On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 04-11-01624-I.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Wecker and Fuentes.
By leave granted, the State appeals an order granting motions on behalf of each defendant to suppress evidence seized after a consent search of a car on the New Jersey Turnpike on September 17, 2004.*fn1 The six co-defendants had been traveling in two cars from New York City in the early hours of the morning, headed for North Carolina, when one of the cars broke down. Two state troopers pulled over to assist. But defendants' reactions and inconsistent responses to the troopers' preliminary questions, as well as the condition of the vehicle itself, aroused the troopers' suspicions that criminal conduct or evidence of crime was involved.
Those suspicions led the troopers to request defendant Christopher Leach, who was in control of both vehicles, to consent to a search of the disabled vehicle. Leach orally consented, but initially refused to sign the consent form that was presented to him. Immediately after a trooper informed Leach that he did not have to consent, but that the trooper intended to call for a dog if he did not, Leach signed the consent form. A search of the disabled vehicle produced a half kilogram of cocaine and over fifty grams of marijuana. All six defendants were promptly arrested, and subsequent searches incident to arrest produced a small quantity of crack cocaine on defendant Michelle Elders; $8,000 in cash on defendant Ronald Stanley, and $3,000 cash on Leach.
After an evidentiary hearing on the motions to suppress all of the evidence seized,*fn2 the Law Division judge granted defendants' motions on the ground that the troopers did not have reasonable suspicion to seek Leach's consent to search the disabled car, as required by State v. Carty, 170 N.J. 632 (2002). The judge also found that even if the troopers did have reasonable suspicion to seek consent, the threat to call for a drug-sniffing dog made that consent involuntary, and evidence seized thereafter was inadmissible.
On appeal, the State first argues that Carty does not apply because the police did not initiate the highway stop. The State further argues that even if Carty does apply, the totality of the circumstances created reasonable suspicion that defendants were involved with unlawful activity and that one or the other vehicle was likely to contain contraband. Finally, the State maintains that Leach's consent was voluntary.
Defendants contend that nothing about their conduct while attempting to repair the disabled vehicle on the shoulder of the Turnpike was sufficiently unusual to arouse reasonable suspicion of criminal activity or evidence of a crime, as required by Carty. Defendants further argue that Leach did not voluntarily consent to the search because his consent was coerced by the trooper's threat to call for "a dog."
We agree with defendants that Carty applies in the circumstances presented. We agree with the State, however, that the troopers had reasonable suspicion to justify the request for Leach's consent to search the disabled vehicle that was under his control, and that under all the circumstances, his consent was voluntary. We therefore reverse the order excluding evidence seized from the disabled vehicle, as well as evidence subsequently seized from the individual defendants.
These are the facts adduced at the suppression hearing, where two state troopers were the only witnesses, but where the troopers' videotaped encounter was shown.*fn3
As Trooper Sean O'Connor readily admitted, and as the judge found, events in this highway incident moved swiftly from a public-safety, caretaking action to investigatory questioning. Trooper O'Connor and Sergeant Ronald Klem were patrolling the Turnpike together when they saw a disabled vehicle and a second car on the right shoulder of the inner roadway (the car lanes) of the southbound Turnpike, at mile marker 86.5. The troopers were driving on the outer southbound roadway and did not stop because they were "pacing" a speeding vehicle.*fn4 When they drove by on the inner roadway at 2:50 a.m., and saw the same two cars on the shoulder, they activated their overhead lights and pulled over behind the disabled vehicle. The video camera on the troopers' marked car was automatically activated when the flashing lights were activated.*fn5 Trooper O'Connor carried the only microphone in his pocket.
The troopers called in to their dispatcher a description of the vehicles, a Lincoln and a Honda, the number of persons involved, and the plate numbers. Trooper O'Connor testified that as they pulled over behind the disabled Lincoln, he saw two men under the vehicle, later identified as defendants Anthony Graham and Marcellius Love, and two women sitting on the guardrail, later identified as defendants Elders and Tasha Jones. A second car, a Honda, was parked in front of the Lincoln on the shoulder, and two individuals, later identified as Leach and Stanley, were seated in that car.
Trooper O'Connor approached the disabled car and offered assistance to the men working on it. He described their reaction: "They were nervous. It appeared that they didn't want any more or further assistance from us." He climbed under the car with them. They told him that the gas tank had fallen down. The only thing the men asked for was a "ratchet," which the troopers did not carry with them. Trooper O'Connor's inspection, after getting out from under the car, revealed that "the fuel filler assembly . . . was . . . disconnected and hanging free within the gas door."
Sergeant Klem also described the demeanor of the men working on that car: "To me they seemed very - initially when we first pulled up one of the males scurried out from underneath the vehicle and kind of gave us the "A Okay" sign like things were okay." Trooper O'Connor made some inquiries of Elders, one of the two women sitting on the guardrail. She told him that both cars belonged to Leach, one of the men in the Honda. A computer check revealed that both cars were registered to someone not present at the scene, but neither had been reported stolen. The trooper asked the two women to remain on the guardrail for their own safety. He told Graham and Love to come out from under the car "[f]or their own safety" and "to maintain some sort of control at the scene."
Trooper O'Connor approached the Honda and asked Leach and Stanley to get out, because
[t]he scene was very spread out. We asked them out initially not only to question them but to get more control over the scene. We were obviously at that point beginning to develop a reasonable suspicion there was some criminal activity going on and we wanted them out and contained within the scene for our own safety.*fn6
Leach confirmed that he was in control of both cars. There is no evidence that the driver of either car did not produce a valid license. According to the trooper, Leach said "'You can search the cars if you want.' He offered to let us do that." The motion, however, was argued and decided on the basis of Leach's written consent.
In brief questions addressed separately to Elders, Graham, and Leach, the troopers were told that the six had spent the weekend in New York City together, but they were also told three conflicting stories about where they had been: Manhattan, Brooklyn, or the Bronx. Leach said that he had been in the Bronx for a couple of days, where he had been buying clothes; Graham said they were all cousins, he was coming from New York, and spent time visiting family in Manhattan; Elders said that they were coming from Brooklyn, where they had been for two days. Although Graham said they were all cousins, he only knew their "street names." The troopers became suspicious, and called for backup because they were outnumbered. Two other troopers arrived at 3:08 a.m.
In response to cross-examination, Trooper O'Connor explained his raised voice at one point on the tape.
Q: Who were you speaking to, trooper?
A: At that point one of the individuals, and I can't remember who, got up off the guardrail and somebody had to take control of the situation and it wasn't going to be them so I had to put them in their place.
Q: You had to put them in their place?
A: Yes. I needed to raise my voice in order to command my point. I'm outnumbered. They know who I am. I don't know them. I don't know who I'm dealing with. I had to raise my voice to keep in a position where we're all safe.
Q: So at 3:06 A.M. all these people for all intents and purposes were being detained?
A: Their car was disabled -
Q: I'm asking you, they were being detained?
THE COURT: Let the officer finish the answer and you have another question follow up. One question at a time.
A: Their vehicle is disabled. Again, I'm asking them questions. They're free to go if I don't have enough suspicion to keep them there.
Q: They were free to go but you had to control them by making them sit on the guardrail and not letting them move?
A: Ma'am, in that situation -
Q: I'm asking you yes or no?
A: My safety comes first and I'm not going to let somebody get behind me, no, I'm not.
Q: They were either suspects or they were free to go. Which is it?
A: I was conducting an investigation at that point.
Q: It's your testimony now at 3:06 A.M. they were all free to go?
A: No, that's not my testimony. I was conducting an investigation.
Q: You just said they were free to go?
A: I said if I didn't have enough to hold them they would have been free to go, you're correct, but I felt I had a reasonable and articulable suspicion some type of criminal activity was going on and I had to continue my investigation, you're correct.
Q: So they were not free to go?
A: At that point yes, that's correct.
Trooper O'Connor sought Sergeant Klem's approval to request Leach to consent to a search "[b]ased on the conflicting statements by the occupants and their nervous demeanor." According to Trooper O'Connor, after getting the sergeant's approval, he asked and again obtained Leach's oral consent to search the Lincoln.
Q: Did Leach give you consent to search ...