December 14, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PAUL A. CARTER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment Nos. 09-10-0562 and 09-11-0593.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2012
Before Judges Nugent and Haas.
After his motion to suppress was denied, defendant Paul Carter pled guilty to second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, as charged in count siX of one Salem County indictment, and to third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5b(11), as charged in count one of a separate Salem County indictment. He was sentenced to five years in prison, with a three-year period of parole ineligibility, on the weapons charge and to a consecutive three-year term, with a one-year period of parole ineligibility, on the drug charge. Challenging the motion judge's denial of his motion to suppress, defendant appeals the judgments of conviction. We affirm.
At approximately 1:00 a.m. on May 31, 2009, Sergeant Charles Brown of the Penns Grove Police Department was patrolling in a marked police car in the area of the R&R Bar located on East Main Street. On-site parking for the bar was limited and patrons frequently parked in the parking lot of a boarded-up grocery store on Barber Avenue. The store was marked with two "no trespassing" signs, although the police did not usually ticket cars found in the lot. However, because the lot was "notorious" for "illegal activities" and violations of "borough ordinances," the police patrolled it "constantly" and did not permit individuals to "sit out there in their vehicles."
As Sergeant Brown was driving on Barber Avenue, he observed two men sitting in a parked truck in the rear of the parking lot. He stopped and exited his patrol car. As he did, the two men got out of the truck. Sergeant Brown asked them "to stop and return to their vehicle, and they complied." As he approached the truck, Sergeant Brown "instantly" detected the smell of "burnt marijuana."
The officer asked the driver of the truck, who was later identified as defendant, for his credentials and "he was asked who does the vehicle belong to." Defendant told the officer the truck did not belong to him*fn1 and he was unable to immediately produce his driver's license or other documents. Defendant began "reaching around in the vehicle" and, concerned for his safety and in order to prevent defendant from "tampering with anything that might have been in the vehicle," Sergeant Brown asked defendant to get out of the truck. Defendant complied and he was handcuffed and given his Miranda*fn2 warnings.
A second officer, Sergeant Stranahan, who had also been on patrol, joined Sergeant Brown on the scene. Sergeant Stranahan became involved in "an altercation with the passenger" of the truck, David Santiago, who ran away from the scene. Sergeant Stranahan ran after Santiago and Sergeant Brown placed defendant in his patrol car. Sergeant Brown then gave defendant a second set of Miranda warnings and asked him about Santiago. Defendant stated "he didn't know the guy, he just gave him a ride from Salem. He didn't know what was going on." Sergeant Brown told defendant about "the detection of the suspected marijuana" and defendant replied "he didn't know anything about marijuana or anything in the vehicle."
At this point, Sergeant Brown asked defendant "if he would give a consent to a search of the vehicle" and he agreed. Sergeant Brown found "two burnt roaches in the . . . open ashtray in the dash, a Dutch Master cigar, and there was a freezer bag in the console that contained 42 Zip Lock baggies" of marijuana. After the contraband was found, Sergeant Brown drove defendant to the station, where he was read his Miranda rights for a third time. Defendant told the officer "the marijuana was his, he had placed [it] in the vehicle earlier in the day, or the night before. He thought he had taken it out, and if he had remembered he hadn't taken it out he would have never gave his consent."
Defense counsel's cross-examination of Sergeant Brown was limited to the circumstances of his initial encounter with defendant and Santiago. He did not question the officer about defendant's consent to the search or, indeed, anything that occurred after the officer first approached the truck.
Sergeant Brown was the only witness at the suppression hearing. He had testified that his discussion with defendant in the patrol car was recorded on the vehicle's recording system, but the assistant prosecutor later discovered that the "audio" did not work. Therefore, a tape of the discussion was not available.
During oral argument on the motion, the judge asked the assistant
prosecutor whether, assuming Sergeant Brown had "a reasonable
suspicion there's a crime afoot[,] [d]oesn't the State also have to
establish that the person who gave the consent knew they had the right
to reject the consent, knew they had the right to stop the consent at
any time?" In response, the assistant prosecutor advised the judge
that, had she known the tape was not going to be available, she might
have asked the officer additional questions about the circumstances
surrounding defendant's consent to the search. However, she also
pointed out that defense counsel had "concede[d] that there was a
valid consent" to the search in the brief he submitted in support of
defendant's motion to suppress. Defense counsel did not object to this
representation and did not argue that defendant's
consent to the search had been involuntarily given.*fn3
Rather, defense counsel's sole argument to the court was that
"the officer did not have any reasonable suspicion to stop" defendant
and, therefore, the evidence seized during the subsequent search
should be suppressed.
The motion judge disagreed and, in an oral opinion, denied defendant's motion to suppress. The judge found that the initial encounter between Sergeant Brown and defendant was a permissible field inquiry, which turned into a permissible investigatory stop once the officer smelled burnt marijuana coming from defendant's truck. The judge found that Sergeant Brown had probable cause to ask for defendant's permission to search the vehicle and that defendant consented to the requested search. The judge specifically found that the "consent search is not contested here" and the officer "did not search the vehicle without getting the consent of" defendant.
On appeal, defendant raises the following arguments for our consideration:
THE STATE FAILED TO SATISFY ITS BURDEN OF PROVING THAT THE WARRANTLESS SEARCH OF DEFENDANT'S VEHICLE WAS JUSTIFIED BY EITHER THE SEARCH INCIDENT TO ARREST EXCEPTION OR THE AUTOMOBILE EXCEPTION. FURTHERMORE, DEFENDANT DID NOT GIVE HIS CONSENT VOLUNTARILY. THUS, THE EVIDENCE SHOULD HAVE BEEN SUPPRESSED.
A. Neither The Search Incident To Arrest Nor The Automobile Exception[s] To The Warrant Requirement Are Met Here Because Exigent Circumstances Did Not Exist And The Defendants Had Been Handcuffed And Secured Away From Their Vehicle At The Time Of The Warrantless Search.
B. Defendant's Consent To Search The Car Was Invalid Because It Was Not Given Voluntarily.
After reviewing the record, we are satisfied the motion judge properly denied the motion to suppress.
"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted) (internal quotation marks omitted). A motion judge's findings of fact may be disturbed only when "they are so clearly mistaken that the interests of justice demand intervention and correction." Id. at 244.
On appeal, defendant foregoes the only challenge to the search he offered to the motion judge and no longer argues that the initial stop of defendant was improper. Instead, defendant now contends that because defendant had been removed from the truck, the search was not justified as one conducted incident to his arrest, and there were no emergent circumstances that would permit the truck to be searched without a warrant. While the State does not concede either of these points on appeal, we do not need to address them here because defendant consented to the search and it was therefore constitutionally permissible on that basis.
When preceded by valid consent, a warrantless search of an automobile is permissible under the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution. State v. Carty, 170 N.J. 632, 638-39, modified on other grounds, 174 N.J. 351 (2002). An officer may ask a driver for permission to search a vehicle if the officer has a reasonable and articulable basis to suspect that the occupants have engaged in, or are about to engage in, criminal activity. Id. at 647. The State has the burden of showing that the consent was voluntary, which includes "knowledge of the right to refuse consent." State v. Johnson, 68 N.J. 349, 354 (1975). A defendant who has consented to a search also has the right to be present during the search and to limit or withdraw his consent once the search begins. State v. Hampton, 333 N.J. Super. 19, 30 (App. Div. 2000).
The motion judge properly found that these tests were met in this case. Sergeant Brown observed defendant and Santiago sitting in a truck that was parked in the back of a parking lot posted with no trespassing signs. As he approached the vehicle to conduct a field inquiry, he "instantly" smelled burnt marijuana coming from the truck. Defendant could not produce his driving credentials and told the officer the car "didn't belong to him." Once he began reaching around in the truck, defendant and Santiago were taken out of the car and Santiago immediately ran away. Those facts, as the motion judge correctly found, gave Sergeant Brown "a reasonable and articulable basis" to request defendant's consent to the search.
Defendant does not contest this finding on appeal. Rather he asserts for the first time that the State did not prove that his "consent was given voluntarily." Specifically, he argues he was never told he had the right to refuse to give his consent and he felt he was coerced into giving his consent because he was handcuffed in a police car at the time he spoke to Sergeant Brown. At the motion hearing, however, defendant conceded in his brief that his consent to the search was voluntary. He did not argue otherwise at the suppression hearing. Therefore, and based entirely upon defendant's own stipulation, the question of consent was not presented to the judge as a contested issue. Therefore, no detailed testimony was, or needed to be, elicited from Sergeant Brown concerning the officer's entire discussion with defendant that led to defendant's giving his consent to the search. Thus, there is simply no evidence in the record to support defendant's newly raised contention that the State did not meet its burden of proving that he voluntarily consented to the search.
Although under the plain error rule we will consider allegations of error not brought to the trial court's attention that have a clear capacity to produce an unjust result, See Rule 2:10-2; State v. Macon, 57 N.J. 325, 337-39 (1971), we generally decline to consider issues that were not presented at trial. Neider v. Royal Indem. Ins. Co. 62 N.J. 307, 327 (1973). This is especially the case where, as here, one of the parties specifically concedes a point, thereby completely eliminating the need for testimony concerning the conceded issue at a suppression hearing. State v. Cryan, 320 N.J. Super. 325, 332 (App. Div. 1990)(refusing to consider the argument raised by the State for the first time on appeal that a stop of a motor vehicle was justified because the police had a reasonable suspicion the driver was engaged in criminal activity, where the State did not raise this argument or elicit testimony concerning it at the suppression hearing and where it conceded at that time that its only argument supporting the stop was the community caretaking exception). As the Supreme Court recently explained:
Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves. Although "[o]ur rules do not perpetuate mere ritual[,]" we have insisted that in opposing the admission of evidence, a litigant "must make known his position to the end that the trial court may consciously rule upon it."
State v. Abbott, 36 N.J. 63, 76 (1961).
This is so because "[t]he important fact is that the trial court was alerted to the basic problem[.]" Id. at 68. In short, the points of divergence developed in the proceedings before a trial court define the metes and bounds of appellate review. [State v. Robinson, 200 N.J. 1, 19 (2009).]
As noted, defendant's present contention that his consent to the search was not voluntary was not a basis for his motion to suppress. Consequently, it was never ruled upon by the motion judge, who found that defendant had specifically conceded the point, and the record was not fully developed in this regard. We must, of course, consider the suppression motion solely on the record presented at the hearing before the motion judge. See State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999). That evidence, however, is not sufficiently complete to permit adjudication of the newly presented issue. We, therefore, decline to consider it.
There was sufficient credible evidence in the record to support the motion judge's conclusion that Sergeant Brown had a reasonable suspicion that defendant was engaged in criminal activity when he asked defendant to consent to a search of his truck. There was also ample evidence to support the judge's finding that defendant was not contesting that his consent was voluntarily given and that Sergeant Brown "did not search the vehicle without getting the consent of" defendant. We discern no basis to disturb these findings. State v. Locurto, 157 N.J. 463, 470-71 (1999).