April 11, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY DREW, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-01-0042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2012 -
Before Judges Sabatino and Ashrafi.
Defendant Anthony Drew appeals the trial court's denial of his motion to suppress the contents of a bag obtained by the police without a warrant from a car in which he was a passenger.
The car was searched with the oral consent of the driver, but not that of defendant.
The search and seizure occurred in connection with a motor vehicle stop in East Orange on August 8, 2008. The police dispatch in East Orange received a call that night reporting a dispute between a grandson and a grandfather. The dispute allegedly involved a weapon. The dispatcher passed on the information to an East Orange patrol officer, Crystal Powell.
Powell was the sole witness who testified at the suppression hearing. At the time of her testimony, Powell had been employed by the police department for fourteen years. She was working alone on the night of the incident.
According to Powell's testimony, she drove her squad car to the location of the reported disturbance. When she arrived, she was given a description of the grandson. The description identified him as a black male with long braids, wearing a white T-shirt and blue jean shorts.
As Powell pulled up, she observed a male matching the grandson's description "running out" of the location. She then saw him "jumping into a vehicle." Powell noticed that he was holding a bag, although she did not see a weapon.
Powell followed the vehicle and pulled it over about a block or a block-and-a-half away from the grandfather's residence. The vehicle had three occupants: a driver, a front-seat passenger, and a rear-seat passenger. Defendant was the passenger in the rear seat.
After back-up officers arrived, the police first removed defendant from the stopped car and secured him in the back of Powell's patrol car. The officers removed defendant first because of the report that he might be armed. The driver, Rory Thornton, and the front-seat passenger were also removed. Apparently, Thornton was placed in a patrol car different from the one in which defendant was placed.
According to Powell, while Thornton was being detained in the other patrol car, he gave one of the officers his "verbal consent"*fn1 for the police to search the interior of the car. Powell contended that Thornton also provided written consent to the search, although no copy of such written consent was produced by the State at the hearing, and Powell conceded that she never saw the alleged written consent. Powell did not identify the other officer who obtained Thornton's oral consent. She also admitted that she had not overheard the conversation between the other officer and Thornton in which Thornton supposedly gave oral consent to the search.
Based upon the driver's consent, the police went into the car without a warrant and recovered a bag containing a handgun, marijuana, and a scale. Defendant was then arrested.
Defendant was thereafter indicted and charged with fourth-degree unlawful possession of a controlled dangerous substance ("CDS") with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(12) (count one); third-degree unlawful possession of CDS with intent to distribute it in a school zone, N.J.S.A. 2C:35-5a and 2C:35-7 (count two); third-degree unlawful possession of CDS with intent to distribute it within five-hundred feet of a public housing facility, N.J.S.A. 2C:35-5a and 2C:35-7.1 (count three); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four).
Defendant moved to suppress the items recovered by the police from the stopped vehicle without a warrant. After considering the testimony of Officer Powell and the arguments of counsel at the suppression hearing, the trial judge denied the motion in an oral ruling.
The judge found that the police had probable cause to stop the vehicle and detain defendant. The judge also found that the police had obtained valid consent from the driver to search the inside of the vehicle. As part of his discussion of the consent issue, the judge agreed with the defense that the driver was not "free to leave" because he was in the back of a patrol car, but found no proof that the police had coerced the driver into giving his consent to search. The judge noted that there was "no indication [of a] conspiracy to commit a crime and [that] it's a getaway car." The judge also found "no reason  to believe that the driver  had any reason to do anything but cooperate with the police."
The judge declined to adopt the State's representation that the driver had given written consent to the search because no such documentation was provided to the court. However, the judge accepted Officer Powell's testimony, which was "uncontroverted," that the driver gave his oral consent to the search. The judge also found "no reason  to doubt" Powell's credibility.
After losing the suppression motion, defendant entered into a conditional guilty plea to counts two and four of the indictment, preserving his right to appeal the suppression ruling. The court sentenced him to concurrent prison terms of three years, with a one-year parole disqualifier.
On appeal, defendant argues that the trial court erred in denying his suppression motion. He does not contest the court's finding of probable cause, but focuses his challenge upon the driver's consent. He argues that the record does not show that Thornton knew that he had a right to refuse his consent, but instead reflects that the circumstances were unduly coercive. He further argues that the evidence clearly suggested that defendant was the exclusive owner of the seized bag and that it was unreasonable for the police to believe that Thornton had authority to consent to a search of the bag's contents. The State opposes these arguments, although its brief also suggests, in the alternative, that the case be remanded for further fact-finding pursuant to Rule 2:9-1(b), in light of what it concedes is a "somewhat thin" record.
Under the Fourth Amendment of the Federal Bill of Rights and Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981).
Here, the State argues that the lack of a warrant is excused because Thornton, the driver of the stopped vehicle, allegedly gave his consent to the search of the car's interior and the seizure of the bag. We disagree for several reasons.
First, the testimony developed by the State at the suppression hearing was inadequate to satisfy its burden of showing that Thornton's consent to the car search was truly voluntary. An "essential element" of such consent is the individual's "knowledge of the right to refuse [it]." State v. Johnson, 68 N.J. 349, 353-54 (1975). Whether spoken or written, such "assent  is meaningless unless the consenting party understood his or her right to refuse" to give it. State v. Suazo, 133 N.J. 315, 323 (1993); see also State v. Todd, 355 N.J. Super. 132, 139 (App. Div. 2002) (rejecting the State's contention that defendant had voluntarily consented to a search of his fanny pack because there was no evidence that he was informed that he had the right to withhold such consent).
The record here is bereft of the necessary proof that Thornton was made aware by the patrol officers that he had a right to refuse their request to search the car. As we have noted, the State's sole witness at the suppression hearing, Officer Powell, did not speak with Thornton herself. She had no personal knowledge of what he was told. See N.J.R.E. 602 (requiring fact witnesses to testify from their personal knowledge). Thornton was detained in the back of a patrol car, a place in which a person would be apt to regard an affirmative response to such a request from a police officer as compulsory.
Second, even if Thornton's consent to search the car interior was knowing and valid, the record is insufficient to show that Thornton was authorized to allow the ensuing search of the contents of the bag recovered from the car. A third party cannot lawfully consent to a search of a container unless he has common authority or an otherwise sufficient relationship to the container. Suazo, supra, 133 N.J. at 320; cf. United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed 2d 242, 249-50 (1974). Here, Powell had observed the bag in the possession of defendant, not Thornton, when he left his grandfather's house and got into Thornton's car. She had no reason to believe that anyone other than defendant owned the bag.
Third, defendant's silence at the scene cannot reasonably be considered to constitute consent to the search of the bag's contents. As the Supreme Court noted in Suazo, supra, 133 N.J. at 323, it is generally improper to equate a defendant's silence with a knowing waiver of the constitutional right to object to a search where a defendant is unaware of his right to refuse such consent. That is especially true in this case, where defendant had been placed in a separate patrol car and where there was no basis to infer that defendant could hear what the police were asking Thornton.
Fourth, although it is not essential to our analysis, we have substantial doubts about the trial judge's finding of probable cause to search the car. Officer Powell had observed only defendant leaving his grandfather's residence, after a report of a domestic disturbance between them. The probable cause of the commission of a crime was based solely upon information and observations concerning defendant, not information about the car or any other occupant. Even if probable cause to search the car were present, the trial court made no companion finding of exigent circumstances to justify such a warrantless invasion. See State v. Pena-Flores, 198 N.J. 6, 28 (2009) (requiring the State to prove, under the automobile exception to the warrant requirement, both probable cause and exigent circumstances).
These many shortcomings in the proofs compel the conclusion that the State failed to demonstrate the validity of the warrantless search of Thornton's car and defendant's bag. We reject the State's suggestion that we remand this case to allow it a chance to shore up its proofs beyond the testimony of Officer Powell. "A remand is inappropriate in order to afford the State the opportunity to provide proofs it should have provided in the initial [proceeding.]" State v. McLendon, 331 N.J. Super. 104, 108 (App. Div. 2000).
The order denying suppression is reversed, and the matter is remanded for further proceedings, including an opportunity for defendant to withdraw his guilty plea. We do not retain jurisdiction.