May 6, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAWN JOHNSON, DEFENDANT-APPELLANT.
On appeal from the State of New Jersey, Law Division, Camden County, Indictment No. 01-12-3787.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2008
Before Judges A.A. Rodríguez, C.S. Fisher and C.L. Miniman.
Based on a tip received from a confidential informant, surveillance was conducted on co-defendant Pedro Rivera. In the process of observing Rivera's movements a few days later, Detective Shane Sampson of the Camden Police Department was following Rivera's vehicle when it stopped at defendant's house. Rivera remained in his vehicle and beeped the horn. Defendant exited his home and approached the rear of a blue Pontiac Sunbird that was parked on the street behind Rivera's vehicle. Detective Sampson observed defendant as he "opened the trunk, bent down to his . . . feet, appear[ing] to be tying his shoes . . . for a couple of seconds, came up in one motion, [and] placed something in the back of the trunk that had a barrel and a handle on it." This suggested to the detective, based on his experience, to believe defendant had placed a handgun in the trunk of the Sunbird. Defendant then entered the driver's side of the Sunbird, and Rivera exited his vehicle and got in the front passenger seat of the Sunbird.
Detective Sampson continued his observations as Rivera "lean[ed] back," and "remove[d] something from his waist area," and handed a black plastic bag to defendant. Defendant then "took the bag" and "put it in his left [side] pocket." In his testimony, Detective Sampson indicated that the black bag was "crumpled up," and small enough that he would not have been able to see it without binoculars. A few minutes later, defendant and Rivera drove away in the Sunbird.
Concluding that he had witnessed an illegal drug transaction, Detective Sampson radioed for backup units to stop the Sunbird. Upon arriving at the place where the Sunbird was stopped by the backup officers, Detective Sampson observed that the Sunbird was "in the middle of the street, parked on an angle with the driver's side door . . . open," and that defendant was running from the vehicle. Detective Sampson got out of his unmarked vehicle, "yelling police, stop." Before defendant was apprehended, Detective Sampson saw him reach into his pocket, remove the black bag and throw it to the ground. The black bag contained a "[s]maller sandwich bag containing a white rock substance" later identified as cocaine.
Thereafter, Detective Sampson looked in the Sunbird's trunk and found a handgun loaded with hollow point bullets. Further investigation revealed that the vehicle was registered to defendant's wife, Keysha Johnson.
Detective Sampson then returned to defendant's house with other officers. Detective Sampson knocked at the door; Keysha "came to [a second floor] window, [and] asked who it was." The detective identified himself and asked whether she was defendant's wife. Keysha acknowledged she was defendant's wife.
Detective Sampson then told Keysha about defendant's arrest and asked whether she would "consent or let [them] look through the house." He advised Keysha that she did not have to consent, but "she said yeah you can go ahead and search the house." Keysha also signed a consent form.
In searching defendant's house, the police recovered a coffee grinder with a white powdery substance in the grinder area, a digital scale with a white powdery substance on it, numerous small clear and blue plastic bags of the type used to package and sell illegal drugs, a box of ammunition in a night stand, a revolver in a dining room hutch, and a bag of marijuana on the top of a dresser.
At the police station, defendant was advised of and waived his Miranda*fn1 rights. He gave a statement, which was recorded and later played for the jury, in which defendant acknowledged that the items found in his home belonged to him.
Defendant was charged with various drug and weapon offenses, as well as resisting arrest.
Defendant moved for the suppression of evidence, based on his contentions that: his arrest was not supported by probable cause; the warrantless search of the Sunbird's trunk was not incident to his arrest; and Keysha was not authorized and did not voluntarily consent to the search of defendant's home. The trial judge denied this motion in its entirety.
At the conclusion of a trial, defendant was convicted by a jury of: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); fourth-degree possession of prohibited weapons and devices, N.J.S.A. 2C:39-3(f); second-degree possession of a firearm during drug distribution, N.J.S.A. 2C:39-4.1(a); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2), and second-degree being a person prohibited from possessing weapons, N.J.S.A. 2C:39-7(b).*fn2 Defendant was acquitted of fourth-degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5(b)(12). And the jury was unable to render a verdict on the remaining charges of second-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(b)(2), and third-degree possession of cocaine with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7.
The trial judge granted the State's motion for an extended term, pursuant to N.J.S.A. 2C:44-3(a), and imposed an extended term of seventeen years, with an eight-and-one-half-year period of parole ineligibility, on defendant's conviction for being a person not permitted to be in possession of weapons.*fn3 The judge also imposed: a five-year prison term on the conviction for second-degree possession of a firearm during drug distribution; a five-year prison term on the third-degree CDS possession conviction; a one-year prison term on the fourth-degree possession of prohibited weapons and devices conviction; and a one-year term on the fourth-degree resisting arrest conviction. The five-year and one-year prison terms were ordered to run concurrently with each other; they were also ordered to run consecutively to the seventeen-year term on defendant's conviction for being a person not permitted to be in possession of weapons.
Defendant appealed, raising the following arguments for our consideration:
I. ALL ITEMS OF EVIDENCE RECOVERED BY THE POLICE SHOULD HAVE BEEN SUPPRESSED AS A) THE ARRESTS OF THE DEFENDANTS WERE NOT SUPPORTED BY PROBABLE CAUSE; B) THE SEARCH OF THE DEFENDANT'S MOTOR VEHICLE WAS NOT INCIDENT TO A LAWFUL ARREST AS THE DEFENDANTS HAD BEEN SECURED PRIOR TO THE SEARCH; C) VALID CONSENT WAS NOT OBTAINED PRIOR TO THE SEARCH OF THE DEFENDANT'S RESIDENCE.
A. All items of evidence recovered by the police should have been suppressed as the arrests of the defendants were not supported by probable cause. U.S. CONST. AMENDS. IV AND XIV; N.J. CONST. (1947), ART I, PAR. 7).
B. Assuming arguendo the arrests of the defendants were valid, the search of the defendant's motor vehicle was not incident to a lawful arrest as both defendants had been secured prior to the search.
C. The search of defendant's residence was unlawful because valid consent was not obtained prior to the search.
II. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE THE DEFENDANT'S TAPED STATEMENT AS THE STATE FAILED TO ESTABLISH THAT THE DEFENDANT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVED HIS MIRANDA RIGHTS.
III. THE COMMENTS MADE BY THE PROSECUTOR IN HER SUMMATION AMOUNTED TO PROSECUTORIAL MISCONDUCT THEREBY DENYING THE DEFENDANT HIS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. V, VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 9 AND 10).
IV. THE TRIAL COURT'S FAILURE TO GIVE ADEQUATE JURY INSTRUCTIONS WITH RESPECT TO FLIGHT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV, N.J. CONST. ART. I, PAR. 1 (NOT RAISED BELOW).
V. THE TRIAL COURT ABUSED ITS DISCSRETION IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS COULD BE USED TO IMPEACH HIS CREDIBILITY THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. (U.S. CONST. AMEND. V, VI AND XIV; N.J. CONST. (1947) ART. I, PARS 9 AND 10).
VI. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE STATE DID NOT ESTABLISH A PRIMA FACIE CASE WITH RESPECT TO THE CHARGES IN THIS MATTER.
VII. THE TRIAL JUDGE ABUSED H[ER] DISCRETION IN IMPOSING A) AN EXTENDED TERM OF IMPRISONMENT AS THERE WAS NO NEED TO PROTECT THE PUBLIC AND B) A CONSECUTIVE SENTENCE AS THE CRIMES AROSE OUT OF THE SAME INCIDENT AND DID NOT INVOLVE SEPARATE ACTS OF VIOLENCE.
A. The trial judge abused h[er] discretion in imposing an extended term of imprisonment as there was no need to protect the public.
B. The trial judge abused h[er] discretion in imposing a consecutive sentence as the crimes arose out of the same incident and did not involve separate acts of violence.
Defendant also filed a pro se brief in which he raises the following issue, which we have renumbered:
VIII. DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION, AND UNDER ARTICLE 1, PARAGRAPH 9, OF THE NEW JERSEY STATE CONSTITUTION, AND HIS RIGHT TO TRIAL BY JURY, WHEN THE TRIAL COURT LET THE STATE TELL THE JURY THAT THE DEFENDANT WAS ALREADY CONVICTED OF POSSESSION OF WEAPON.
We find insufficient merit in the arguments contained in Points II, III, IV, V, VI and VIII to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also reject the arguments contained in Point I for the reasons that follow. And, lastly, we agree with that part of Point VII in which defendant contends that he is entitled to be resentenced, as the State concedes.
In Point IA, defendant argues that his arrest was not based on probable cause because there was insufficient evidence regarding the confidential informant's reliability, knowledge, and veracity. The State argues in response that the confidential informant's tip should be considered in light of the totality of the circumstances, including the police observations of defendant and Rivera.
We start our analysis with the well-established principle that "[a] warrantless arrest may be made only where there is probable cause." State v. Sims, 75 N.J. 337, 353 (1978). Probable cause exists when "the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Id. at 354 (internal quotes and citation omitted). A court may properly consider as a factor the police officer's training and experience, State v. Smith, 155 N.J. 83, 99, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998), as well as an informant's veracity and basis of knowledge to determine whether the totality of the circumstances support a finding of probable cause, Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed. 2d 527, 548 (1983). See also State v. Zutic, 155 N.J. 103, 110-11 (1998). In addition, a suspect's furtive gestures may be considered as a factor to establish probable cause. State v. Williams, 117 N.J. Super. 372, 376 (App. Div.), aff'd, 59 N.J. 535 (1971); State v. Barrett, 170 N.J. Super. 211, 215 (Law Div. 1979).
The trial judge, in finding that the police had probable cause to arrest, said:
Therefore, two people sitting in a car where one person gives another person an object in a black bag and pulls it in a furtive way out of perhaps the waistband or the lower part of his clothing, that might not ordinarily seem to be probable cause to me.
But, I give Detective Sam[p]son the benefit of his years of experience, his 900 drug investigations and his 500 hours of training.
When I also take into consideration all of the other factors which he pointed to, that [defendant] had a gun; that he concealed it in the trunk; that the two of them exchanged an item in a way that was furtive without any conversation; that there had to have been a prior conversation before that, all these factors are factors which Detective Shane Sam[p]son as a highly experienced narcotics officer, these to him were suggestive of probable cause.
And I believe as well that they were. Again, because of the furtive nature of the activity, the fact that a gun was involved, and also that a confidential informant who had been reliable in the past had indicated that Rivera was a drug dealer and would be making an exchange of an item to another person and [defendant], of course, accepted the transfer of the item and had it in his possession at the time, so therefore he is guilty -- would be charged with possession of the item even though he wasn't the original person to have it.
In any event, I find therefore that Detective Sam[p]son had probable cause to make an arrest of [defendant] at the time that the broadcast was made.
As can be seen, the judge's decision was weighted more by Detective Sampson's observations than the information provided by the confidential informant. Accordingly, defendant's argument that the State did not properly present information regarding the informant's veracity or basis of knowledge is, in this setting, largely irrelevant.
The judge's findings regarding Detective Sampson's observations are supported by adequate evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999). We affirm the denial of this aspect of defendant's motion to suppress substantially for the reasons set forth in the trial judge's oral decision.
Defendant argues that the trial judge erred in admitting the handgun into evidence, claiming that the search of defendant's trunk was not incident to an arrest.
A search incident to a lawful arrest permits police, at the time that they arrest a suspect, to search the person of the arrested individual and the area within his reach. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 2d 685 (1969); State v. Moore, 181 N.J. 40, 45-47 (2004); State v. Pagan, 378 N.J. Super. 549, 554 (App. Div. 2005). The underlying rationale for this exception revolves around the need for the police officer's safety and the preservation of evidence. Chimel, supra, 395 U.S. at 762-63, 89 S.Ct. at 2040, 23 L.Ed. 2d at 694. In cases where a person is arrested while operating a vehicle, the police may only search the interior compartment of the vehicle from which the arrested may reach to destroy evidence or to obtain a weapon. State v. Eckel, 185 N.J. 523, 540-41 (2006). It follows, as well, that where the arrested individual is no longer near the vehicle because he or she has been removed and secured, a search incident to arrest is not an available exception to the warrant requirement. Id. at 541. The trial judge relied upon the search incident to arrest exception to the warrant requirement in denying defendant's motion to suppress. The State concedes that reliance upon this exception was mistaken.
The State argues, however, that we may nevertheless affirm the denial of defendant's motion to suppress because the handgun found in defendant's trunk was admissible pursuant to the automobile exception to the warrant requirement. We agree.
Like a search incident to arrest, the automobile exception allows police to search a vehicle without a warrant where there is probable cause to believe that the vehicle conceals evidence and exigent circumstances are presented. Carroll v. United States, 267 U.S. 132, 144, 45 S.Ct. 280, 282, 69 L.Ed. 543, 547 (1925); State v. Dunlap, 185 N.J. 543, 549-51 (2006); State v. Wilson, 178 N.J. 7, 13 (2003); State v. Cooke, 163 N.J. 657, 664-65 (2000). "Probable cause requires 'a practical, common-sense decision whether, given all the circumstances there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Demeter, 124 N.J. 374, 380-81 (1991). In respect to the particular place searched, "[t]he scope of a warrantless search of an automobile is defined by the object of the search and the places where there is probable cause to believe that it may be found." State v. Esteves, 93 N.J. 498, 507 (1983). "[U]nder the automobile exception, the reasonableness of the warrantless search is justified not to assure that evidence is not immediately grabbed and destroyed by an arrestee who is then present but rather to assure that evidence is not 'otherwise' removed or destroyed." State v. Irelan, 375 N.J. Super. 100, 116 (App. Div. 2005). The most compelling rationale for the automobile exception is "the exigent circumstances created by the inherent mobility of vehicles that often makes it impracticable to obtain a warrant." State v. Alston, 88 N.J. 211, 231 (1981).
The present matter is similar to State v. Hammer, 346 N.J. Super. 359, 363-64 (App. Div. 2001). There, defendant was pulled over by police for speeding. Because the defendant did not have proper identification, the police officer asked the defendant to step out of the car, at which time two hollow point bullets fell out of the defendant's coat. Id. at 364. We held there was probable cause to search the trunk of the vehicle because the police had probable cause to believe that the defendant was in possession of a weapon, given the presence of the bullets. Id. at 367. In that case, the police first searched the interior portion of the automobile for a weapon, and instead, found a bag of cocaine, the police's concern for their personal safety further permitted the search to the trunk compartment. We said that "[g]iven the trooper's experience and training, and the fact that drug traffickers often possess weapons, his discovery of what appeared to him to be a sizeable amount of drugs, coupled with the hollow point bullets, established probable cause to search the trunk and its contents for weapons, if not for additional contraband." Id. at 367-68.
The circumstances at hand are also similar to those in State v. Carroll, 386 N.J. Super. 143, 159 (App. Div. 2006). There, when the police tried to apprehend the defendant, he ran out of his vehicle, leaving the door open and a bag containing cocaine and paraphernalia inside the car. Id. at 147-48. We held that although the trial court inappropriately admitted the evidence pursuant to a search incident to arrest exception, it should have been admitted under the automobile exception to the warrant requirement. Id. at 156. Even though the defendant was arrested, the exigent risks concerning the car containing drugs or weapons or both were not eliminated. Id. at 159.
Like the defendant in State v. Carroll, defendant here also fled from police, leaving the driver's door open. Considering the police observations regarding the hand-to-hand transaction between defendant and Rivera, and the placing of a weapon in the trunk, we are satisfied that exigent circumstances were presented. The police were not required to "stand guard" over the vehicle in this type of situation "while concurrently applying to a judge for a search warrant." Ibid. (internal quotes omitted).
In Point IC, defendant argues that the evidence does not support the judge's findings that (a) Keysha Johnson had the apparent authority to consent to a search of defendant's house, (b) consent was freely and voluntarily given, and (c) police should not have sought third party consent to search his residence when he was already in custody.
"Any warrantless search is prima facie invalid." State v. Hempele, 120 N.J. 182, 217 (1990) (internal quotes omitted). However, when the warrant requirement is both voluntarily and knowingly waived, then a consent search may be conducted. State v. Maristany, 133 N.J. 299, 305 (1993); State v. Johnson, 68 N.J. 349, 353-54 (1975). In other words, a person may not be coerced into giving consent and must be made aware of the right to refuse consent. State v. Domicz, 188 N.J. 285, 308 (2006); State v. Todd, 355 N.J. Super. 132, 138-39 (App. Div. 2002). For consent to be valid, an authorized person must voluntarily give consent. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed. 2d 242, 249 (1974); State v. Pante, 325 N.J. Super. 336, 349 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000); State v. Douglas, 204 N.J. Super. 265, 276-79 (App. Div.), certif. denied, 102 N.J. 378 (1985).
After an evidentiary hearing, the trial judge made findings about the credibility of the witnesses and concluded that the police advised Keysha of her right to refuse to consent and that Keysha consented. The judge's thorough findings are fully supported by the evidence and are entitled to our deference. Locurto, supra, 157 N.J. at 471.
Defendant argues, however, that Keysha had no authority to consent, claiming she was not a person "who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, supra, 415 U.S. at 171, 94 S.Ct. at 993, 39 L.Ed. 2d at 250; see also State in the Interest of C.S., 245 N.J. Super. 46, 49 (App. Div. 1990); State v. Miller, 159 N.J. Super. 552, 557 (App. Div.), certif. denied, 78 N.J. 329 (1978).
Here, there is no dispute that Keysha and defendant were married at the time and had a child together. The judge also found that, despite testimony to the contrary,*fn4 that Keysha actually lived at the premises in question. Again, these findings are supported by the evidence, are based on the judge's credibility rulings, and are entitled to our deference.
And, lastly, with regard to defendant's contentions regarding the search of his home, we note that without citation, defendant argues that the police should have sought consent from him before seeking consent from Kayesha. We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The State concedes that because an extended term was imposed defendant is entitled to be resentenced in accordance with the principles set forth in State v. Pierce, 188 N.J. 155 (2006). Accordingly, we will remand for resentencing without considering any of the other arguments raised by defendant regarding the sentence imposed, which may be raised on appeal again once the remand proceedings are complete.
The convictions are affirmed. The matter is remanded for resentencing. We do not retain jurisdiction.