATE OF NEW JERSEY v. SHANI A. PATEL

NOT FOR PUBLICATION WITHOUT THE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.

SHANI A. PATEL,

Defendant-Appellant.

_________________________________

December 11, 2015

Submitted October 5, 2015 Decided

Before Judges Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 13-08-2100.

Bradley D. Billhimer, attorney for appellant.

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A grand jury indictment charged defendant Shani A. Patel with third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (Count One), and fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (Count Two). After defendant's motion to suppress evidence was denied, and after a subsequent motion for reconsideration and motion for leave to appeal the denial of the motion for reconsideration were also denied, defendant entered a conditional guilty plea to Count One, with the remaining count and motor vehicle summons to be dismissed at sentencing. Defendant was thereafter sentenced to a two-year probationary term subject to all conditions of probation. Judge Rochelle Gizinski simultaneously granted defendant's motion for an order staying execution of the sentence pending this appeal, where defendant raises the following issue

POINT I

THE STATE FAILED TO PROVE BY CLEAR AND POSITIVE TESTIMONY THAT DEFENDANT WAS AWARE OF HIS RIGHT TO BE PRESENT AND TO END THE CONSENT SEARCH AT ANY TIME. THUS, THE CONSENT SEARCH WAS INVOLUNTARY AND INVALID PURSUANT TO STATE [v]. JOHNSON, AND ART. I, PAR. 7 OF OUR STATE CONSTITUTION.

The following facts are derived from the record. On April 15, 2013 at approximately 4:57 p.m., Patrolman Theodore Malony (Malony) of the Toms River Police Department (Toms River PD) was dispatched to the Walnut Hollow Condominiums complex (Condos) in Toms River, New Jersey. Malony was responding to an anonymous tip claiming a group of males were smoking controlled dangerous substances near the Condos. Within minutes, Malony arrived at the Condos and "observed a Toyota Corolla occupied by several males." He notified dispatch of the vehicle prior to approaching it. As Malony approached the vehicle, he could smell an odor of burnt marijuana emanating from the car.1 Once he reached the driver's side door, the front passenger rolled the window down "and that's when the odor of burnt marijuana really hit [Maloney] in the face."

There were four people in the car, including defendant in the driver's seat. Malony was familiar with defendant's prior arrests and potential involvement in selling marijuana. Soon thereafter, backup arrived in the form of Officer Kowalchuk (Kowalchuk) and Officer Lauria. After releasing two of the passengers who were juveniles, Maloney spoke with defendant and an adult passenger, D.S., separately. Both defendant and D.S. provided "generally vague" reasoning for being present in the parking lot. At that point, Malony told defendant that he suspected narcotics were present in the vehicle, and he requested consent from defendant for a search of the vehicle.

After defendant signed the consent form, Officer Pedalino, who arrived on the scene during the investigation, stood with defendant as Malony and Kowalchuk searched the vehicle. Although Malony did not tell defendant that he would "bring the dogs in," Malony did "probably [tell defendant] that [he] would be applying for a warrant . . . ." Defendant was generally "cooperative" and "polite" and verbally consented to a search. Malony subsequently provided defendant with a consent to search form. He first read the form to defendant, then allowed defendant to read the form prior to signing it at 5:25 p.m. At no point did defendant appear confused by the consent form or ask any questions about it. The signed form reads as follows

I Shani A. Patel hereby do freely and voluntarily extend to Ptl. T. Malony #359, the right to search 2012 Toyota Corolla . . . [and] my person.

This consent is granted without pressure, direct or indirect, being placed on me and the full realization that I have the right to refuse [] consent and, that if I so refuse, no search will be conducted. I am aware that the officer(s) conducting the search are seeking evidence pertaining to a violation of the criminal laws of the [S]tate of New Jersey.

[(emphasis added).]

Malony and Kowalchuk conducted a "systematic search" of the vehicle and seized the following items from the trunk: (1) one large clear plastic freezer bag that was open, containing four sandwich bags of suspected marijuana totaling over fifty grams; (2) a digital scale with suspected marijuana residue on it; and (3) empty sandwich bags. Defendant was present throughout the duration of the search and never asked for the search to cease. Defendant was placed under arrest following the seizure of those items.

When reviewing a determination on a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). We do so, noting those findings "are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." State v. Mann, 203 N.J. 328, 336-37 (2010) (alteration in original) (citation and internal quotation marks omitted). The trial court's factual findings are "entitled to deference unless they were clearly mistaken or so wide of the mark that the interests of justice require[] appellate intervention." State v. Elders, 192 N.J. 224, 245 (2007) (citation and internal quotation marks omitted). However, legal determinations based on those findings are afforded no deference and are subject to our de novo review. Gamble, supra, 218 N.J. at 425.

A defendant's consent to search is an exception to the warrant requirement. State v. Miller, 159 N.J. Super. 552, 556 (App. Div.), certif. denied, 78 N.J. 329 (1978); Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045, 36 L. Ed. 2d 854, 860 (1973). Prior to seeking a defendant's consent to search a lawfully stopped motor vehicle, "law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing." State v. Carty, 170 N.J. 632, 635, modified on other grounds, 174 N.J. 351 (2002). Moreover, the state bears the burden of showing by "clear and positive testimony" that consent to conduct the warrantless search was given voluntarily. State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000) (quoting State v. King, 44 N.J. 346, 352 (1965)).

In evaluating voluntariness, a "prerequisite to a lawful consent search [is] that a person have knowledge of his right to refuse to give consent." Elders, supra, 192 N.J. at 240-41. The Supreme Court of New Jersey, in King, listed factors to assist in determining coercion or voluntariness of consent. Factors "tending to show that [] consent was coerced" include

(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; [and] (5) that consent was given while the defendant was handcuffed.

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

Factors that tend to show voluntariness include: "(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; [and] (3) that the defendant affirmatively assisted the police officers." Id. at 353 (internal citations omitted). However, the Supreme Court cautioned that "the existence or absence of one or more of the above factors is not determinative." Ibid.

Three key points are not disputed on appeal. First, Malony had reasonable and articulable suspicion prior to requesting consent to search defendant's car. Because Malony could smell marijuana emanating from defendant's car, it is clear that he had more than reasonable suspicion of criminal activity. See State v. Nishina, 175 N.J. 502, 515 (2003) ("New Jersey courts have recognized that the smell of marijuana itself constitutes probable cause . . . ."). Second, defendant was advised of his right to refuse consent. Third, defendant was present during the search. Regardless, defendant contends Malony's failure to advise him of (1) his right to be present during the search; and (2) his ability to revoke consent during the search renders his consent "involuntary and invalid." We agree that defendants who consent to a search of their motor vehicle have the right to be present during the search and a right to terminate the search. State v. Hampton, 333 N.J. Super. 19, 30 (App. Div. 2000).

However, defendant fails to cite any legal authority from New Jersey, or any other jurisdiction, holding that a voluntary consent search requires a person to be specifically informed of either of those rights. In fact, even a person's knowledge of the right to refuse a search need not be proven by an affirmative warning from the police. State v. Johnson, 68 N.J. 349, 354 (1975) (stating "the police would not necessarily be required to advise the person of his right to refuse to consent to the search"). The State only "has the burden of demonstrating knowledge on the part of the persons involved that he [or she] had a choice in the matter." Ibid.

Despite Malony's failure to advise defendant of his right to be present and terminate the search, defendant voluntarily provided consent to a search of his motor vehicle after being advised of his right to refuse. After Malony requested permission to search the car, defendant verbally consented. Malony then read a consent to search form to defendant and provided him with an opportunity to read the form prior to his signing. The whole encounter, from stop to signing of the consent form, lasted approximately twenty-eight minutes.

Given the time it took for the officers to speak with all four passengers of defendant's car, check the subjects' identification, and wait for backup to arrive, the time elapsed prior to defendant signing the consent form does not suggest any unnecessary delay. Although Malony did "probably [tell defendant] that [he] would be applying for a warrant," that statement does not necessarily demonstrate coercion. See State v. Cancel, 256 N.J. Super. 430, 434 (App. Div. 1992) (stating officer's comment that defendant "would be detained while they obtained a search warrant was a fair prediction of events [to] follow, not a deceptive threat made to deprive her of the ability to make an informed consent"), certif. denied, 134 N.J. 484 (1993).

Additionally, application of the King factors shows defendant was not coerced. Prior to his consent, defendant was not arrested or handcuffed, did not refuse consent at any point, and made no proclamations of innocence. Moreover, at no point did defendant appear confused by the consent form or ask any questions about it. Most importantly, the signed form reads in pertinent part: "I have the right to refuse [] consent and, [] if I so refuse, no search will be conducted." (emphasis added). Defendant was present throughout the duration of the search and never asked for the search to cease.

It is clear that defendant's consent to a search of his motor vehicle was voluntary. Furthermore, New Jersey case law demonstrates that Malony's failure to advise defendant of his rights to be present during the search or withdraw consent does not render defendant's voluntary consent invalid where he was allowed to be present during the search. For these reasons, defendant's conviction is affirmed, the stay is vacated, and the matter is remanded to the Law Division for implementation of the sentence.

Affirmed.

1 Malony was previously trained regarding narcotics, including the smell of raw and burnt marijuana.