April 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DUANE CRAWFORD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-03-0786.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 8, 2011
Before Judges Wefing and Koblitz.
Defendant Duane Crawford appeals the denial of his pre-trial motion to suppress evidence. After a jury trial on Essex County Indictment No. 08-03-0786, he was convicted of third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10 (count one) and acquitted of second- degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5 (count two), and third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three). On October 6, 2009, defendant was sentenced to a seven-year term of imprisonment with forty-two months of parole ineligibility and the mandatory penalties.*fn1
We find that the purported consent search of defendant's bedroom was improper, but did not affect the outcome of the trial. We find the search of a blue plastic bag in defendant's car was valid for reasons different than those expressed by the trial court and affirm.
Detective Brian Martzutsky of the Essex County Sheriff's Office was the only witness to testify at the suppression hearing. At the time, Martzutsky had worked for the sheriff's office for approximately eighteen years and in the narcotics bureau for a little more than nine years, having received special narcotics training. He testified to the following facts. On October 30, 2007, an informant, who he characterized as a "confidential reliable source" and who had provided him with information that sometimes led to arrests in the past, told him that "Duane," a five-foot-eight or five-foot-nine, "heavy set, [and] light-skinned" black man, would be driving a silver Chrysler Concord with Pennsylvania license plates in the numbered streets around Madison Avenue in Newark to deliver a large quantity of heroin at approximately 3:00 p.m. that day. The informant also told the police that Duane might have a handgun.
The police set up surveillance on Madison Avenue and Fourteenth Street, and at approximately 2:45 p.m., they stopped a silver Chrysler Concord at a red light as it was heading west on Madison Avenue. Defendant was driving the Concord, and his brother was the passenger. As the police approached the Concord, "it looked like [the driver, later identified as defendant,] was reaching for something or moving something in the center console area." Martzutsky testified that based on these movements, he thought that defendant was "trying to destroy something or possibly reach for a weapon." The police ordered defendant and his brother out of the car, and when looking through the open door, they noticed a blue plastic bag on the center console.
Martzutsky testified that the officers were looking for a gun in the car. The contents of the bag were not visible from outside of the car, but once the officers stuck their heads in the vehicle and looked inside the bag, they were able to see the "brick" wrappers. A "brick" contains fifty "decks," or envelopes, of heroin. The police found twenty-five "bricks" of heroin inside the blue plastic bag. Thus, 1250 envelopes of heroin were found in the blue bag. Defendant insisted that the narcotics belonged to him alone, and that his brother did not have any knowledge of what was in the blue bag. The police impounded the Concord and took defendant and his brother to their house, where they both lived with their mother.
Martzutsky testified that both defendant and his brother consented to searches of their bedrooms and that consent forms were signed by both individuals. On cross-examination, however, Martzutsky admitted that the one consent form marked for identification was signed only by defendant's brother. He testified that defendant's mother was present, but not that she consented to the search of the two bedrooms. The officers found $5415 in U.S. currency in defendant's room and more than $1000 in his brother's room. They did not recover any contraband in the bedrooms.
The trial court denied defendant's application to suppress the drugs found in his car and the money found in his bedroom. The court determined that defendant's brother and mother consented to the search of defendant's bedroom and that the heroin seized from defendant's vehicle was admissible under the plain view exception to the warrant requirement.
Defendant raises the following issues:
STANDARD OF REVIEW POINT II
THE COURT'S FINDING THAT DEFENDANT'S BROTHER HAD THE AUTHORITY TO CONSENT TO THE SEARCH OF DEFENDANT'S BEDROOM WAS ERRONEOUS.
THE SEARCH OF DEFENDANT'S VEHICLE WAS UNLAWFUL.
THE WARRANTLESS SEARCH AND SEIZURE OF DEFENDANT'S AUTOMOBILE WAS IMPROPER.
In Point II of his brief, defendant argues that the search of defendant's bedroom was unconstitutional because defendant's mother did not consent to the search and defendant's brother, who did sign a consent form but lived in a separate bedroom in the home, did not have the authority to consent. We agree with this argument.
We recognize our limited role in reviewing facts found by the trial court. "[A]n appellate court reviewing a motion to suppress 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. Robinson, 200 N.J. 1, 15 (2009) (internal quotation marks and citation omitted). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).
The trial court found that defendant's mother consented to the search of defendant's bedroom, although no testimony to that effect was presented by Martzutsky. Martzutsky testified only that defendant's mother was present at the search. Thus, we do not find evidence in the record to support this finding. Unquestionably, defendant's brother signed a consent form to search the bedrooms. Defendant's brother, however, did not have the apparent authority to consent to a search of defendant's bedroom.
"'[A] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" State v. Ugrovics, 410 N.J. Super. 482, 487-88 (App. Div. 2009) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
"A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search of a home," State v. Domicz, 188 N.J. 285, 305 (2006), and it constitutes a "legitimate aspect of effective police activity." Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854, 863 (1973). The State must demonstrate by a preponderance of the evidence that the consent exception to the warrant requirement applies. See State v. Wilson, 178 N.J. 7, 13 (2003); State v. Koedatich, 112 N.J. 225, 262 (1998). Consent is a factual question to be determined from the relevant circumstances. Koedatich, supra, 112 N.J. at 264; State v. Pante, 325 N.J. Super. 336, 349 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000).
The State must show "that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent." State v. Johnson, 68 N.J. 349, 353-54, (1975). The State must prove that a person was aware of this right. Id. at 354; see also State v. Todd, 355 N.J. Super. 132, 139 (App. Div. 2002). Completing a written consent form meets the State's burden. State v. White, 305 N.J. Super. 322, 332-33 (App. Div. 1997). It also negates the argument of coercion. State v. Binns, 222 N.J. Super. 583, 589-90 (App. Div.), certif. denied, 111 N.J. 624 (1988).
Moreover, "[c]onsent may be obtained from the person whose property is to be searched, from a third party who possesses common authority over the property, or from a third party whom the police reasonably believe has authority to consent." State v. Maristany, 133 N.J. 299, 305 (1993) (citations omitted). "It is 'appearances of control' at the time of the search, 'not any subsequent resolution of questions of title or property rights,' that must be used to assess the validity of the officer's search." State v. Farmer, 366 N.J. Super. 307, 313-14 (App. Div.) (citing State v. Santana, 215 N.J. Super. 63, 71 (App. Div. 1987)), certif. denied, 180 N.J. 456 (2004).
The officers knew that defendant and his brother had separate bedrooms in their mother's home. It was not reasonable for them to believe that defendant's brother could consent to a search of defendant's bedroom. In State v. Crumb, 307 N.J. Super. 204, 243-46 (App. Div. 1997), we found that the police could have reasonably believed that a mother who lived with her son in a trailer had consent to search his bedroom. In that case, the son's bedroom door was unhinged, the mother had recent access to the room, another relative used the room for storage, and the mother was co-owner of the trailer. Id. at 245. Here, the State did not present any evidence that defendant's brother or anyone else had regular access to defendant's bedroom or that the door was not in good repair. See Pante, supra, 325 N.J. Super. at 350-51 (where the mother who owned the house in which her son lived and who retained a key to his bedroom had apparent authority to consent to a search of that room).
Martzutsky indicated that the police obtained two consent forms, one from each brother. He could only produce the form signed by defendant's brother. The trial court did not specifically make a finding regarding Martzutsky's testimony that defendant had executed a consent form that was misplaced by the State. Instead, the court incorrectly found that the police reasonably believed that defendant's brother had authority to consent to the search of defendant's bedroom. Martzutsky testified that the police sought consent from defendant to search his bedroom, not that the police thought defendant's brother's consent was sufficient. Thus, the search of defendant's bedroom was improper absent a specific finding of consent from defendant or his mother.
In its summation, the State concluded, "we know that defendant kept a large quantity of money in his bedroom drawer -- $5,415, separate from a large quantity of his drugs, 1,250 envelopes [found in the blue bag in the car]." The money found in defendant's bedroom was only relevant to prove that defendant intended to distribute the heroin. "A defendant is entitled to a fair trial but not a perfect one." State v. Feaster, 156 N.J. 1, 84 (1998) (citations omitted). An error during a criminal trial will only result in reversal of the defendant's conviction if the error was of such magnitude as to raise a reasonable doubt as to whether it led the jury to a decision it would not have reached otherwise. State v. Taffaro, 195 N.J. 442, 454 (2008). The admission of the evidence of money found in his bedroom was harmless error beyond a reasonable doubt given that defendant was convicted only of possession and not possession with intent to distribute. R. 2:10-1.
In Points III and IV of his brief, defendant argues that the stop of his car and search of the blue plastic bag on the console violated his constitutional rights. He argues that the informant's tip was an insufficient basis to stop the car and search the bag.
"'A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed.'" State v. Amelio, 197 N.J. 207, 211 (2008) (quoting State v. Carty, 170 N.J. 632, 639-40, modified by, 174 N.J. 351 (2002)); see also State v. Rodriguez, 172 N.J. 117, 126-27 (2002). To determine whether the State has demonstrated sufficient grounds for a valid investigatory stop, the court must consider "the totality of the circumstances" surrounding the encounter. State v. Elders, 192 N.J. 224, 247 (2007). "In some circumstances an informant's tip may assist the court in evaluating whether the police officer had reasonable suspicion to stop a person." Amelio, supra, 197 N.J. at 212. "The anonymous informant's 'veracity,' 'reliability' and 'basis of knowledge' are 'relevant in determining the value of his report.'" Ibid.
The reliability of a known police informant is judged by any indicia of the informant's veracity and an analysis of the basis of the informant's knowledge. See State v. Keyes, 184 N.J. 541, 555-56 (2005). "An informant's veracity and basis of knowledge are two highly relevant factors" in determining probable cause or reasonable suspicion. State v. Zutic, 155 N.J. 103, 110-11 (1998). A deficiency in the informant's veracity may be overcome by a strong showing of the informant's basis of knowledge. Ibid. Veracity may be proven by the confidential informant's reliability in the past. Ibid. An informant's basis of knowledge may be inferred from the level of detail and the amount of hard-to-know information disclosed in the tip. Ibid.
Law enforcement may establish reasonable suspicion or probable cause based on a tip from an informant whose "inherent reliability has not been shown," if the officers' observations corroborate the information furnished by the informant. State v. Zapata, 297 N.J. Super. 160, 172-73 (App. Div. 1997) ("[A]n anonymous call may provide the factual predicate necessary to justify an investigatory stop when there is corroboration of the information furnished."), certif. denied, 156 N.J. 405 (1998). If a known informant's basis of knowledge is deficient, a higher degree of police corroboration will be required to establish reasonable suspicion or probable cause. Zutic, supra, 155 N.J. at 111-12.
Here, the confidential informant had provided the police with reliable information at times in the past. The veracity of the informant is established by his past reliability, and his detailed description of the car, defendant and the time and location where defendant would be delivering the drugs was corroborated by the officers' observations.
Although the trial court found that the drugs were found "in plain view," exposed in the open blue plastic bag on the console, we note that the undisputed testimony from Martzutsky disclosed that the police had to look inside the untied blue bag to find the bricks of heroin. Martzutsky said, "once you stuck your head in the vehicle and looked inside the bag which was opened you could see the brick wrappers." He previously described the bag as "untied and . . . laying on the console." The bag was in plain view, but the bag was not in itself evidence of criminal activity. The heroin was not in plain view; however, the police were justified in searching the bag to look for the gun the informant had warned them about.
Police may conduct a frisk of an individual or a protective search of a vehicle if "a reasonably prudent person would be warranted in the belief that his or her safety or that of others was in danger." State v. Lund, 119 N.J. 35, 45 (1990) (citing State v. Thomas, 110 N.J. 673, 685 (1988)). Law enforcement must set forth "a particularized basis for an objectively reasonable belief that the defendant was armed and dangerous." Lund, supra, 119 N.J. at 47 (citing Thomas, supra, 110 N.J. at 685.)
"In some instances the right to conduct a protective search flows directly from the basis for the investigatory stop." Lund, supra, 119 N.J. at 45. "Nervousness and furtive gestures may, in conjunction with other objective facts, justify a Terry search, but ordinarily mere furtive gestures of an occupant of an automobile do not give rise to an articulable suspicion suggesting criminal activity." Id. at 47 (internal quotation marks and citation omitted). "Obviously there are some cases in which 'furtive' movements or gestures by a motorist, accompanied by other circumstances will ripen into a reasonable suspicion that the person may be armed and dangerous or probable cause to believe the person possesses contraband." Id. at 48 (citation omitted).
In State v. Jones, 287 N.J. Super. 478, 496-97 (App. Div. 1996), we found that a warrantless search of an automobile and canister was justified by the police officer's reasonable belief that a weapon or contraband was in the vehicle. We found that probable cause was established by furtive gestures of the defendant, a canister observed at his feet in the car, which corroborated an attempt to conceal or retrieve a weapon, defendant's denial of knowledge of the existence of the canister, defendant's physical appearance suggesting narcotic use, and defendant's misstatements about his route of travel. Id. at 497.
In Thomas, supra, the Court found that information that an individual would be in possession of illegal drugs justified an investigatory stop, but did not justify a protective search of the individual's vehicle because there was no indication that he was armed. 110 N.J. at 685.
Based on the informant's tip that defendant may be in the possession of a weapon and defendant's furtive movements toward the center console of the car after being stopped by the police, the police had reasonable suspicion to believe that defendant was armed. Once the police saw the blue plastic bag on the center console, where defendant was reaching after being pulled over, their belief that defendant was attempting to conceal something that might be a weapon was corroborated. Additionally, because neither defendant nor his brother were under arrest at the time the blue plastic bag was searched, the police were justified in looking into the bag before allowing the occupants back into the car to protect the safety of both the officers and the public.