On appeal from the Superior Court, Appellate Division, whose opinion is reported at
SYLLABUS BY THE COURT
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This is a warrantless automobile search case. In State v. Carty, the Supreme Court held that a police officer could not ask for consent to search a lawfully stopped vehicle or its occupants unless the officer had a "reasonable and articulable suspicion" that the occupants were engaged in criminal wrongdoing. In this case, the Court has to decide whether the principles of Carty extend to the occupants of a car disabled on the shoulder of a highway.
In the early morning hours of September 17, 2004, Trooper Sean O'Connor and Sergeant Ronald Klem were patrolling the New Jersey Turnpike in the area of Edison Township when they saw a disabled Lincoln Town Car on the side of the highway. Parked in front of it was a Honda Accord. At the scene, Anthony Graham and Marcellius Love were under the Lincoln attempting to reattach the gas tank. Michelle Elders and Tasha Jones were sitting on the guardrail, and Christopher Leach and Ronald Stanley were sleeping in the Honda.
As the troopers pulled up behind the Lincoln, they activated their video camera and audio equipment. Although Love signaled that everything was "okay," the troopers approached the car. Concerned that "something wasn't right," Klem and O'Connor began asking questions. On the basis of the nervousness of some of the parties, the absence of a registered owner, and the suspicion aroused by the gas tank falling off the car, Klem gave O'Connor permission to request a consent search of the Lincoln. O'Connor asked Leach for his consent. After saying he would consent, Leach initially balked at giving written authorization. Approximately an hour-and-a-half after the troopers had stopped at the scene, Leach signed the consent form. O'Connor found cocaine and marijuana under the hood. All six persons were arrested. Thereafter, the troopers found what they believed to be crack cocaine on Elders. Stanley was carrying $8,000 in cash and Leach $3,000.
The six defendants were charged with first-degree conspiracy, first-degree possession of drugs with intent to distribute, and other lesser drug charges. Defendants moved to suppress the evidence seized by the troopers. The matter was heard by Superior Court Judge Frederick DeVesa. He concluded that State v. Carty applies to situations involving disabled vehicles and that based on the videotape and the testimony of the two troopers (the defendants did not testify at the hearing), the seized drugs and money were the product of an unconstitutional, warrantless search. He suppressed the evidence.
The State's motion for leave to appeal to the Appellate Division was granted. Although that court agreed with Judge DeVesa that Carty applies to disabled vehicles, it concluded that in this case it owed "no special deference to [the trial court's] factfinding" because the key evidence was the videotape and because there were no material factual disputes arising from the evidence. The Appellate Division reversed the suppression order, and the Supreme Court granted defendants' motion for leave to appeal.
HELD: The "reasonable and articulable suspicion" standard of State v. Carty,
The opinion of the court was delivered by: Justice Albin
In State v. Carty, 170 N.J. 632, 635, modified on other grounds, 174 N.J. 351 (2002), we held that a police officer may not ask for consent to search a lawfully stopped vehicle or its occupants unless the officer has "a reasonable and articulable suspicion" that the occupants are engaged in criminal wrongdoing. A consent search of a validly stopped car without the requisite suspicion will result in exclusion of the evidence at trial. Id. at 647-48. In this appeal, we must decide whether the principles of Carty extend to the occupants of a car disabled on the shoulder of a highway.
Here, both the trial court and Appellate Division agreed that Carty applies to a disabled vehicle on a roadway, but came to different conclusions concerning the constitutionality of the consent search in this case. The trial court determined, among other things, that the state troopers, who requested consent to search a car broken down on the side of the New Jersey Turnpike, did not have reasonable and articulable suspicion to believe that the occupants were engaged in criminal wrongdoing and suppressed drugs and drug-related evidence seized from the car and its occupants. The Appellate Division reversed, maintaining that it owed no deference to the trial court's factual determinations, which were based in part on a videotape of the events on the highway, and found that the officers had the necessary level of suspicion to seek a consent search.
We now hold that the reasonable and articulable suspicion standard governing consent searches of cars validly stopped equally applies to disabled cars on our roadways. In this case, in reversing the trial court's holding that defendants were subjected to an unconstitutional search, the Appellate Division did not apply the correct standard of review for a suppression hearing. The appellate panel should have determined only whether there was sufficient credible evidence to support the trial court's findings and should not have reviewed the evidence de novo or acted as a factfinder in the first instance. Because the trial court's findings are supported by sufficient credible evidence in the record, we are compelled to reinstate the order suppressing the evidence.
Defendants Michelle L. Elders, Ronald D. Stanley, Tasha Jones, Christopher M. Leach, Anthony Graham, and Marcellius M. Love were charged in a Middlesex County indictment with first-degree conspiracy, N.J.S.A. 2C:5-2 (count one); first-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count two); third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (count three); and fourth-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (count four). The charges arose from events that occurred on the New Jersey Turnpike. After a stay in New York City, defendants apparently were returning home to North Carolina in a Lincoln Town Car and a Honda Accord when the Lincoln's gas tank came loose, sending both cars to the shoulder of the Turnpike. This set the scene for their encounter with New Jersey State Police troopers, who discovered a sizeable quantity of drugs and a large amount of cash after conducting a "consent" search of the Lincoln and a later search of defendants.
Defendants contested the constitutionality of the search and sought to suppress this evidence. At a motion to suppress hearing, the record consisted solely of the testimony of two New Jersey State Troopers -- Trooper Sean O'Connor and Sergeant Ronald Klem -- and a videotape of the encounter recorded by a camera mounted on their marked troop car.*fn1
In the early morning hours of September 17, 2004, Trooper O'Connor and Sergeant Klem were patrolling the New Jersey Turnpike in the area of Edison Township when they noticed on the shoulder of the road the disabled Lincoln Town Car. At the time, they were pursuing a speeding car and did not stop. A short while later, at approximately 2:50 a.m., the troopers observed that the Lincoln was still on the Turnpike's shoulder. The troopers then turned on their troop car's overhead light, which automatically activated both the car's video camera and audio equipment*fn2 and pulled directly behind the Lincoln.*fn3 Twenty-five feet in front of the Lincoln was a Honda Accord.
At the scene, defendants Graham and Love were underneath the Lincoln attempting to reattach the gas tank, defendants Elders and Jones were sitting on the guardrail, and defendants Leach and Stanley were sleeping in the Honda. As the troop car parked, Love came from under the Lincoln and signaled to the troopers that everything was "okay." When the troopers approached the disabled Lincoln, Graham and Love told them that the car's gas tank had fallen off the car. That explanation did not assuage Sergeant Klem, who thought "[s]omething wasn't right" and, at some point, surmised that perhaps drugs were being secreted in a compartment beneath the car. To Trooper O'Connor, Graham and Love appeared "nervous" and not desirous of help. Neither trooper called for roadside assistance.
Sergeant Klem then walked towards the Honda, where Leach and Stanley were asleep, while Trooper O'Connor engaged Elders away from her companions. In response to Trooper O'Connor's questions concerning her whereabouts, Elders responded that she was returning to North Carolina after having visited her sister in Brooklyn for two days. She told the trooper that both vehicles belonged to Leach. Trooper O'Connor then instructed her to return to the guardrail for her safety. A registration check of the cars revealed that Leach did not own the vehicles and that neither had been reported stolen.
The two troopers again approached Graham and Love, who were working underneath the Lincoln. Trooper O'Connor then got under the car, claiming to lend assistance. Graham and Love asked for a ratchet; the trooper had none to give and did not offer to call a service station. Trooper O'Connor then ordered the two men to get up from underneath the vehicle and to go to the guardrail for their safety. The trooper did so to maintain control of the scene and to facilitate his questioning of them. Indeed, he wanted to keep "tabs on everybody."
Trooper O'Connor next took Graham aside and questioned him. Graham told the trooper that he had been visiting his family in Manhattan. Graham further stated that defendants were all "cousins," but he knew them only by their street names. With that information, Trooper O'Connor conferred with Sergeant Klem, pointing out that Elders and Graham claimed to have visited two different New York City locations.
Trooper O'Connor then made his way to the Honda, where both Leach and Stanley were still asleep, and knocked on the driver's side window. The two troopers were "beginning to develop a reasonable suspicion there was some criminal activity going on," and so Trooper O'Connor directed Leach and Stanley to exit the vehicle for the troopers' safety. The troopers wanted "not only to question them but to get more control over the scene."
Leach told Trooper O'Connor that "he'd been in New York in the Bronx for a couple days where he had been buying clothes." Trooper O'Connor examined Leach about ownership of the Lincoln, and when he sensed that Leach was not cooperating, yelled, "You will answer any questions." After continued interrogation, Leach indicated that he was in charge of both cars. At that point, approximately 3:06 a.m., as revealed by the videotape, Leach told Trooper O'Connor that he wanted an attorney.*fn4 During their exchange, the trooper told Leach not to give him "attitude." Trooper O'Connor admitted at the hearing that at that time defendants were no longer free to leave the scene because he "felt [he] had a reasonable and articulable suspicion some type of criminal activity was going on," and he intended to continue his investigation. When one of the defendants moved off the guardrail, Trooper O'Connor "put them in their place" in order to "take control of the situation." At approximately 3:08 a.m., two back-up troopers arrived at the scene and kept an eye on defendants.
Based on the conflicting statements and the nervousness of some of the defendants, the absence of the registered owner, and the suspicion aroused by the gas tank falling off the car, Sergeant Klem gave Trooper O'Connor permission to request a consent search of the Lincoln. Trooper O'Connor then asked Leach whether he would consent to a search of the car. Leach initially stated that he would, but after being placed in the passenger's seat of the patrol car, he balked at giving written authorization. With Sergeant Klem positioned in the driver's seat and Trooper O'Connor kneeling outside the passenger's seat, Leach was quickly read his rights from the consent search form, including his right to refuse consent. While Trooper O'Connor was reading the consent form, Leach shook his head left and right, indicating no. When Trooper O'Connor asked him to sign the form, Leach said, "You can search my car but I don't sign." Trooper O'Connor responded, "That's fine. You don't have to sign. We'll just call for a dog." Leach was told that he would be detained until the dog arrived.*fn5
At about 3:36 a.m., after being told again that his consent had to be voluntary, Leach signed the consent form.*fn6 Trooper O'Connor thoroughly searched the Lincoln. Underneath the hood, in the engine compartment, he found black electrical tape wrapped around a "bundle" that later was identified as concealing one-half of a kilogram of cocaine and over fifty grams of marijuana. Based on the suspected contents of the bundle at the time, all six defendants were arrested and searched. On Elders, the troopers discovered a "small white chunky substance" that they believed to be crack cocaine. They also uncovered $8,000 in cash on Stanley and $3,000 in cash on Leach.
Based on the troopers' testimony and the videotape, the Honorable Frederick P. DeVesa, J.S.C., the motion judge, concluded that the drugs and money seized by the troopers were the product of an unconstitutional, warrantless search and therefore suppressed the evidence.
First, Judge DeVesa found that Carty applied to the encounter on the shoulder of the Turnpike, where the troopers stopped at first to assist the disabled vehicle. Accordingly, the troopers were not constitutionally authorized to request a consent search unless they had reasonable and articulable suspicion that defendants were engaged in wrongdoing. Judge DeVesa determined that shortly after the troopers arrived on the scene the encounter with defendants "was converted into an investigative detention." He reasoned that defendants, who were directed to sit on the guardrail by the troopers and questioned separately on the shoulder of the Turnpike, a limited access highway, were not free to leave.
Ultimately, Judge DeVesa maintained that the troopers did not possess the requisite suspicion to conduct an investigative detention or request a consent search. He found no authority to support the supposition that "mere nervousness and conflicting statements give rise to reasonable suspicion." He then focused on to the key word, articulable. He could not find an "articulable suspicion that there were drugs secreted in the [Lincoln] based upon [the] type of information" available to the troopers. (Emphasis added). Moreover, he could not accept the argument that a reasonable suspicion arises that "people are hiding drugs in the motor vehicle" whenever there is a "loose part on a motor vehicle," such as the hanging gas tank in ...