On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-01-0038.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011
Before Judges Payne and Simonelli.
Plaintiff State of New Jersey appeals from the July 15, 2010 Law Division order, which granted the motion of defendant Solomon N. Peters to suppress evidence. We affirm.
The following facts are derived from evidence presented at the hearing on the motion to suppress, which included two video and audio recordings made by the Bedminster Township Police Department. On December 18, 2007, defendant and his girlfriend, Jasmine Yearwood, were traveling in the Township of Bedminster when their 1995 BMW 325I became disabled in a snow bank. Police Officer Thomas Valente responded to defendant's 9-1-1 call for assistance. The officer arrived at the scene at approximately 9:17 p.m. and saw defendant leaning on the BMW's driver's side rear fender, and saw Yearwood sitting in the front passenger seat. Defendant asked the officer to call a tow truck to tow the vehicle out of the snow bank and bring it to Easton, Pennsylvania, where he and Yearwood were headed.
Upon questioning defendant and Yearwood, Officer Valente discovered that defendant had a suspended driver's license, Yearwood only had a learner's permit, and neither had any other form of identification, except that Yearwood had a bank card with her name on it. In addition, defendant and Yearwood each told the officer that the other was driving the BMW, they gave conflicting information about their travel plans, and Yearwood said that she owned the BMW even though it was registered to Andrew Peele.
In order to verify their identities, Officer Valente obtained defendant's and Yearwood's names, addresses, and dates of birth. By approximately 10:03 p.m., he confirmed defendant's identity. Although he also had obtained the BMW's registration and insurance cards by that time, he continued his investigation in order to ascertain the vehicle's actual owner.
Police Officer John Dapkins arrived at the scene at approximately 10:04 p.m. A dispatcher advised the officers that an initial check with the National Crime Information Center (NCIC) revealed there was a possible warrant for defendant from Maryland for aggravated assault with a weapon. At approximately 10:07 p.m., Officer Dapkins administered Miranda*fn1 rights to defendant, and advised him of the preliminary NCIC result. Defendant became somewhat evasive when confronted with this information. Officer Valente patted defendant down at approximately 10:09 p.m. At approximately 10:13 p.m., the officers received a preliminary confirmation of the warrant and handcuffed and searched defendant further. At approximately 10:16 p.m., defendant was placed into Officer Valente's patrol car. The warrant was confirmed at approximately 10:17 p.m. Sergeant Christopher Cummins arrived at the scene at approximately 10:17 p.m. When Officer Valente advised him that the BMW was registered, Sergeant Cummins responded that if [the BMW] is registered, we can't hold it. They, she can get a driver to come out here we're not gonna hold it. We'll take it back to our yard until she gets picked up by a driver. We got no hold on her. If you know she gives you the dance and can't say, I don't know whatever then let [the tow truck operator] just take it back to their yard.
At approximately 10:22 p.m., Officer Dapkins advised Yearwood that he wanted to search the BMW at the scene in order to see if he could find any other identification inside it. Yearwood consented to that search. When she advised Officer Dapkins that she had no one to drive the BMW, he responded that the police would tow it to police headquarters and give her a "courtesy ride" there. He also advised that Officer Valente would explain the consent to search form to her at police headquarters, the police would search the car "for contraband" and identification, and arrange for someone to pick up the vehicle and help her get a ride home.
Officer Dapkins transported Yearwood to police headquarters, and they arrived there at approximately 10:45 p.m. Yearwood was standing with Officer Valente in the cold weather outside of headquarters when she became upset, began questioning why they were detaining her and searching the BMW, and revoked her consent to search. Officer Valente replied that she had not produced identification, other than the bank card, and he had no information about who she was and who owned the BMW. Yearwood responded that all documents concerning the vehicle's ownership were in the glove compartment. Officer Valente then handed her the consent to search form. During the time that Officer Valente and Yearwood were conversing, Officer Dapkins was looking inside the BMW, and allegedly smelled marijuana.
Although Officer Dapkins advised Yearwood that she was not under arrest, could "walk out [of] here anytime you want[,]" and was "free to go[,]" he did not release her and continued pressing her for her consent to search the BMW. Yearwood continued to question her detention and the search of the vehicle, and refused to consent to the search. Officer Dapkins responded, "you want it for real? This is what it is for real okay? You want, you want to know why [we want to search the BMW]? I've explained it to you, I'm gonna explain it to you again. Third party car, very suspicious whether you own it or not." After Yearwood continued to question her detention and the search of the BMW, Officer Dapkins said, Listen, we're not gonna continue this all day okay? Here's what I need [an] answer from you right now.
Will you give us consent, yes or no? Okay, that's what I need an answer on right now. Will you give us consent to search that vehicle yes or no? Alright now that's what I'm asking. I don't want to hear anything else I'm not trying to be rude to you. I'm not trying to be argumentative with you or, or speak down to you or anything like that. I'm trying to get an answer on one topic alright?
Topic at hand please consent yes or no? Will you give us consent to search the vehicle and find the ...