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State of New Jersey v. Mohamed A. Aly

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 2, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MOHAMED A. ALY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-01-00040.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 26, 2011

Before Judges Graves and Yannotti.

After the trial court denied his motion to suppress evidence, defendant pled guilty to second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) or (2). The trial court thereafter sentenced defendant as a third-degree offender and imposed a three-year term of incarceration. Defendant appeals from the judgment of conviction entered by the trial court on July 9, 2010. We affirm.

The following facts are drawn from the testimony given at the suppression hearing, which was held on January 6, 2010. Detective Christopher Wright (Wright) of the New Jersey State Police testified that on October 24, 2009, he was at the Grover Cleveland rest area on the New Jersey Turnpike with his partner, Detective Sergeant Mark Primerano (Primerano).

Wright and Primerano were in an unmarked vehicle and wearing plain clothes. They were undertaking surveillance of the parking lot for commercial vehicles. Wright observed a green Nissan Maxima with New Jersey license plates driving up and down the lanes of the lot. Wright determined that Al Aly (Aly) was the registered owner of the car.

Wright said that a man, later identified as Leonard Trujillo (Trujillo), entered the vehicle, which was then driven back to the truck lot and pulled behind a tractor-trailer with Florida license plates. Trujillo exited the car. He was in possession of a bag, which he did not possess when he got into the car. Wright testified that, based on his experience and his assignment, narcotics transactions commonly take place in the Turnpike rest area.

Trujillo went to the driver's side door of the tractor-trailer and the Maxima drove away from the area. Wright and Primerano approached Trujillo and asked him about the bag. He said that a friend had given him the bag to bring to another friend in Miami. Trujillo told the officers that there was no contraband in the bag. They asked him to open the bag. Wright told Trujillo that he did not have to open the bag. Trujillo opened the bag, which was found to contain $56,000 in cash.

Trujillo insisted that he did not know that anything was in the bag. Trujillo also said that he did not know where the money was from. However, Trujillo admitted that, in the past, he had transported several similar bags to Miami and he had been paid to do so. The officers arrested Trujillo.

Wright called the Woodbridge Police Department and the Office of the Middlesex County Prosecutor. He provided them with Aly's home address. Trujillo was transported from the scene. Wright and Primerano went to the Aly's home in Fords, New Jersey. They arrived around 12:00 nooon. Wright and Primerano went to the front door of the residence, while officers from the assisting law enforcement agencies "secured the outside." Wright said that, initially, there were about eight officers at the scene but more officers arrived over time.

Aly answered the door. He was arrested. He was upset and asked to be removed from the scene. Aly consented to the search of his automobile. No evidence of any wrongdoing was found. Wright and Primerano then "secured the house." Defendant is Aly's brother. He was found in the house, along with another brother, Aly's wife, Aly's daughter and mother, Fatma Safar (Safar). Wright determined that Safar owned the residence. Wright and Primerano explained to her that Aly had been arrested and they had reason to believe that there may be evidence of criminal activity in the house.

Wright testified that he thought that, because a large sum of currency had been dropped off at the rest area, there may be additional currency or possibly narcotics in the residence. Wright testified that Safar was "obviously upset." The officers asked for her consent to search the residence, and they presented her with a consent-to-search form. Wright read the form to Safar, explaining what they were looking for. Safar signed the form. Wright and Primerano then initiated the search.

Defendant came out of his room and went downstairs with the other occupants of the house. At around 3:00 p.m., Wright and Primerano asked defendant to sign the consent-to-search form.

Wright said that they explained defendant's rights to him. Defendant signed the form. The officers searched defendant's room and found a bag of cocaine and some currency in the closet.

The trial court placed its decision on the record on January 7, 2010. The court found that, based on the location as well as their training and expertise, the officers had reasonable suspicion that some criminal activity was taking place at the Turnpike rest stop, which warranted a field inquiry of Trujillo.

The court found that Trujillo agreed to cooperate with the officers to demonstrate his innocence of any wrongdoing. According to the court, Trujillo "voluntarily [and] knowingly opened the bag." The court determined that the seizure of the $56,000 from Trujillo was lawful. The court also determined that, based on the officers' observations, the information provided by Trujillo as well as the $56,000 recovered from the bag, the police then had probable cause to arrest Trujillo.

The court then addressed the validity of the search of the Aly home. The court said that the officers had probable cause to arrest Aly and, having done so, it was not "unreasonable for the officers to want to search [Aly's] home . . . to see if there was any additional contraband" there. The court stated that the officers "were in the equivalent of fresh pursuit" and, while the officers could have obtained a search warrant, there was "nothing unreasonable about" asking the occupants of the house to consent to a search.

The court also stated that the family members who testified at the suppression hearing did not witness defendant's execution of the consent-to-search form. The court noted that there was no testimony that directly contradicted Wright's testimony that he told defendant he had a right to refuse to consent to the search. The court found that defendant was not under arrest when the officers asked for his consent and searched his room.

The court pointed out that defendant consented to the search about an hour or two after the police arrived at the house and, at that time, he was outside of the house. The court noted that defendant was not told that he could not leave the premises. The court stated that defendant was present when the police searched the house and other occupants of the house signed documents consenting to the search. The court found that there was no evidence that defendant was coerced into signing the consent-to-search form.

The court additionally found that, even if it accepted the testimony of the family members that they did not understand what they were doing when they signed the consent forms, their testimony did not specifically address the legality of defendant's consent to the search of his room, although it could be considered "as part of the totality of circumstances" in deciding whether defendant's consent had been knowingly and voluntarily given. The court added that consent may be a valid exception to the search warrant requirement as long as a defendant knowingly and voluntarily and intelligently gives consent. I have testimony from a State Police Officer, who I find to be largely credible, that indicates that he advised [defendant] of the right to refuse; that [defendant] reviewed the form and signed it. He was not handcuffed at the time. He was not under arrest at the time.

There were no threats or coercion that anyone has indicted in the hearing before the Court with respect to [defendant]. . . [N]o family member even indicated that [he or she was] present when this consent was given. It . . . appears that [the consent] was given after everyone was allowed to leave the home and wait outside.

And the testimony of these various individuals, again, was somewhat confused.

And I don't believe that there's anything that was provided to the Court that would otherwise repudiate the testimony of Detective Wright.

The court entered an order dated January 14, 2010, denying defendant's motion to suppress. Thereafter, defendant pled guilty to second-degree possession of CDS and was sentenced to three years of incarceration. This appeal followed.

Defendant raises the following arguments for our consideration:

I. The Motion to Suppress should have been granted, because the searches of Defendant's home and bedroom violated the Fourth Amendment to the United States Constitution, and Article I, ¶ 7 of the New Jersey Constitution.

A. The warrantless arrest of Co-Defendant Al Aly was unlawful, rendering the ensuing search of the home unlawful as well.

B. The continued entry into the home after the arrest, solely for the purpose of obtaining consent to search, without probable cause or exigent circumstances.

C. The inherently coercive circumstances of having dozens of state and federal agents swarming the home, while his family was rounded up, rendered Defendant['s] "consent" to the search of his bedroom involuntary.

We are satisfied from our review of the record that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following comments.

When an appellate court reviews a decision on a motion to suppress, the court is required to uphold the trial court's findings of fact so long as they are supported by "'sufficient credible evidence in the record.'" State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We must give deference to the trial court's findings that "'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 471 (quoting Johnson, supra, 42 N.J. at 161).

Here, the trial court found that Wright's testimony was more persuasive than that of the family members, "who in many ways had inconsistencies in their testimony" and were "understandably . . . under a great deal of stress" at the time of the search. Based on Wright's testimony, the court determined that defendant's consent to search his room was voluntary and not the product of any inherently coercive situation. We are satisfied that there is sufficient credible evidence in the record to support the court's findings.

Defendant argues, however, that the officers did not have probable cause to arrest Aly. We disagree. "For probable cause to arrest, there must be probable cause to believe that a crime has been committed and 'that the person sought to be arrested committed the offense.'" State v. Chippero, 201 N.J. 14, 28 (2009) (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)). Probable cause to arrest arises when a law enforcement officer has reasonable grounds to believe that the person to be arrested committed an offense. Id. at 28 (citing 2 Wayne R. LaFave, Search & Seizure, § 3.1(b) (4th ed. 2004)).

Here, the trial court found that the officers had probable cause to arrest Aly because they had observed what they reasonably believed to be a narcotics or money laundering transaction between Aly and Trujillo at the Turnpike rest stop. As stated previously, the officers saw Trujillo enter Aly's automobile and emerge with a bag, which contained a large sum of currency. The transfer of the bag occurred in an area that is known for narcotics transactions. Trujillo informed the officers that he intended to transfer the bag to Miami and that he had made similar transfers in the past.

Defendant further argues that the officers' entry into defendant's home was unlawful. Again, we disagree. The record established that the officers had reasonable cause to believe that additional contraband might be found in Aly's home. The court also credited Wright's testimony, which established that the initial entry into the home was not for a search but, rather, for the purpose of securing the location and determining who was present.

Next, defendant argues that the search of his room violated his rights under the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. We do not agree. "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) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973)).

Under our State Constitution, there are "heightened requirements to ensure that the waiver of the right to consent to refuse a consent search [has been] voluntarily and knowingly exercised." Id. at 307. The State has the burden of showing that the consent was voluntary, which includes "knowledge of the right to refuse consent." Ibid. (citing State v. Johnson, 68 N.J. 349, 353-54 (1975)). Here, the record fully supports the trial court's determination that defendant was told he had the right to refuse consent and the court's finding that defendant consented to the search of his room knowingly and voluntarily.

Affirmed.

20110802

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