On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication by the Court March 17, 1997.
Before Judges Shebell, Baime and Braithwaite. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
Defendant, Samuel Montesano, a/k/a Pio Montesano, Anthony Montesano, appeals the denial of his motion to suppress evidence and his jury convictions for possession of a controlled dangerous substance, marijuana, (N.J.S.A. 2C:35-10a(3)), a fourth degree offense, and possession of a controlled dangerous substance, marijuana, with intent to distribute (N.J.S.A. 2C:35-5a(1) and b(10)), a second degree offense. An aggregate prison term of eight years was imposed on these convictions, together with appropriate penalties and fees.
In his brief on appeal, defendant raises the following legal arguments:
POINT I: THE MOTION JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.
A. THE POLICE "INVESTIGATORY STOP" OF DEFENDANT WAS WITHOUT OBJECTIVELY REASONABLE SUSPICION, AND VIOLATED DEFENDANT'S RIGHTS UNDER THE FOURTH AMENDMENT AND ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION.
B. THE POLICE LACKED VALID "CONSENT" TO SEARCH THE CONTENTS OF THE PASSENGER'S LUGGAGE FOUND IN THE TRUNK OF THE VEHICLE BEING OPERATED BY DEFENDANT.
POINT II: THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY, REQUIRING REVERSAL OF DEFENDANT'S CONVICTION.
A. THE COURT ERRED IN FAILING TO GIVE A REQUESTED INSTRUCTION ON "MERE PRESENCE" AS AN ESSENTIAL PART OF THE DEFINITION OF "CONSTRUCTIVE" POSSESSION.
B. BOTH THE COURT'S INSTRUCTIONS ON THE ELEMENTS OF N.J.S.A. 2C:35-5, AND THE VERDICT FORM PROVIDED TO THE JURY, ERRONEOUSLY RELIEVED THEM OF THE TO FIND A MATERIAL ELEMENT OF THE OFFENSE, I.E., THE WEIGHT OF THE CONTROLLED SUBSTANCE, BEYOND A REASONABLE DOUBT. (NOT RAISED BELOW).
POINT III: THE TRIAL COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION SUA SPONTE ON THE LIMITED USE OF CO-DEFENDANT'S POST-ARREST STATEMENT, PURSUANT TO N.J.R.E. 105 HAD THE CLEAR CAPACITY TO PRODUCE AN UNJUST RESULT IN THIS CASE. (NOT RAISED BELOW).
POINT IV: THE TRIAL COURT'S FAILURE TO LIMIT THE SCOPE OF THE STATE'S EXPERT WITNESS IN THIS CASE, COUPLED WITH THE COURT'S INSTRUCTIONS ON THE JURY'S USE OF EXPERT TESTIMONY, HAD THE CLEAR CAPACITY TO PRODUCE AN UNJUST RESULT.
A detective with the New Jersey State Police, assigned to the Criminal Enterprise and Racketeering Bureau, Criminal Investigation Section, Special Operations Unit, was the State's only witness at the suppression hearing. During training to become a State Trooper, he was "instructed in detecting and investigating [narcotics] trafficking and distribution." In addition, he has been involved in approximately 400 narcotics investigations as both a detective and a trooper, with about twenty-five of those investigations located in the Fort Lee area.
On November 4, 1992, the detective, while on duty, received information from a confidential source "about suspicious behavior of individuals who were checked into the Days Inn Hotel . . . ." The detective described the information relayed to him by the informant, as follows:
I was informed that a white female and white male had checked into the hotel approximately 4:00 in the morning. The individuals when checking in came in, paid cash for a one night stay.
The individuals who checked into the hotel had requested if any messages had been left for them by an individual named Sammy. At that time, they checked in with one handbag each. Prior to the individuals going up to their hotel room, Thomas Miller, who was the white male, went back out to his vehicle, which was parked out in the front of the hotel. He then removed a large suitcase and walked around to a side entrance of the hotel and entered through a side entrance. He then, from what was told to me, got on to the pay phone and started making pay phone calls.
The detective arrived at the hotel with two other State Police detectives and began the investigation at approximately 8:00 a.m. They learned that the two individuals who checked in were Thomas and Hazel Miller, Ohio residents, who drove a red 1991 Ford Explorer, mistakenly referred to as a Bronco. The confidential source had related that, due to the security cameras located at various points in the hotel, Thomas Miller was seen entering the hotel from a side entrance, and that he was carrying a large dark-colored suitcase. The shorter entrance would have been through the front lobby, where he had entered the hotel when he checked in.
After the detectives had set up surveillance in the lobby and in the parking lot, they observed a man, later identified as Michael Miller, exit the elevator and approach the front desk. His conversation with the clerk was described as follows:
The individual asked the front desk clerk, he said that he was driving by the hotel and he observed his brother's car out in the parking lot, and he wanted to know what room he was in. The front desk clerk said that he couldn't provide any information. The front desk clerk asked Mike Miller if he was a guest at the hotel, he replied no, he said he was just driving by, he saw his brother's vehicle out in the parking lot, and he stopped in and wanted to know if he arrived safely.
When the clerk wouldn't provide any information he became very belligerent. We then observed Mike Miller walk outside and go up, or approach the Ford Bronco. He looked inside of it, walked around it, then walked back into the hotel, got back on the elevator, and we observed him to go up to the fourth floor.
At about 9:45 a.m., the detectives observed an individual, later identified as the defendant, and Michael Miller exit the hotel. Michael was now carrying a large dark-colored suitcase. It was placed in the trunk of a red Pontiac rental car with New York license plates. The detective did not recall whether the defendant was carrying anything. Michael got into the passenger side and the defendant got into the driver's side, and they began to drive toward to George Washington Bridge.
The detectives followed the car and "based upon the suspicious nature of the circumstances, . . . made an investigative interdiction of the vehicle . . .", meaning, they pulled the vehicle over. The detective testified that it was the totality of the facts that made him suspicious, not one specific fact taken alone. The detective explained what an "investigative interdiction" meant to him:
An investigative interdiction approach is a technique that we utilize based upon the totality of circumstances that occur. We don't always, we don't all the time have the ability to see exactly that someone is committing the criminal act, so we know that this approach is legal to approach people, identify ourselves, ask them if they have any objection to us talking with them, we do that, and it's called an interdiction.
If the people say that they don't want to have any business with us or they don't want to cooperate in any manner with us, then unless we have probable cause to detain them, you know, we either take it a step further or we let them go.
It was his understanding that when making an investigative interdiction they must have "an articulable reason for carrying the investigation a step further." He said that they did not pull the car over "because [defendant] was doing something wrong in driving."
After the car was stopped, one detective approached the passenger's side, while another approached the driver's side of the car. Both the defendant and Michael Miller were asked for identification. However, only defendant was able to produce any identification. Michael told the detectives that he left his wallet in Las Vegas, where he lived. Michael indicated that they were going to Brooklyn to visit his aunt. Defendant stated they were going to visit his aunt in New York for his birthday. However, defendant's birthday was not until June 29th.
At that point, the detectives began questioning Michael and the defendant separately. Michael was described as being nervous, so much that the Pepto Bismol tablets he took began foaming in his mouth. He was also described as being evasive in his answers, sweaty and shaking. He claimed to be nervous because he was being stopped by the police.
When the detectives requested to search the car, defendant denied he owned anything in the car and executed a written consent to search the car. Michael Miller was not asked for consent to search the suitcase because the defendant "was the renter of the vehicle, and he was also driving the vehicle, he was in control of the vehicle." The detective assumed that since the defendant was in control of the car, that he had the authority to consent to search the luggage inside the car. The detective did not recall Michael claiming ownership to anything in the car, and could not say whether he asked if anything in the car belonged to him. The detectives then searched the vehicle and found approximately 14.8 pounds of marijuana that was wrapped in fifteen individual packages. Most of the marijuana was contained in the large suitcase, but a small amount was found in defendant's gym bag. No contraband was found in the passenger compartment of the car.
Both the defendant and Michael Miller were arrested and searched. No contraband was found on defendant's person. The search of Michael revealed "a small quantity of marijuana" and $3,000 "in thousand dollar increments rolled up in rubber bands." Defendant then, in the presence of the detectives, said to Michael: "I knew that this was going to get us into trouble. You told me not to worry."
After the arrest of the defendant and Michael, at about 10:30 a.m., the detectives returned to the Days Inn Hotel. The detective and his colleague approached Thomas and Hazel Miller's room and identified themselves as State Police Detectives. Thomas Miller stated that he did not have any relatives staying at the hotel, although he did have a brother named Tony. The Millers signed a consent form for the search of their room. The search yielded "a small amount of narcotics and . . . some paraphernalia[,]" as well as $1,000 "rolled up in rubber bands." When the detectives informed them that Michael Miller and the defendant were under arrest for narcotics, Thomas Miller indicated that he would cooperate. A consent form was executed for their vehicle and the detectives found more marijuana in the glove compartment.
All four suspects were then taken to police headquarters for processing. Both Thomas Miller and the defendant were advised of their Miranda rights again. Thomas gave the detectives a statement at the police station regarding his involvement with the marijuana. He stated he was given a sum of money to retrieve a suitcase full of marijuana from the Pittsburgh airport and bring it to New Jersey and deliver it to his brother. He was given two pounds of marijuana as payment for his services, which he placed in his house in Ohio.
At trial, the detective who testified at the suppression hearing and the detective who accompanied him when defendant's vehicle was stopped testified as to the events of the evening in question. Then, a Sergeant of the Bergen County Prosecutor's Office, who is the Administrator and Training Officer of the Bergen County Narcotics Task Force, testified for the State as an expert witness on narcotics. He was in law enforcement for twenty-five years and on the Task Force for four years. He attended basic narcotics investigation courses at the Bergen County Police Academy, advanced courses at the State Police Academy, advanced drug enforcement courses given by the U.S. Drug Enforcement Agency, as well as courses on both criminal investigations and drug abuse. The expert testified he "conducted, participated in or supervised over the years thousands of investigations" and made hundreds of arrests for either possession or trafficking of narcotics. He said he qualified as an expert in narcotics in municipal courts and at least a dozen times in State Superior Court. He was accepted as qualified by the trial court.
The prosecutor then presented an extended hypothetical set of facts to the expert. The witness responded that it was his opinion that the marijuana was possessed with the intent to distribute. He approximated that the confiscated marijuana was worth about $14,000 to $15,000 if sold in bulk or about $35,000 if sold by the ounce. He stated that the marijuana found was divided into half kilo bricks and was manicured for retail sale. The expert also opined that traveling in pairs, nervousness, lack of identification, inconsistent ...