September 19, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JINA M. SOULLIERE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 09-01-0122 and 09-11-2212.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011
Before Judges C.L. Miniman and LeWinn.
Monmouth County Indictment No. 09-11-2212 charged defendant with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); Indictment No. 09-11-0122 charged her, along with co- defendant Abdias Narcisse, with fourth-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b) (count two), and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count three). Defendant and Narcisse moved to suppress the weapons. Following the denial of that motion, defendant entered into a negotiated plea agreement whereby she pled guilty to an amended count three of Indictment No. 09-11-0122 charging fourth-degree conspiracy to possess a defaced firearm, N.J.S.A. 2C:5-2 and 2C:39-3(d); and an amended count under Indictment No. 09-11-2212 of third-degree conspiracy to possess cocaine, N.J.S.A. 2C:5-2 and 2C:35-10(a)(1). She was sentenced to concurrent two-year terms of probation. Defendant now appeals the denial of her motion to suppress.
We summarize the pertinent evidence adduced at the hearing on the motion to suppress. On June 28, 2008, Asbury Park Police Officer Lorenzo Pettway, a member of the department's Street Crimes Unit, was patrolling the area around the intersection of Emory and Summerfield Streets along with three other officers. The police had received information from a reliable confidential informant that a black male and white female, who lived at 515 Summerfield Street and owned a white vehicle, kept weapons and narcotics in the residence and the vehicle. The informant also named a third individual, Wilbert Mesidor, as a suspect; Pettway was "familiar" with Mesidor from a "[p]ast street encounter" and also "ha[d] him documented as a Blood street gang member."
As the officers' vehicle approached 515 Summerfield Street, Pettway observed a white Cadillac "parked on the sidewalk, on the west side of the property facing south." The vehicle pulled off the sidewalk and turned east onto Summerfield Street. Pettway informed one of the other officers, Carrasquillo, that they "were going to effect a traffic stop" of the Cadillac for parking on the sidewalk; Pettway also observed that the vehicle's center brake light was out.
After stopping the vehicle, the officers approached; Pettway went to the driver's side and Carrasquillo to the passenger side. Narcisse was in the front passenger seat and "appeared to be moving around . . . fidgeting around in his seat." Another passenger, Rubin Siede, was seated in the rear.
Pettway asked the driver, Hummler Etienne, for "the paperwork for the car." Etienne reached across Narcisse and opened the glove compartment; at that point Pettway observed "what appeared to be suspected marijuana" in the compartment. Pettway thereupon advised the other officers to place all occupants of the vehicle under arrest. Carrasquillo asked Narcisse to step out of the vehicle and placed him under arrest; a pat-down search incident to the arrest revealed a handgun in Narcisse's front pants pocket.
At this point, defendant approached and asked what the police were "doing with her vehicle." She also asked why Narcisse, to whom she referred as her "boyfriend," had been arrested. She told Pettway that she lived at 515 Summerfield Street in an upstairs apartment.
While talking to defendant, Pettway observed Mesidor leaving the premises of 515 Summerfield Street. The officer suspected that Mesidor "may have been keeping weapons inside the upstairs apartment," but he did not detain him at that time. He testified that his "focus" was on defendant and he was "concerned with her about weapons being in the apartment."
Pettway advised defendant of the information he had received from the confidential informant and asked if she would consent to his searching her apartment. "Initially she said no." Pettway "continued to talk to her . . . and explained . . . why [he] wanted to search her residence . . . . [He] explained to her that [he] had information that there may be weapons . . . also . . . drugs inside her residence."
Defendant asked Pettway what would happen if there were drugs and weapons in her apartment. The officer "explained to her that . . . as long as she [was] 100 percent cooperative, . . . [he] would indicate that in [his] report. That she cooperated with [the police]." He denied promising her that she would not be charged with any offenses.
During this time Pettway was also communicating with his supervisor about whether the officers had sufficient evidence to obtain a search warrant. He advised defendant of this. Pettway testified that he never told defendant she could not leave while he was speaking with her.
After further discussion with Pettway, defendant consented to the search. She signed a consent to search form; Pettway went through each line with her and she initialed each of her responses. Defendant insisted on being present in the apartment during the search. After defendant executed the consent to search form, Pettway advised her of her Miranda*fn1 rights.
Pettway searched defendant's apartment along with Officer Sosa. In the master bedroom, where defendant "indicated" that she and Narcisse "resided," the officers found a sawed-off shotgun in the closet; inside an open safe, they also found ammunition and a defaced Smith and Wesson semiautomatic firearm that was "loaded with a magazine with five rounds of ammunition in it."
Officer Gabriel Carrasquillo testified and described arresting Narcisse, searching him and finding the handgun in his pants pocket. Carrasquillo did not participate in the search of defendant's apartment.
Narcisse testified. He denied living at 515 Summerfield Street in June 2008. He also denied owning any weapons or storing weapons in defendant's apartment. He acknowledged that the police found a gun in his pants pocket. He testified that defendant had asked him to remove that weapon from her apartment. However, Narcisse later stated that "[w]hen [he] was in the car [the gun] was in the seat so [he] put it in [his] pocket[,]" and that was "the first time [he] ever saw that handgun[.]"
The judge rendered a decision from the bench. With respect to the search of the apartment, the judge reviewed the evidence and concluded:
A field inquiry is permissible so long as the questions are not harassing, overbearing or accusatory in nature.
Here I have to make a determination whether the field inquiry involving [defendant] became a [Terry]*fn2 stop, and if so whether . . . Pettway had reasonable suspicion to conduct such a stop.
State and defense counsel . . . seemed to be in agreement that [defendant] approached . . . Pettway to find out why her boyfriend had been arrested and when she could get her car back. They also agree that Pettway informed [defendant] that he had received information that there were weapons inside her apartment and he asked her for consent to search.
Regardless of whether she felt free to leave at that moment, I find that Pettway's words by themselves turned the consensual encounter between the two of them into a [Terry] stop.
I find that the detention of [defendant] was based upon reasonable suspicion. I find that it was reasonable for Pettway to suspect that [defendant] might have something to do with the criminal activity in the Cadillac. It was her car. She owned it. . . . [S]he approached Pettway and told him that the car belonged to her.
Further, after [defendant] told Pettway that she lived with her boyfriend Narcisse at 515 Summerfield, I find further it was reasonable for Pettway to become suspicious of her potential involvement and suspected criminal activity going on at the address. At that point the information received from the confidential informant was already partially corroborated merely based upon the fact that three of the individuals named by the [informant] had been found to be in possession of drugs and a handgun in a car that match[ed] the . . . description given by the [informant], and parked in front of the address which the [informant] said was . . . being used to store guns.
I find that Pettway had reasonable suspicion to detain [defendant], so that issue as to the [Terry] stop I find in favor of the State.
The next is the consent to search 515. Consent to search is a well recognized exception to the warrant requirement. . . .
[Defendant] alleges that when she had first refused to grant Pettway consent to search . . . her home, he told her that she would not be reentering the apartment while a search warrant was being maintained [sic]. She said that Pettway told her that if she was cooperative he would help her get her car back. And if the guns were found, she would not be charged. She says that based upon these promises she executed the consent to search.*fn3
Pettway says that he told her that she would be charged if guns were found, that her car was being seized for forfeiture, and if she was cooperative it would be noted in his report.
I find Pettway's version to be credible. . . . I find that [defendant] heard what she wanted to hear. But I find it completely unbelievable that the officer was going to tell her that she would not be charged if illegal firearms were found inside the home.
At this point Pettway has got information that there was a quantity of drugs . . . and weapons being held . . . inside the home. . . .
I find that [defendant] voluntarily consented to the search of her apartment . . . . I find that after the consent to search was executed the officers did their searching.
On appeal, defendant presents the following contention for our consideration:
THE TRIAL COURT ERRED IN RULING THAT SOULLIERE VOLUNTARILY CONSENTED TO THE WARRANTLESS SEARCH OF HER RESIDENCE AND, THEREFORE, PROPERTY SEIZED DURING THE SEARCH SHOULD HAVE BEEN SUPPRESSED AS A MATTER OF LAW
Having considered this contention in light of the record and the controlling legal principles, we conclude that it lacks "sufficient merit to warrant discussion in a written opinion . . . . R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Ira E. Kreizman in his thorough and analytical decision rendered from the bench. We add only the following brief comments.
Defendant's reliance on State v. Hladun, 234 N.J. Super. 518 (Law Div. 1989), for the proposition that a "threat to make application for a search warrant should weigh against a finding of voluntariness[,]" id. at 522, is misplaced. The record here demonstrates that Pettway was in the process of discussing with his supervisor whether he had a sufficient basis to obtain a search warrant and he so informed defendant. There is no evidence that Pettway, believing that "probable cause d[id] not exist," ibid., threatened defendant with a search warrant. Even assuming defendant believed she "would be detained while [the police] obtained a search warrant[,]" State v. Cancel, 256 N.J. Super. 430, 434 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993), any comment to that effect by Pettway "was a fair prediction of events that would follow, not a deceptive threat made to deprive her of the ability to make an informed consent." Ibid.
In general, consent searches will be upheld where the State demonstrates "knowledge on the part of the person involved that [s]he had a choice in the matter." State v. Johnson, 68 N.J. 349, 354 (1975). "The right of self-decision is effectively safeguarded if the occupant of the premises knows that the search may be refused. This knowledge may be imputed from information furnished by the police." Id. at 355 (Schreiber, J., concurring).
We are satisfied that the record supports the trial judge's findings upholding defendant's consent to the search of her residence; defendant freely and voluntarily exercised her "right of self-decision[.]" Ibid.