October 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AHMED Q. CARTER, A/K/A AHMDED M. CARTER, A/K/A ALLEN D. FISH, A/K/A AHMED CARTER, A/K/A QUADEA M. EDWARDS, A/K/A AHMED CARTERM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-02-0105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2009
Before Judges Fuentes and Gilroy.
Defendant Ahmed Q. Carter was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with the intent to distribute N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree possession with intent to distribute cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7. He pled guilty to all of the charges without the benefit of a plea agreement and was sentenced to an extended term of seven years with forty-two months of parole ineligibility.
Defendant now appeals raising the following arguments:
THE COURT BELOW ERRONEOUSLY FOUND THAT THE CONDUCT OF THE DETECTIVE IN PRESSING THE PANIC BUTTON ON THE KEY PAD FOR THE CADILLAC WAS NOT A SEARCH ENTITLED TO THE PROTECTION OF THE FOURTH AMENDMENT. FURTHERMORE, THE COURT ERRED IN FINDING THAT KENNEDY'S CONSENT TO SEARCH WAS FREELY AND VOLUNTARILY GIVEN. AS SUCH, THE DETECTIVE VIOLATED THE DEFENDANT'S RIGHT TO BE FREE OF ILLEGAL SEARCHES AND SEIZURES. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. ART I, PAR. 7.
B. THE ACTIVATION OF THE PANIC BUTTON TO LOCATE THE CAR WAS A SEARCH AND SEIZURE WHICH LACKED THE NECESSARY CORROBORATION.
C. KIMBERLY KENNEDY'S CONSENT TO SEARCH WAS NOT VOLUNTARILY OR FREELY GIVEN.
We reject these arguments and affirm. We gather the following facts from the evidence developed before the trial court.
On September 7, 2006, Detective Kevin McDonough, an eighteen-year veteran of the Elizabeth Police Department and member of the Narcotics Division, received a tip from an undisclosed informant about possible drug activity. McDonough had reason to trust the reliability of this information because this informant had previously given him information that lead to fifty narcotics arrests.
The informant "described a male that was down in the area of 310 Magnolia Avenue selling cocaine and [indicated] that the cocaine was stashed inside a gold Cadillac that was parked nearby." He described the alleged dealer as "a tall black male wearing ripped blue jeans and that he had a scar on his face." Based on his familiarity with this area and the physical description of the suspect, McDonough believed that the individual involved was defendant.
After discovering that defendant had an outstanding municipal court arrest warrant, McDonough went to the location provided by the informant. Upon arrival, McDonough saw a man that fit the informant's description, recognized him as defendant, and arrested him. While searching defendant incident to his arrest, McDonough found "a Cadillac car key with an alarm remote." Because the informant specified that drugs were being stashed in a gold Cadillac, McDonough activated the panic button on the remote pad and "caused the horn to activate in the car that was parked on the street, the Cadillac."
McDonough advised defendant of his Miranda*fn1 rights, both verbally and in written form. He then asked defendant if he knew who owned the car that matched the keys. Defendant responded that the car belonged to his girlfriend, Kimberly Kennedy, who had taken it to work with her. Using the hand-held remote alarm device, McDonough activated the car's horn again, according to the trial judge, "in an effort to show [defendant] that he . . . knew that [he] was not telling him the truth." McDonough then asked defendant if he would consent to a search of the vehicle. Defendant declined.
After confirming that the car belonged to Kimberly Kennedy, McDonough telephoned Kennedy to inform her of the situation, including that defendant had been arrested. According to McDonough, Kennedy confirmed that she had given defendant permission to use the car and was expecting him to pick her up from work. Because he was late, she had decided to walk home. McDonough and two other officers then met Kennedy on the street as she walked and obtained her written consent to search the car.
Kennedy testified at the suppression hearing that the police forced her to give consent to search the vehicle.
According to Kennedy, officers at the scene told her that unless she consented to the search she would lose her job and her child would be placed in the custody of the Division of Youth and Family Services. The trial court rejected Kennedy's testimony as not credible, finding that she freely and voluntarily gave permission to the police to search her car.
It is undisputed that Kennedy personally witnessed the police enter her car. The search revealed a telephone bill in defendant's name, pay stubs, and concealed in the center console, eighty-five vials of cocaine wrapped in a plastic bag. In the rear of the car, officers discovered a plastic bag containing defendant's wallet, identification documents, fifteen additional vials of cocaine, and an assortment of empty vials and caps.
Against these facts, we are satisfied that the police had the lawful authority to seize the cocaine from Kennedy's car. Because the police had the lawful authority to arrest defendant based on the open municipal court warrant, and were otherwise lawfully at the scene when they came upon defendant, any argument attacking the reliability of the confidential informant is rendered moot.
Our scope of review of the trial court's decision to deny defendant's suppression motion is limited. We are compelled to uphold the court's factual findings provided that they are supported by sufficient credible evidence in the record. State v. Robinson, 200 N.J. 1, 15 (2009). In this light, we have no legal basis to disturb the court's factual determinations concerning the credibility of Kennedy's testimony.
The evidence found in the car links defendant to the drugs found therein. Defendant's argument that activation of the car's remote control alarm device by the police constitutes, or is the functional equivalent of, a seizure of the vehicle under the Fourth Amendment of the Constitution of the United States or N.J. Const. art. I, ¶ 7 lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).