December 29, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JONNY A. LONDONSARROZOLA, A/K/A JOHNY A. LONDONSARRAZOLA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0561.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2008
Before Judges R. B. Coleman and Simonelli.
After the denial of his motion to suppress, defendant Jonny Londonsarrozola entered into a negotiated plea to first-degree possession of a controlled dangerous substance (CDS) (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1). In accordance with the plea agreement, Judge Heimlich imposed a seven-year term of imprisonment with a two-year period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate assessments, penalties and fee.
On appeal, defendant raises the following contentions.
THE JUDGE ERRED IN DENYING THE MOTION TO SUPPRESS AS THERE WAS NO REASONABLE BASIS FOR THE SEARCH OF DEFENDANT'S PERSON, THE SEARCH OF DEFENDANT'S HOME WAS A DIRECT PRODUCT OF THAT UNLAWFUL SEARCH AND THE DEFENDANT'S CONSENT WAS INVALID.
A. The Search of Defendant's Person Was Unlawful.
B. Defendant's Consent to Search His Home Was the Product of Coercion and the Evidence Recovered Therefrom must Be Suppressed.
We reject these contentions and affirm.
The following facts are summarized from the record. Shortly before 7 p.m. on December 18, 2005, members of the Union County Prosecutor's Office were executing a search warrant at 2020 Grier Avenue, Elizabeth (the property) regarding a narcotics investigation unrelated to defendant. Detective Oliver Kalebota, who had participated in approximately one hundred narcotics investigations, arrived at the property to retrieve some documents necessary to conduct a consent search of a storage facility connected to the investigation.
According to Kalebota, after exiting the property, he saw defendant cross the street and walk toward the property. As defendant approached, Kalebota asked him where he was going. Defendant replied that he was going to his mother's house. After the detective told defendant that he could not go into the property, defendant responded that his mother did not live there. Kalebota did not know what defendant was trying to do, and defendant's behavior confused him. When he looked down at a white plastic bag defendant was carrying, defendant said that he could search it. Defendant then "dumped [the bag's contents] into the street." Defendant complied with Kalebota's instruction to stop. He picked up the items and then emptied the contents of the bag onto the trunk of Kalebota's patrol car. The detective saw cell phones and two Western Union money wire transfers to Colombia, a country known to the detective as associated with narcotics activity. Kalebota asked defendant about the wire transfers, to which defendant responded that he had friends in Colombia.
At that point, defendant began "acting really strange" and "extremely nervous," and "[h]e was breathing heavy, fidgeting, shaking a little, and . . . started to say that he wanted to get down on his knees . . . and cry[.]" Kalebota stopped defendant when he began to kneel down. The detective then saw defendant reach towards his waistband "as if he was grabbing for something." Believing defendant might be armed, and fearing his safety and for that of a nearby lieutenant, Kalebota explained that he: grabbed [defendant's] right hand that he was reaching with, I believe grabbed with my left hand, pulled it away from his waistband with my right hand, I reached up, pulled up his sweatshirt that he was wearing, to find out what he was reaching for. I felt it was a gun by his actions.
At that time I saw a package in his waistband.
. . . . it was a clear plastic sandwich bag . . . [a]nd inside I could see squares that were wrapped in magazine paper, and looked --appeared to be some separate bundles.
My immediate impression, based on my training and experience, that it was bricks of heroin, bundles of heroin wrapped in magazine to make a brick.
The package in defendant's waistband contained two hundred individually wrapped packages of cocaine.
After handcuffing defendant, Kalebota asked for defendant's consent to search his apartment. Kalebota entered the apartment and showed defendant a consent to search form, explained it to him and advised him that he had a right to refuse the search.
Defendant read the form and signed it. He then led Kalebota to his cocaine stash.
Defendant's version of events diverged from Kalebota's version. Among other things, he claimed that no one advised him of his right to refuse to consent to the search of his apartment, that he signed the consent form after the search and that he did not read it.
Judge Heimlich found Kalebota's testimony credible and defendant's testimony not credible. The judge concluded that the search of defendant and his apartment were valid. He reasoned that based upon the totality of circumstances, including defendant's bizarre behavior and Kalebota's concern for his safety and that of his fellow officer, the detective had a duty to determine whether defendant had a weapon in his waistband. The detective also had "the right, the duty, and the responsibility to remove [the package] from [defendant's waistband]" and place him under arrest.
Our review of a trial judge's findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give great deference to the trial judge's factual findings and will not "engage in an independent assessment of the evidence as if [we] were the court of first instance. Id. at 471. We also give deference to the trial judge's credibility determinations. Id. at 474; Johnson, supra, 42 N.J. at 161. In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting Locurto, supra, 157 at 474); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We will reverse only if we are convinced that the trial judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting Johnson, supra, 42 N.J. at 162). "In those circumstances solely [we] 'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162). With these standards in mind, we review defendant's contentions.
Defendant contends that Kalebota had no reasonable basis to search him. Defendant also contends that the consent to search his apartment was invalid because it was coerced. He claims that he was not advised of his right to refuse to consent and that he consented out of fear.
"[I]t is well settled that any warrantless search is prima facie invalid and gains validity only if it comes within one of the specific exceptions created by the Supreme Court." State v. Alston, 88 N.J. 211, 230 (1981) (citing State v. Young, 87 N.J. 132, 141-42 (1981); State v. Welsh, 84 N.J. 346, 352 (1980); and State v. Patino, 83 N.J. 1, 7 (1980)). Further, because the State's obligation to obtain a search warrant prior to seizing evidence "is not lightly to be dispensed with," it is the State's burden to prove that the warrantless search falls within one of the recognized exceptions to the rule. Ibid. (citing Welsh, supra, 84 N.J. at 352; Patino, supra, 83 N.J. at 7; and State v. Sims, 75 N.J. 337, 352 (1978)).
Because of the interests at stake, it becomes necessary "'to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,' for there is 'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.'" Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879-80, 20 L.Ed. 2d 889, 905-06 (1968) (quoting Camara v. Municipal Court, 387 U.S. 523, 534-37, 87 S.Ct. 1727, 1734-35, 18 L.Ed. 2d 930, 939-40 (1967)). The State must, therefore, "be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. Therefore, under certain circumstances, it is appropriate under the exception carved out in Terry to conduct an investigatory stop, which includes a limited, protective search for weapons on an individual and a temporary detention of that person for that purpose. Id. at 27. The propriety of the investigatory stop implicates the community caretaking function and the common law right of police to inquire based upon the belief that criminal activity may be involved. State v. Matthews, 398 N.J. Super. 551, 558 (App. Div. 2008), certif. denied, 196 N.J. 344 (2008). What is necessary is not probable cause, but a reasonable and articulable suspicion of unlawful conduct.
A police officer may conduct a pat-down search for weapons if he or she has a reasonable belief that the suspect is armed and dangerous regardless of whether there is probable cause for the arrest. Terry, supra, 392 U.S. at 27, 88, S.Ct. at 1883, 20 L.Ed. 2d at 910; State v. Thomas, 110 N.J. 673, 679 (1988) (citing Ybarra v. Illinois, 444 U.S. 85, 92-93, 100 S.Ct., 338, 343, 62 L.Ed. 2d 238, 247 (1979)). The reasonableness of the search is measured by an objective standard. Thomas, supra, 110 N.J. at 679. "The officer must be able 'to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.'" Ibid. (quoting Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903 20 L.Ed. 2d 917, 935 (1968)). To determine whether an objectively reasonable suspicion exists, the court must look to the totality of the circumstances and determine whether those circumstances created an "objectively reasonable concern for the officer's safety." State v. Roach, 172 N.J. 19, 27, 29 (2002).
Additionally, a police officer may conduct a search pursuant to the consent of the person whose person or property is the object of the search. State v. Maristany, 133 N.J. 299, 305 (1993); State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000). The consent to search must be voluntarily given and not the result of duress or coercion. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed. 2d 854, 860 (1973); Maristany, supra, 133 N.J. at 305; State v. Sugar, 100 N.J. 214, 234 (1985). Although a timely signed consent form is some evidence of voluntariness, State v. Alexander, 170 N.J. Super. 298, 306 (Law Div. 1979), aff'd o.b., 173 N.J. Super. 260 (App. Div. 1980), the voluntariness of consent is determined from the totality of the circumstances. Schneckloth, supra, 412 U.S. at 248-49, 93 S.Ct. at 2059, 36 L.Ed. 2d at 875; Sugar, supra, 100 N.J. at 234.
Based upon our careful review of the record, we are satisfied that there is ample evidence in the record supporting Judge Heimlich's credibility and factual findings. The totality of circumstances, including defendant's odd behavior and his move toward his waistband, led Kalebota to reasonably suspect that defendant was armed and dangerous and to reasonably believe that his safety and that of his fellow police officer was in jeopardy. The totality of the circumstances also shows that defendant's consent to his apartment was voluntary and not the result of duress or coercion.
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