On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-12-1112.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 27, 2010
Before Judges Axelrad and Lihotz.
On leave granted, the State appeals from the trial court's grant of defendant's suppression motion as to the items seized from his car and his subsequent incriminating statement to the police. The State argues the consent to search was executed voluntarily by defendant, and challenges several of the court's factual findings. We reverse.
We note the following salient facts adduced from the testimony and evidence presented at the suppression hearing during which only Detective James Diorio of the City of Elizabeth Police Department testified. Defendant, known to Detective Diorio as a convicted drug dealer with a suspended driver's license, caught the attention of the detective who was driving an unmarked car behind defendant at approximately 5:30 p.m. on August 4, 2009. Defendant stopped his minivan in the middle of the street in a "high narcotics area," a man walked up to his car, both of them looked furtively around, the man handed defendant a white plastic shopping bag with handles, and defendant handed him what appeared to be currency. Believing defendant picked up "a large quality of drugs," the detective radioed backup and followed defendant a short distance to his house. The officer parked down the block to hide his undercover car, and an unmarked police car containing four officers pulled behind and "blocked" defendant's minivan in his driveway, "to conduct a motor vehicle stop." Detective Diorio joined the officers. All five men were identifiable as officers, with badges around their necks and some wearing police-related clothing.
The detective testified he next observed defendant getting out of the driver's seat and walking towards the back of the car talking to Detective Malone. Detective Diorio heard defendant say he had "no problem" allowing the police to search his van. The detective gave a standard "Permission to Search" form to Detective Malone, who completed it, and defendant signed it at 5:35 p.m., thereby expressly authorizing the police to search his "complete motor vehicle" and acknowledging the permission was given "freely and voluntarily" after being informed he had the "right to refuse th[e] search and/or seizure." According to the detective, all weapons were holstered and no one threatened defendant physically or verbally into signing the form. Nor was defendant handcuffed until shortly after the search. The form was admitted into evidence.
The detective related that the search revealed a brown paper bag containing both seven empty vials and a CVS bag inside with a prescription bottle of Tussionex in the name of defendant's girlfriend and a pharmacy receipt.*fn1 Relying on his experience, Detective Diorio explained that Tussionex is a "controlled" cough medicine sold on the street in small bottles, which people ingest or mix with other drugs to get high.
The search also revealed a white shopping bag that was in "plain view" of the police, containing a pair of sneakers and located on the front passenger's floor. The testimony did not reveal whether the contents of the bag were visible to the police or which item was recovered first.
Defendant was arrested on drug charges and later charged additionally with motor vehicle offenses. Although not testified to, the record reflects that defendant confessed at headquarters.
Detective Diorio's report was used to refresh his recollection and was the subject of discrete questions. It was not admitted into evidence. Nor was any purported comment by defendant regarding the contents of the white bag the subject of any testimony or argument by counsel. However, both the prosecutor and defense counsel had referenced the following paragraph in their pre-hearing briefs and the police report had been appended to the State's brief. The report stated:
Det. Smith approached the drivers side of the vehicle and he identified himself as a police officer. He explained to [defendant] what I had had just observed and [defendant] claimed he had just purchased a pair of sneakers from a black man on Catherine St. for twenty dollars. Det. Malone asked him if he would give us permission to search his vehicle and he repeatedly stated, "sure, search all you want[;] I only have these sneakers." I approached the vehicle with the permission to search form and . . . [defendant] signed the form. . . .
The court granted defendant's motion to suppress. The court found as a fact the officers knew what was in the white bag before requesting defendant's consent to search, referencing the details of defendant's comment about the sneakers contained in the report. The court acknowledged the statement "wasn't testified to" but was in the prosecutor's papers. The court continued:
State v. Carty [170 N.J. 632 (2002)], cited by the defense . . . [holds] consent search[es] during a lawful motor vehicle stop are not valid unless there is reasonable and articulable suspicion to believe that the motorist ...