On appeal from the Superior Court of New Jersey, Law Division, Union County, 98-10- 1426-I.
Before Judges Stern, Eichen and Collester.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically March 1, 2002
Union County Indictment No. 98-10-1426 charged defendant Taihisha Brown with fourth degree possession of CDS (marijuana), N.J.S.A. 2C:35-10a(3) (count one), and first degree possession of CDS (marijuana) with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two). Following the denial of her "motion to suppress" evidence, she entered a guilty plea to count two in exchange for the State's agreement to dismiss count one and to recommend that she be sentenced to five years in prison as a second degree offender. At the time of the negotiated plea, defendant did not specifically reserve her right to appeal the admission of her statements as required by R. 3:9-3(f). *fn1 The court sentenced defendant in accordance with the terms of the plea agreement. Appropriate fines and penalties were also imposed. Defendant then appealed the denial of her "motion to suppress." Bail was continued pending the appeal.
The conviction stems from an investigatory stop of defendant by officers of the Drug Enforcement Agency (DEA) assigned to Newark International Airport following defendant's arrival on an American Airlines flight from Los Angeles, California. Defendant was asked if she would accompany the agents to the airline office after she could not produce identification or her plane tickets and after an unclaimed suitcase suspected of belonging to defendant was sniffed by a narcotics dog which reacted positively to the presence of drugs inside the bag. Defendant agreed to go with the DEA agent and on route confessed to owning the suitcase and knowing it contained marijuana.
On appeal, defendant argues that (1) her statements admitting ownership of the suitcase containing the marijuana should have been suppressed because they resulted from custodial police questioning, i.e., a de facto arrest, without the required administration of Miranda *fn2 warnings; and (2)defendant's consent to search was invalid because it was the result of "coercive circumstances."
These are the relevant specific facts. On June 17, 1998, at about 5:00 p.m., defendant arrived on an American Airlines flight from Los Angeles at Newark Airport. Prior to departing from Los Angeles, defendant had checked a suitcase on board which she knew contained fifty-five pounds of marijuana and which she intended to deliver to an individual in New York City. Upon her arrival, she was placed under surveillance by Detective Charles Benoit, a Port Authority police officer assigned to the DEA Task Force as an undercover officer. Detective Benoit testified that because "narcotics are routed into this area from Southern California" he, Detective Kane *fn3 and Special Agent Mark Rusin, who was in charge, were watching the passengers disembark from the 5:00 p.m. flight from Los Angeles when his attention was drawn to defendant by her unusual clothing. *fn4
A short time later, Detective Benoit saw defendant again at the baggage claim area standing back approximately ten feet from the carousel. This behavior also aroused his suspicion. Detective Benoit watched defendant approach a sky cap, and walk outside with him. Special Agent Mickey Caspar and Detective DellaSerra were then directed to go outside and watch her. Within "a matter of minutes[,] all the luggage was retrieved and the people walked away." Only one bag remained. The bag was then placed to the side of the carousel, and it was determined that it had been checked in by a Taihisha Brown. Detective Benoit remained with the suitcase while Agent Rusin went to get a narcotics detecting dog. Within a few moments, the dog appeared with its handler and "alerted to the bag, [indicating] the presence of narcotics in the suitcase." At this point, approximately twenty to twenty-five minutes had elapsed since defendant had gone outside the terminal.
Detective Benoit then approached the sky cap who had been previously talking with defendant outside. The sky cap reported that defendant had asked him to retrieve the suitcase from the carousel, but he told her he could not get the bag without a claim check and that she said, "I can't give you the claim check." Meanwhile, defendant was observed through the "glass walls ... start[ing] to move toward a taxi stand." Detective Benoit immediately proceeded outside with Detective Kane following behind, "the suitcase in tow." Officer Caspar and Detective DellaSerra, who were already outside, approached defendant. Detective DellaSerra testified that defendant "was about to get into a cab." However, they showed their badges, identifying themselves, and Detective DellaSerra asked defendant if he could speak with her. Defendant agreed and did not get into the taxi. Detective DellaSerra then asked defendant for identification and her ticket. Defendant responded that "she [had] lost her i.d." but that her name was "Nakita Dalrimple."
Detective DellaSerra testified that he heard Detective Kane say that the dog had alerted to the suitcase and that, in his view, that "was enough to take her into cust[ody] - she wasn't free to go at that point." However, Detective DellaSerra stated he never told defendant she was under arrest or that she was not free to leave, also maintaining that he did not touch defendant. In fact, Detective DellaSerra testified that he told her "you're not under arrest, you're free to go." *fn5
Within moments, Detective Benoit arrived with Detective Kane and the suitcase, and began speaking with defendant. At that point, Detective DellaSerra stepped back several feet to wait with the other three officers who were standing nearby. Detective Benoit stated that as he arrived, he heard defendant tell Detective DellaSerra that she had lost her ticket and her identification, and heard her give the name "Nakita Dalrimple." Defendant also told Detective DellaSerra that she was a stripper who had been at a party in Los Angeles. With this information in mind, Detective Benoit introduced himself and asked defendant "if it was her suitcase and if she was Taihisha Brown." She replied "no," but then volunteered that "she knew Taihisha Brown, [that] they had flown together out to California, but she didn't return with her." Knowing that the suitcase could not have been transported without its owner checking in on board, Detective Benoit became even more suspicious of defendant. He then asked defendant "if she would accompany [them] to the American Airlines baggage claim office to verify the information that she had volunteered and she said she would."
"On the way back defendant told [Detective] Benoit that she was Taihisha Brown and that she had identification and the baggage claim check in her pocket." Detective Benoit then took defendant into custody. According to Detective Benoit, from the time they initially approached defendant and her admission that it was her suitcase it was only "a couple of minutes." After defendant admitted her ownership of the suitcase and was placed under arrest, she was taken to the task force office for processing.
Detective Benoit further testified that upon arrival at the office, he gave defendant her Miranda warnings. He also stated that she indicated she understood them, and signed the Miranda card. In addition, after being advised of her right to refuse to consent, defendant consented to a search of the suitcase. It was approximately 6:00 p.m. at this point.
Defendant testified at the suppression hearing and admitted to being paid to transport the marijuana from Los Angeles. She claimed this was the first time she had ever committed a crime.
She claimed that when she arrived she felt ill and, therefore, spoke to the sky cap about bringing her bag outside. Defendant stated she is an epileptic. She claimed the sky cap realized she was ill and asked if he could help her. She asserted she then asked him to bring her bag outside but that he told ...