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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...