On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 56-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2010
Before Judges Lisa and Reisner.
Defendant Vylisha Bell*fn1 appeals from her December 16, 2009 shoplifting conviction by the Law Division, and from the 180 day jail sentence imposed. We affirm the conviction. We remand to the Law Division to reconsider the sentence.*fn2
These are the most pertinent facts, as elicited at the June 25, 2009 suppression motion in the municipal court. While defendant was shopping at a TJ Maxx store, two of the store's loss prevention employees saw defendant place two pairs of expensive shoes in her handbag and leave the store without paying for them. One of the employees then saw defendant place the shoes between the back seat cushions of a parked car. According to police witnesses, the store contacted them to report a shoplifting incident. When the police arrived, the store employees showed them a security video on which the shoplifting incident was recorded. Two police officers testified that defendant consented to a search of the car. During the search, the shoes were found concealed in the back seat cushions.
At the suppression hearing, neither attorney asked the police witnesses whether they had advised defendant of her right to refuse consent to search. Defense counsel did not argue the issue following the testimony, or otherwise raise the issue of whether defendant knew she had the right to withhold her consent. After hearing the testimony and argument of counsel, the municipal judge denied the motion, concluding that the police had probable cause for the search. She also reasoned that there were exigent circumstances, because the car was owned by defendant's companion, who was not under arrest and could have driven the car away at any time. However, she further found that defendant had consented to the search thereby obviating the need for a search warrant.
At the municipal trial, a store employee described in detail that she observed defendant place two pairs of orange shoes and two pairs of leopard print shoes in her shopping cart, and she then saw defendant place one pair of each type of shoe in a large purse. The employee, who was dressed like an ordinary shopper, followed defendant to the check-out counter and observed that she did not pay for the shoes in the purse. When defendant then proceeded through the first set of exit doors into the store's vestibule, the employee stopped her and asked to see the contents of her purse. Defendant "flipped out," accused the employee of falsely accusing her of theft, and threatened to file a lawsuit. She brushed past the employee and ran to a parked car. Following defendant, the employee saw her empty the shoes out of her handbag onto the back seat of the car. Either defendant or her male companion then drove the car up to the front of the store. Defendant exited the car and opened her purse to show the employees that it contained no merchandise.
According to the employee witness, when the police arrived, defendant had "all this merchandise... laid outside the car" and told the police to check that merchandise for the shoes. After the employee told the police that she had seen the shoes inside the car, the police "asked [defendant] for permission to... search the car. She said go ahead, the shoes are not in the car." The police at first found nothing, but eventually found the shoes hidden behind the back seat cushions. During her testimony, the store employee identified a photograph of the stolen shoes. That photograph was also authenticated by a police witness, who confirmed that consistent with police practice, they photographed the stolen merchandise and returned the shoes to the store.
In his trial testimony, when asked if he requested defendant's permission to search the car, the officer who recovered the shoes clarified that defendant "offered" to allow the police to search the car; "she told us to search the vehicle." He also testified that it was defendant who first called the police, complaining that a security guard had pushed her. When the police arrived they became aware that the employee was accusing defendant of shoplifting.
At the trial, defendant testified that she only had two pairs of shoes in her possession and she paid for them. However, she returned to the store when a security alarm beeped as she was leaving. After a security guard pushed her, she called the police to report that store employees were harassing and pushing her. She also denied placing any shoes in the car. Her testimony did not address the issue of her consent to search the car.
Finding the store employee and the police officers credible and defendant not credible, the municipal judge found defendant guilty of shoplifting. The prosecution did not recommend a sentence, leaving that issue to the judge's discretion. The judge imposed a 180 day jail term and a $l000 fine.
In a de novo hearing on defendant's municipal appeal, the Law Division judge found as fact that defendant called the police, and then "invited the [police] officer to search the car." Therefore, the search was valid, based on defendant's spontaneous invitation. The judge also found that, even without the fruits of the search, the State had proven its case beyond a reasonable doubt based on the "extremely credible" detailed testimony of the store security employee ...