February 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
SOLOMON N. PETERS, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 illegal contraband in the car?
Yearwood still refused to consent to the search. Officer Dapkins then said, Okay and that's, and that's your right.
What we're gonna do is, we're gonna ah, ask you to stand by so we can verify who you are. And we're gonna call a k-9 out to take a sniff of the vehicle and indicate if there's drugs in there.
Officer Fittin from the South Bound Brook Police Department K-9 unit arrived at police headquarters at approximately 11:10 p.m. He and Officer Dapkins went to the BMW, saw "[s]ome type of pipe" on the front seat, and smelled raw marijuana. Officer Fittin advised Yearwood that he had detected the odor of burnt marijuana in the BMW and was going to search it. The police dog then sniffed the car and alerted to the presence of narcotics. Officer Dapkins administered Miranda rights to Yearwood, advised her she was not under arrest, advised her of the dog's "positive hit," and asked for her consent to search the BMW "to speed things up" and "move things along . . . ." Officer Fitten told Yearwood that they would impound the BMW and obtain a search warrant if she did not consent.
Yearwood finally signed a consent form at approximately 11:30 p.m. The police searched the BMW and found marijuana and drug paraphernalia in the trunk. Yearwood was handcuffed and escorted back into police headquarters, where defendant saw her in handcuffs.
When Officer Valente advised defendant that the marijuana found in the BMW weighed seven ounces, defendant responded that it was six ounces, not seven. After the officer advised defendant and Yearwood that they would be charged with possession of a controlled dangerous substance (CDS) and possession of CDS with intent to distribute, defendant said he would give a statement that the drugs were his and Yearwood knew nothing about them. Defendant received his Miranda rights a second time, and gave a videotaped and written statement at approximately 1:20 a.m. on December 19, 2007. The police did not confirm ownership of the BMW until December 19, 2007, and there is no evidence that they ever attempted to contact Andrew Peele.
A grand jury indicted defendant for third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11), and fourth-degree possession of CDS, N.J.S.A. 2C:35-10a(3). He was also charged with possession of drug paraphernalia, a disorderly persons offense, N.J.S.A. 2C:36-2.*fn2
Defendant filed a motion to suppress the marijuana and his statements, arguing that the search incident to an arrest exception did not apply, the consent to search was improperly obtained, and the police lacked a reasonable and articulable suspicion to justify their request for consent. The State countered that the search was lawful because Yearwood had consented.
Judge Reed issued an oral decision on July 15, 2010, which he memorialized in a written decision dated July 27, 2010. He found that the search incident to an arrest exception did not apply, and examined the motion in the context of the consent search exception to the warrant requirement. He held that Yearwood had apparent authority to consent to a search, and the police had reasonable and articulable suspicion that there was criminal activity to justify "the request" for consent to search based on the totality of facts known to the officers at the roadside scene, coupled with defendant's arrest on an outstanding warrant.
Judge Reed concluded, however, that Yearwood's consent to search was unreasonably obtained and invalid. Relying on State v. Dickey, 152 N.J. 468 (1998), the judge found that Yearwood's almost two-hour detention was unreasonable, especially because the police could have easily ascertained who owned the BMW, and ownership was alleged to be their primary reason to continue the investigation and detain Yearwood. He found that the video and audio recordings at police headquarters showed a relentless police dedication to obtain consent to search, long after the basis and ability to obtain a warrant became obvious.
Nowhere is that objective highlighted more than when Officer Dapkins tells Ms. Yearwood that "You can walk out of here any time you want" and "You're free to go" while admitting, however, that as far as he was concerned, she "was not free to go." Combined with the constitutional imperative to obtain a warrant, this search cannot stand.
The judge found there was ample evidence to suggest that the police placed Yearwood in fear and subjected her to humiliation, and her continued contact with the police at police headquarters "was not to accommodate her safe exit, but rather to keep her in place and subject her to the unrelenting pressure to secure her consent to search the vehicle." The judge also found that Yearwood "was a captive audience to the police" notwithstanding that she was not handcuffed or confined until after she arrived at police headquarters and the marijuana had been discovered. He concluded that "[t]he officers here could have readily obtained a search warrant and elected instead to unreasonably detain . . . Yearwood in an effort to gain consent."
Judge Reed also distinguished State v. Chapman, 332 N.J. Super. 452 (App. Div. 2000), finding that, unlike in Chapman, Yearwood's detention and questioning went on long after the police knew all they needed to know on the issue of ownership and operation [of the BMW], and long after they had probable cause to seek and obtain a warrant. Consent here was apparently viewed as a convenient excuse to avoid applying for a warrant.
The judge concluded that probable cause to obtain a search warrant existed in light of all of the facts and circumstances, "and the police should have applied for a search warrant, rather than engage in the [two] hour effort to gain consent as a substitute for a warrant."
In a supplemental letter decision dated August 31, 2010, submitted pursuant to Rule 2:5-1(b), Judge Reed added that there was no reason why the police failed to obtain a warrant once the car was secured at police headquarters, since it would remain there in light of the fact that neither defendant nor Yearwood could lawfully operate it.
On appeal, the State contends, in part, that Yearwood knowingly and voluntarily gave a post-Miranda consent to search the BMW. We have considered this contention in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Reed in his well-reasoned and thorough oral and written opinions. In addition, we make the following brief comments.
Officer Dapkins had looked into the BMW and smelled marijuana before the K-9 unit arrived at police headquarters, and the canine rendered a "positive sniff." At that point, he had probable cause to believe that the vehicle contained contraband. The contraband could not have been lost, compromised, or destroyed because the vehicle was in police custody and neither defendant nor Yearwood had access to it. Accordingly, the police should have obtained a search warrant instead of detaining Yearwood for an unreasonable length of time, and improperly pursuing her consent to search. See State v. Pena-Flores, 198 N.J. 6, 28 (2009). Affirmed.