STATE OF NEW JERSEY v. JOHN A. PAY

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0806-20

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN A. PAY,

     Defendant-Appellant.
_______________________

                   Submitted March 1, 2022 – Decided March 9, 2022

                   Before Judges Fisher and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Indictment No. 19-05-0418.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Stefan Van Jura, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Robert J. Carroll, Morris County Prosecutor, attorney
                   for respondent (Paula Jordao, Assistant Prosecutor, on
                   the brief).

PER CURIAM
      Following the denial of his motion to suppress evidence seized during a

warrantless search of his motor vehicle, defendant pleaded guilty to third-degree

resisting arrest, disorderly persons drug paraphernalia possession, and an open

container offense, and was sentenced to a probationary term. He appeals the

denial of the suppression motion, arguing police lacked "reasonable and

articulable suspicion of criminal activity necessary to request consent to search"

his car. We reject defendant's arguments and affirm.

      Officer Kyle Parril was the only witness to testify at the suppression

hearing. From his testimony, the trial judge determined that the officer initially

approached defendant's vehicle because it was "imperfectly" parked 1 and in an

area toward the back of a Walmart department store in Riverdale. The officer

observed that the windshield was "smashed," and a male was sitting in the

driver's seat. The judge credited the officer's testimony that this parking lot was

"a common narcotics area for drug users."

      Having made these observations, the officer "approached [defendant's]

vehicle and inquired . . . why [he] was in the parking lot." The judge found that




1
  We gather from the officer's testimony that this meant the vehicle was not
parked between the lines.
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this approach and the inquiry that followed "was a brief, non-intrusive encounter

which was not harassing, overbearing, or accusatory in nature."

      The judge found that it was during this proper field inquiry that Officer

Parril "developed suspicion of criminal wrongdoing." During the encounter, the

officer noticed an open container of alcohol in the backseat. Defendant

responded that he had been drinking the night before. In checking defendant's

driving credentials, the officer learned defendant had been arrested in a nearby

town for illegal drug possession in a motor vehicle a week earlier. When the

officer inquired, defendant responded that the arrest occurred "months ago."

      The officer asked defendant whether he had any drugs in the car. The

judge found that in response defendant "unilaterally" offered to allow the officer

to search the vehicle "on three occasions." Defendant, in fact, signed a consent

form for the search of the vehicle that the officer presented to him. The judge

found defendant knowingly and voluntarily executed the form and consented to

the search. During the search, four folds of heroin were found in the driver's side

door pocket, prompting defendant's arrest. In searching defendant, officers

found thirty additional folds of heroin. 2 The continuing search of the vehicle


2
  Because it was a cold winter's morning, when defendant was asked to step out
of the vehicle prior to the search, he asked if he could have his sweatshirt; he


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produced two folded dollar bills containing what police suspected to be heroin

residue.

      The crux of the appeal concerns whether Officer Parril had a "reasonable

and articulable suspicion to believe that evidence of criminal wrongdoing" could

be found in the vehicle "before seeking consent for the search." State v. Elders,

 192 N.J. 224, 242 (2007). The judge found – and we defer to his findings because

they are supported by sufficient credible evidence, State v. Robinson,  200 N.J.
 1, 15 (2009) – that the combination of circumstances known to the officer,

gathered during his proper and limited field inquiry, justified the request for

defendant's consent to search the vehicle. The officer: was aware that this

parking lot was known for drug use; saw the open container in the backseat;

learned defendant had recently been arrested for drug possession in a vehicle in

a neighboring town a week earlier; heard defendant lie about when he was

previously arrested; and was offered defendant's consent to search the vehicle

even before consent was requested.

      We affirm the determination that the officer had the necessary reasonable

and articulable suspicion to seek and accept defendant's consent to search the


also asked for a soda bottle that was in the car. The thirty folds of heroin found
during the search of defendant incidental to his arrest were found in the soda
bottle and sweatshirt.
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vehicle substantially for the reasons set forth by Judge David H. Ironson in his

thorough and well-reasoned written decision.

      Affirmed.




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