June 25, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
GEORGE MENON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2013.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-05-0237.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
Before Judges Reisner and Hoffman.
Defendant George Menon appeals from his conviction for fourth-degree possession of over fifty grams of marijuana, N.J.S.A. 2C:35-10a(3). Defendant pled guilty after the court denied his motion to suppress evidence. He was sentenced to a one-year term of probation. For the reasons that follow, we uphold the denial of the suppression motion, and we affirm defendant's conviction.
The following evidence was introduced at the suppression hearing. On April 2, 2010, Corporals Daniel McNamara and Michael Price of the Franklin Township Police Department's Crime Suppression Unit (Unit) were on patrol in the area of Millstone Road and Hamilton Street. Just before 9:00 p.m., the officers were heading westbound on Hamilton Street in an unmarked car driven by Corporal McNamara. Since the weather was nice, they both had their car windows down. As the officers passed a Toyota Camry operated by defendant, they immediately detected a strong odor of raw marijuana.
Upon smelling the marijuana, Corporal McNamara turned the patrol vehicle around and began to follow defendant's car. When the two corporals pulled up behind defendant they both noted that the odor of raw marijuana remained consistent. As a result, Corporal McNamara activated the patrol car's emergency lights and pulled defendant over. They continued to smell a strong odor of raw marijuana, which grew stronger as they approached defendant's car, confirming their suspicion that the smell was coming from inside it.
Corporal McNamara proceeded to ask defendant for his credentials. Almost immediately, defendant became agitated, asking why he had been stopped and saying, "this is bullshit! This is harassment!"
Although defendant continued to argue with the officers, he did produce his driving credentials. At this point, Corporal McNamara asked defendant to exit his vehicle. As defendant started to comply by opening his door, Corporal McNamara, with the aid of his flashlight, immediately observed a small piece of marijuana in the map pocket of the driver's side door. Upon making this observation, the officers placed defendant under arrest for the possession of marijuana.
At this point, two other members of the Unit, Officers Michael Opaleski and Sammy Hernandez, arrived at the scene as backup. Right before he exited his patrol car, Officer Hernandez, whose window was down, smelled a strong odor of marijuana. The two officers then exited their vehicle and approached defendant's car. When he was approximately five to six feet from defendant's vehicle, Officer Opaleski, whose nose was congested due to allergies, smelled "the extremely pungent odor of raw marijuana." Both officers also noted that the odor of raw marijuana got stronger as they got closer to defendant's vehicle.
After defendant's arrest, Corporal Price asked defendant if he was the vehicle owner as he wanted to conduct a consent search of the vehicle. When defendant replied that his parents owned it and they were at home, the corporal asked defendant for his home phone number. Corporal Price called defendant's home and spoke with defendant's father, Hari Menon (Mr. Menon). As Corporal Price told Mr. Menon about the motor vehicle stop and began asking him for his consent to search the vehicle, defendant yelled, "dad, don't let them do it[.]"
Although Mr. Menon verbally consented to the search of the vehicle, Corporal Price decided to try and obtain written consent before proceeding with the search. As a result, Corporal Price went to defendant's home and told his father about the odor of marijuana emanating from defendant's car. During this conversation, Mr. Menon indicated that, while defendant was the primary driver of that vehicle, the vehicle was owned by him and his wife. Corporal Price then read to Mr. Menon a Franklin Township Police Department "Consent to Search" form for the search of not only defendant's vehicle, but also his bedroom. Mr. Menon then signed the form authorizing the searches.
Subsequently, the officers at the Menon home relayed this information to Officers Opaleski and Hernandez, who proceeded to search the vehicle and found a bag of raw marijuana wrapped in a sweatshirt in the vehicle's trunk. A search of defendant's bedroom failed to produce any evidence.
In a July 7, 2011 oral opinion, Judge Paul Armstrong described the testimony of the police officers as "forthright . . . credible and worthy of belief." In contrast, the judge characterized the testimony of defendant as "argumentative, nonresponsive, implausible and, therefore, unworthy of belief."
The judge concluded that the initial stop of defendant's vehicle was lawful based upon the officers' detecting "the odor of marijuana, an illegal substance, emanating from defendant's vehicle." The judge further found that the "small amount of marijuana found in the map pocket of the door of defendant's vehicle would qualify as within 'plain view.' The substance was immediately apparent after the officers had lawfully requested defendant exit his vehicle following the investigatory stop."
Regarding the issue of consent to search defendant's vehicle, the judge reasoned:
In this context, courts employ an objective test in determining whether at the time of entry the police reasonably believed that the third party possessed common authority over the premises, even if it is later discovered that such third party had no such authority. . . .
The totality of the circumstances and the credibility of the witnesses leads the court to find that in the present case, the defendant and his father, Mr. Menon, both represented to the officers that Mr. Menon owned the vehicle. The fact that only Despina Menon's name is on the vehicle registration and the fact that all parties acknowledge that defendant was the primary user of the vehicle is not dispositive. The defendant and his father told police that Mr. Menon was a co-owner of the car which established a sufficient basis for police to believe that Mr. Menon had color of authority to consent to the search of the vehicle.
On appeal, defendant presents the following arguments:
THE DEFENDANT'S RIGHT TO BE FREE FROM THE UNREASONABLE SEARCHES AND SEIZURE AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE POLICE SEIZURE OF THE DEFENDANT AND THE WARRANTLESS SEARCH OF HIS MOTHER'S CAR.
A. THE TRIAL COURT'S FINDINGS OF FACT SHOULD NOT BE GIVEN DEFERENCE IN THIS CASE BECAUSE THOSE FINDINGS ARE UNSUPPORTED BY A PROPER FOUNDATION, AS REQUIRED BY LAW.
B. THE TRIAL COURT'S FINDING THAT AN OBJECTIVELY REASONABLE POLICE OFFICER WOULD HAVE IGNORED THE MOTOR VEHICLE RECORDS AND INSTEAD RELIED ON REPRESENTATIONS OF THE CRIMINAL SUSPECT REGARDING OWNERSHIP OF THE VEHICLE IS AN ERRONEOUS LEGAL CONCLUSION.
When reviewing a motion to suppress, an "appellate court 'must uphold the factual findings underlying the [motion] court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). A motion court's findings of fact may be disturbed only when "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Best, 403 N.J.Super. 428, 434 (App. Div. 2008) (quoting Elders, supra, 192 N.J. at 244)), aff'd, 201 N.J. 100 (2010); see also State v. Locurto, 157 N.J. 463, 471 (1999).
The United States Constitution and New Jersey's Constitution protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 6, 7. A warrant is generally required before a search and seizure is conducted. A warrantless search is presumed invalid, and places the burden on the State to prove that the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). These exceptions include the plain view doctrine, State v. Mann, 203 N.J. 328, 340-41 (2010), and a search conducted pursuant to consent. State v. Domicz, 188 N.J. 285, 305 (2006).
As noted, our review of Judge Armstrong's decision on the suppression motion is limited. We are bound by his factual findings so long as they are supported by sufficient credible evidence. Elders, supra, 192 N.J. at 243. We owe special deference to his evaluation of witness credibility. See Locurto, supra, 157 N.J. at 474. Having reviewed the record, we find no basis to disturb Judge Armstrong's factual findings, and those findings determine the outcome of this appeal.
Defendant argues that the officers did not have a reasonable articulable suspicion to justify stopping the car. According to defendant, the testimony of Corporals Price and McNamara, that they smelled the marijuana in the trunk of his car and observed marijuana in plain view, was incredible. He also contends that the State failed to lay a proper foundation for that testimony. The trial court, after hearing the testimony of both corporals, testimony that was corroborated by Officers Opaleski and Hernandez, found otherwise.
The plain view doctrine is triggered when the police are "lawfully in the viewing area" and while there, discover the evidence "inadvertently, meaning that [they] did not know in advance where evidence was located nor intend before to seize it[, ]" and they had "probable cause to associate the [item] with criminal activity." Mann, supra, 203 N.J. at 341 (internal quotation marks and citations omitted).
The record shows that Corporal Price and Corporal McNamara were both highly trained and experienced police officers. Corporal Price had approximately twenty-eight years of law enforcement experience. He received extensive training in drug identification and detection, and participated in hundreds of cases involving marijuana. In addition to having smelled the odor of raw marijuana hundreds of times, Corporal Price testified that he had never been wrong when it came to identifying raw marijuana by its smell.
Corporal McNamara had eighteen years of law enforcement experience, which also included extensive training and experience regarding narcotics investigations. He participated in over 1, 000 marijuana related investigations and had smelled the odor of raw marijuana several hundred times. Like Corporal Price, he had also never been wrong when it came to identifying raw marijuana by its smell.
The State argues that the extensive training and experience of both officers provided a sufficient foundation for stopping defendant's vehicle because it smelled of raw marijuana. We agree. After hearing the testimony of all four officers who were at the scene of the motor vehicle stop and defendant, the trial court found the officers credible and defendant incredible. We must give deference to these credibility findings by Judge Armstrong as they were "substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case" which this Court cannot enjoy. State v Johnson, 42 N.J. 146, 161 (1964); see also Locurto, supra, 157 N.J. at 471. The officers' extensive experience in narcotics related investigations, along with testimony that the court found to be credible, provided sufficient credible evidence to justify the stop of defendant's vehicle, and the "in plain view" seizure of marijuana from the map pocket of defendant's vehicle. See Elders, supra, 192 N.J. at 243-44.
Defendant contends that the court erred when it found that the consent given by Mr. Menon to search defendant's vehicle was valid. According to defendant, the court mistakenly found that an objectively reasonable officer could have believed that Mr. Menon had the authority to consent to the search of the vehicle. The record indicates otherwise.
Generally, where consent is given, there is no requirement for either a warrant or any amount of suspicion. Domicz, supra, 188 N.J. at 303-07. However, when dealing with vehicles stopped for motor vehicle offenses, there must be "a reasonable and articulable suspicion of criminal wrongdoing" prior to seeking consent. State v. Carty, 170 N.J. 632, 635, modified on other grounds, 174 N.J. 351 (2002).
For consent to be valid, it must be voluntary, an essential element of which is knowledge of the right to refuse consent. Domicz, supra, 188 N.J. at 305; State v. Johnson, 68 N.J. 349, 352-354 (1975). Valid consent to search may be obtained from one other than the suspect. State v. Suazo, 133 N.J. 315, 320 (1993); State v. Coyle, 119 N.J. 194, 215 (1990). Consent to search may be obtained from a third party who possesses common authority over the property to be searched, "or from a third party whom the police reasonably believe has the authority to consent." State v. Maristany, 133 N.J. 299, 305 (1993).
Whether a third party possesses the authority over the property to consent depends on the "appearances of control" at the time of the search. State v. Farmer, 366 N.J.Super. 307, 313-14 (App. Div.) (holding it was reasonable for the officers to believe that the female that answered the door and advised the officers that her mother and children were present in the apartment was a resident with authority to consent to a search), certif. denied, 180 N.J. 456 (2004); See also State v. Miller, 159 N.J.Super. 552, 558-59 (App. Div.) (third party consent was valid where the third party told the police she resided in the room in question and possessed keys to the room), certif. denied, 78 N.J. 329 (1978).
In assessing an officer's reliance on a third party's consent, courts look to whether the officer's belief that the third party had the authority to consent was "objectively reasonable" in view of the facts and circumstances known at the time of the search. Suazo, supra, 133 N.J. at 320. As recognized in Maristany, "[a]ppearances of control at the time of the search, not subsequent determinations of title or property rights, inform our assessment of the officer's conduct." Maristany, supra, 133 N.J. at 305; see also Farmer, supra, 366 N.J.Super. at 313. The "validity of a search does not depend on whether the officer used the best procedure, but rather on whether the officer's conduct was objectively reasonable under the circumstances." Maristany, supra, 133 N.J. at 308.
A mistake as to whether a third party actually had authority to grant consent will not automatically invalidate a search. "[I]f a law-enforcement officer at the time of the search erroneously, but reasonably, believed that a third party possessed common authority over the property to be searched, a warrantless search based on that third party's consent is permissible under the Fourth Amendment." Suazo, supra, 133 N.J. at 320. A police officer need not be factually correct; the officer need only have a reasonable belief that the consenting party has sufficient control over the property. State v. Crumb, 307 N.J.Super. 204, 243 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998).
In summary, the consent exception to the warrant requirement, as applied to the search of a motor vehicle, has three prongs. The State must prove: 1) the police had a reasonable and articulable suspicion of criminal activity; 2) the consent was voluntary; and 3) the person who granted consent had the authority to do so. The State contends that all three prongs were met in this case. We agree.
The first two prongs were clearly established. Regarding the first prong, the police smelled the odor of raw marijuana emanating from defendant's vehicle and then observed a small quantity of marijuana in plain view inside the vehicle. Regarding the second prong, after defendant had been stopped, Corporal Price called Mr. Menon and explained the situation. He then asked Mr. Menon for consent to search the vehicle and he agreed. The police then went to Mr. Menon's home and presented him with a "Consent to Search" form. This form fully explained to Mr. Menon his rights, including his right to refuse to give his consent In fact the first line on the consent form reads "I Hari Menon have been advised by Cpl Mike Price that I have the right to refuse giving my consent to search" After the form was read to Mr Menon he signed it The record thus shows that Mr Menon's consent was knowing and voluntary
In regard to the third prong the record supports the judge's finding that the police "reasonably believed" Mr Menon had the authority to grant consent to the search Defendant told the police that his "parents" owned the vehicle He also provided Corporal Price with his parents' phone number When his father Mr Menon answered the telephone he told Corporal Price that he and his wife owned the vehicle All of these facts gave "the appearance of control" by Mr Menon The officers' belief that Mr Menon had the authority to consent to a search was therefore "objectively reasonable" in light of the "facts and circumstances" The officers were entitled to rely on the representations of ownership made by defendant and his father and that reliance was reasonable As such the search was valid as the police "reasonably believed" Mr Menon had the authority to grant consent to the search
We are satisfied that the trial court correctly denied defendant's motion to suppress