State v. johnny

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

APPELLATE DIVISION

DOCKET NO. A-0

State of New jersey,

Plaintiff-Appellant,

v.

johnny jones,

Defendant-Respondent.

___________________________

February 8, 2017

Submitted December 20, 2016 Decided

Before Judges Kennedy and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 15-12-0692.

Michael H. Robertson, Acting Somerset County Prosecutor, attorney for appellant (James C. Lankford, Acting Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Molly O'Donnell Meng, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

On leave granted, the State appeals from an August 18, 2016 order granting the motion of defendant Johnny Jones to suppress heroin seized, without a warrant, from a vehicle driven by him. The State relies on defendant's consent to search the vehicle. The trial court found, however, that the search was tainted because the State arrested defendant without probable cause before the search. The trial court also found that the consent was not given voluntarily. We affirm based on the lack of a voluntary consent because the trial court's fact findings are supported by substantial credible evidence presented at the suppression hearing.

I.

Defendant was indicted for second-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). Defendant moved to suppress the heroin and an evidentiary hearing was conducted. Four witnesses testified at the hearing. The State presented testimony from a detective, a sergeant, and an officer, all of whom were members of the Somerset County Prosecutor's Office's Organized Crime and Narcotics Task Force (the Task Force). Defendant testified on his own behalf.

The charges against defendant arose out of a narcotics investigation conducted by the Task Force. In October 2015, a confidential informant (CI) arranged to purchase a large quantity of heroin from a seller. The CI and seller agreed to make the sale in the parking lot of the Blue Star Shopping Center at a specific time. Those arrangements were made through a telephone call, during which a member of the Task Force was listening.

The CI also informed a member of the Task Force that the seller was a "black male," in his forties, and he usually drove a red or maroon BMW. Although the CI had not previously worked with the Task Force, members of the Task Force believed the CI's information was reliable.

The CI and members of the Task Force went to the shopping center prior to the arranged time for the transaction. Thereafter, a maroon BMW was observed entering the shopping center's parking lot. According to the detective, the CI identified the driver as defendant. Members of the Task Force then approached the BMW. Those Task Force members were dressed in plain clothes and bulletproof vests with the word "POLICE" on them. The Task Force members had their guns drawn and some of them were wearing masks to protect their identities. Defendant was removed from the vehicle, handcuffed, and placed on the ground.

According to the sergeant, defendant was advised that the police believed that there were narcotics in the BMW and they requested consent to search the vehicle. The detective testified that defendant was advised that he had the right to refuse consent, but if he did refuse, there was a possibility that a drug-detecting dog would be brought and a search warrant might be sought. The detective went on to testify that defendant gave verbal consent. Defendant was then presented with a consent form, which he reviewed and signed.

Thereafter, the BMW was searched and twenty-one bricks of heroin were discovered in a bag found in the trunk. The sergeant also testified that after the heroin was found, defendant was placed under arrest and advised of his Miranda1 rights. Defendant was then taken to the prosecutor's office where he gave a recorded statement.2

The testimony given by defendant at the hearing was in stark contrast to the testimony of the State's witnesses, particularly on the encounter in the parking lot. Defendant testified that when he stepped out of his car, he was surrounded by officers with guns drawn, yelling for him to get on the ground. He raised his hands, and was handcuffed and pushed to the ground. According to defendant, a member of the Task Force then asked him for consent to search the car, but he shook his head back and forth indicating his refusal. The Task Force member then responded that he would "get the dogs" or "call the judge this time of night. Get a search warrant . . . we'll be here all night." Defendant acknowledged that he then provided consent to search the vehicle and even told the officers that the heroin was in the trunk because he did not want his girlfriend's car torn up.

Defendant also claimed that he had not been advised that he had the right to refuse consent to the search. He also testified that he did not sign the consent to search form until it was presented to him at the prosecutor's office. Defendant also testified that, once handcuffed, the handcuffs were not removed during the encounter in the parking lot.

After considering, the evidence submitted at the suppression hearing, the trial court granted defendant's motion and ruled that the heroin would not be admitted as evidence against defendant. The trial court detailed its findings of fact and legal conclusions in a written opinion filed on July 28, 2016. It then memorialized its ruling in an order filed on August 18, 2016.

The trial court found that the Task Force members had reasonable articulable suspicion to conduct an investigatory stop of defendant when he drove a maroon BMW into the shopping center parking lot. The court based that finding on the information provided by the CI and verified by members of the Task Force.

The court went on to find, however, that the Task Force members immediately arrested defendant and that they did not have probable cause to make the arrest at that time. In that regard, the court found

Defendant was immediately taken to the ground and placed in handcuffs. Defendant was surrounded by police officers wearing bulletproof vests and ski masks with weapons drawn. Defendant was not asked any questions except if he would provide consent for a search of his vehicle. The nature and conduct of the officers engendered fear [by] defendant. As defendant was ordered to the ground and handcuffed, the [officers'] conduct exceeded the bounds of an investigatory stop and became a functional arrest.

. . . .

This [c]ourt finds that when [the] Task Force detectives removed defendant from the vehicle and immediately handcuffed him, and he remained handcuffed until the suspect[ed] heroin was found and he was transported to the [p]rosecutor's [o]fficer, that defendant was under arrest during the entire encounter with [the] Task Force detectives.

The court also noted that the detective had testified that defendant was immediately handcuffed for officer safety because the Task Force had received information indicating that defendant might be armed and dangerous. The court found, however, that testimony incredible because the investigation report did not contain any information that defendant was likely to possess a gun or that he was dangerous. The court went on to find that there were no intervening circumstances that removed the taint of defendant's illegal arrest and, therefore, his illegal arrest warranted suppression of the heroin.

The trial court also found that defendant's consent was not voluntary. In support of that ruling, the court found that when defendant was asked to consent, he was under arrest, he was handcuffed, and he initially refused consent. Thus, the court found that

four (4) of the [five] (5) factors from [State v.] King [, 44 N.J. 346, 352-53 (1965),] that are indicia of coerced consent are present in this case and none of the three (3) factors indicating voluntariness are present. Given the totality of the circumstances surrounding the present case, this [c]ourt finds that the State failed to meet its burden of showing through clear and positive testimony that defendant voluntarily gave consent to search his vehicle.

II.

On appeal, the State makes the following arguments

POINT I THE TRIAL COURT ERRED IN SUPPRESSING THE EVIDENCE []

POINT II THE HEROIN WAS LAWFULLY SEIZED BASED ON PROBABLE CAUSE, OR IN THE ALTERNATIVE, REASONABLE AND ARTICULABLE SUSPICION OF CRIMINAL ACTIVITY, THEREBY JUSTIFYING THE REQUEST FOR CONSENT TO SEARCH THE MOTOR VEHICLE []

POINT III THE HEROIN WAS LAWFULLY SEIZED PURSUANT TO THE CONSENT EXCEPTION TO THE WARRANT REQUIREMENT []

In reviewing a motion to suppress, we defer to the factual and credibility findings of the trial court, "so long as those findings are supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Deference is afforded "because the 'findings of the trial judge . . . are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "An appellate court should disregard those findings only when a trial court's findings of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). The legal conclusions of the trial court "are reviewed de novo." Id. at 263.

The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, 7. "There is a constitutional preference for" law enforcement officers to obtain a warrant from a neutral magistrate before conducting a search or seizure. State v. Pineiro, 181 N.J. 13, 19 (2004); State v. Ravotto, 169 N.J. 227, 236 (2001). Among the exceptions to a search or seizure conducted without a warrant is a consent search. Elders, supra, 192 N.J. at 246.

Constitutional principles "require that consent must be voluntarily given and not the result of duress or coercion." State v. Lamb, 218 N.J. 300, 315 (2014). "The burden of proof is on the State to establish by clear and positive testimony that the consent was so given." King, supra, 44 N.J. at 352. Because an analysis of consent is a fact-intensive inquiry, the Court has identified factors to be considered in determining voluntariness or coercion. Id. at 352-53.

The factors that tend to show voluntariness of a consent 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 [or her] guilt before consent; [and] (3) that the defendant affirmatively assisted the police officers." Id. at 353 (citations omitted). The factors that tend 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.

[Id. at 352-53 (citations omitted).]

As previously noted, here the trial court found that the Task Force lacked probable cause to arrest defendant. The court went on to find "[t]here were no intervening circumstances that removed the taint of the illegal arrest." Alternatively, and as an additional ground supporting suppression, the trial court found that the State failed to show that defendant's consent to search the vehicle was voluntary.

We discern no basis to disagree with the trial court's fact findings concerning the lack of probable cause for the arrest and the lack of a voluntary consent. We focus our review on the State's failure to carry its burden of showing a voluntary consent since without such consent there was no legal basis for the search of the trunk of the vehicle.

The trial court found that when members of the Task Force requested consent from defendant, he was under arrest and handcuffed. The court also found that defendant initially refused consent. The court went on to find that four of the five factors identified in King as indicia of coercion were present. While the trial court did not expressly identify the four factors, the record demonstrates that those factors included: defendant gave consent after he was arrested; defendant initially refused to consent to the search; the search revealed drugs; and defendant was handcuffed. See Id., 44 N.J. at 352-53. The court also found that none of the three factors identified in King as indicia of voluntariness were present.

The trial court's fact findings regarding the lack of voluntary consent are supported by substantial credible evidence in the record. The trial court's legal conclusion that the State failed to carry its burden flows from its fact findings. Accordingly, we discern no basis for disturbing the trial court's fact findings or disagreeing with the trial court's legal conclusion.

The State's arguments regarding probable cause for the arrest of defendant do not cure the lack of a valid consent for the search. Indeed, the State does not argue that the arrest justified the search of the trunk of the vehicle. Thus, here the arrest is one of the factors that warrants consideration in evaluating the validity of the consent. In that regard, we note that the State does not dispute that defendant was under arrest when he was asked for consent. Instead, the State argues that there was probable cause for that arrest. That argument, however, does not cure the fact that the trial court found that defendant did not give a voluntary consent.

The State's arguments regarding the validity of the consent essentially ask us to disagree with the trial court's fact findings and make alternative findings. Our scope of review does not permit such a substitution of fact findings because the trial court's findings are supported by substantial credible evidence in the record.

Affirmed.

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

2 The State contends that in his statement, defendant admitted that he voluntarily consented to the search. Defendant's statement, however, was not presented to the court in the motion to suppress and neither party provided a copy of defendant's statement with this appeal. Accordingly, we express no views on defendant's statement.