June 26, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DON D. BRODIE, a/k/a DONALD DEWITT BRODIE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-12-1022.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
Before Judges Grall and Accurso.
Following the denial of his motion to suppress evidence found during a search of his girlfriend's apartment conducted with her consent, defendant Don D. Brodie pled guilty to possession of a controlled dangerous substance (CDS) with intent to distribute in a school zone, N.J.S.A. 2C:35-7, a crime of the third degree. This was defendant's second conviction for possession of CDS with intent to distribute, and consequently he was subject to a mandatory extended term sentence with a period of parole ineligibility. N.J.S.A. 2C:35-12, :43-6f. In accordance with a plea agreement, he was sentenced to a six-year term of imprisonment, forty months to be served without possibility of parole.
Defendant appeals the denial of his motion to suppress. R. 3:5-7(d). He argues:
THE WARRANTLESS SEARCH OF DEFENDANT'S JACKET WAS UNSUPPORTED BY THE SCOPE OF THE CONSENT GIVEN BY HIS GIRLFRIEND; ADDITIONALLY, SHE WAS UNQUALIFIED TO GIVE CONSENT TO SEARCH A JACKET THAT OBVIOUSLY BELONGED TO DEFENDANT, NOT HER.
Defendant did not raise this issue at the suppression hearing, and the factual predicates for the claim about his girlfriend's lack of authority to consent were not developed. Two police officers testified on behalf of the State, and defendant's girlfriend, T.J., testified for the defense. Defense counsel argued that defendant's arrest was not supported by probable cause and that T.J.'s consent to the search was coerced, not voluntary. Defendant does not challenge the court's rejection of either of those arguments on appeal.
The testimony was as follows. In response to a tip from a confidential informant, who had provided one of the officers with reliable information on four prior occasions, two detectives of the Plainfield Police Department conducted a surveillance of an apartment building in Plainfield in August 2008. Based on the tip, they expected to see defendant, whom the informant alleged was distributing drugs from apartment 10 in that building, deliver drugs to a white male. One detective saw defendant in the vestibule of the apartment building with a Hispanic male. The unidentified male left the vestibule looking down at something he was holding while defendant stood there counting currency.
Because the building's staircase had windows, the detective who was outside and in the back of the building was able to see defendant ascending the steps to the third floor. The officers attempted to detain the Hispanic male before he left the area but did not succeed.
Later, the detectives saw a white male and defendant outside the apartment building. The detectives did not see them make eye contact, but both men were talking on their respective cell phones and ended their calls at about the same time. Thereafter, the white male was following defendant into the apartment building. Before any transaction could occur, the police attempted to detain both men, but they only succeeded in apprehending defendant. After detaining defendant, they searched him and found cash but no drugs on his person.
Defendant told the detectives he lived in apartment 5 of the building. Two detectives spoke to a resident of that apartment and were advised that defendant lived in apartment 10 with his girlfriend T.J. There was no testimony indicating that the detectives asked defendant to consent to a search of apartment 10 or that defendant protested.
From the testimony, one could infer that they went directly from apartment 5, which is on the second floor of the building to apartment 10, which is on the third floor. The detectives knocked on the door, and T.J. answered. She said that her name was on the lease; that she lived there with her two children; and that defendant stayed with her from time to time but did not live there. The detectives told her that they suspected defendant had illegal drugs in her apartment.
According to one of the detectives, T.J. seemed surprised and was disturbed upon hearing that he might have drugs in her home. She told the officers that defendant was outside smoking a cigarette. The detectives asked T.J. to sign a form indicating her consent to search, and she testified that she read and understood it, including her right to withhold consent.
T.J. maintained, however, that she consented only because the detectives told her she would be arrested and the Division of Youth and Family Services would take her children and because of that she agreed to the search. The officers denied saying anything of the sort. The trial court credited the detectives testimony, and found T.J.'s conflicting and biased testimony incredible.
The consent form read, in relevant part:
The undersigned, residing at . . . apartment 10 does hereby authorize members of the Plainfield Police Department . . . to search my complete residence or other real property located at . . . apartment 10.
And I further authorize said officers to remove from my residence, real estate or motor vehicle, whatever documents or items, property whatsoever which they deem pertinent to their investigation . . . .
After T.J. signed that consent to search, the detectives went to T.J.'s bedroom, specifically to an area in her closet where she indicated defendant left his clothing. On the closet floor, they found a man's leather jacket with money protruding from one of the pockets. One detective removed the cash, approximately $920. He then reached into another pocket and found approximately 100 glassine folds of suspected heroin.
The detectives left the apartment with the coat. Defendant, who was still detained outside the building, told the detectives that the coat and the drugs inside were his and that no one else in the apartment knew about the drugs.
The arguments defendant presents on appeal concerning the scope of T.J.'s consent and her lack of authority to consent to the search of his jacket were not presented to the trial court. In State v. Robinson, 200 N.J. 1, 18-19 (2009), the Court held that where the "factual antecedents" of a claimed constitutional violation were not "subjected to the rigors of an adversary hearing, and . . . legal propriety" was not "ruled on by the trial court, " the issues were "not properly preserved for appellate review." The Court stressed that "[t]he 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." Id. at 19. The Court emphasized: "In short, the points of divergence developed in proceedings before a trial court define the metes and bounds of appellate review." Ibid.
Adhering to the limitations articulated in Robinson, we decline to consider the question of T.J.'s authority to consent to the search of the jacket's pocket. The issue is beyond the metes and bounds defined by the points of divergence developed in the trial court. Moreover, confinement of review to those boundaries is especially appropriate in a case where a defendant has pled guilty reserving only the right to challenge the "denial of a motion made pursuant to" Rule 3:5-7, not any objection that might have been made at the suppression hearing. R. 3:5-7(d); see generally State v. Robinson, 224 N.J.Super. 495, 500-01 (App. Div. 1988) (discussing the origins and limited scope of paragraph d of Rule 3:5-7).
Given that the issue is raised here for the first time, it suffices to note that there was no obvious deficiency in the State's proofs demonstrating the validity of this search. "A warrantless search, particularly of a home, is presumptively unreasonable and . . . justified only if it falls within a specific exception to the warrant requirement of the Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution. . . . Consent is a well-recognized exception . . . ." State v. Crumb, 307 N.J.Super. 204, 242 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). The validity of a search depends upon whether it is reasonable, and reasonableness requires consideration of the specific facts of the case in light of the totality of the circumstances. Id. at 245.
Where, as here, consent is given by a third party and not the defendant's whose belongings are searched, the question is whether the officers had reasonable grounds to believe that the third party had "common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 250 (1974). A reason to believe the defendant has a sufficient relationship may be inferred from facts indicating "'mutual use of the property by persons generally having joint access or control for most purposes.'" State v. Suazo, 133 N.J. 315, 320 (1993) (quoting Matlock, supra, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7, 39 L.Ed.2d at 250 n. 7).
The evidence developed at this suppression hearing — including, the facts that T.J. and her children lived in the apartment; defendant stayed there from time to time; and his leather jacket was lying on the floor in an area of T.J.'s bedroom closet with cash protruding from its pocket — suggests joint access and control for must purposes. It does not, in our view, raise the obvious questions about access and control that are presented by a resident's or car owner's consent to a search of a visitor's or occupant's closed suitcase duffle bag or other similar container Suazo supra 133 N.J. at 320-22 Nor is there any indication that the officers detained defendant outside the apartment building in order to avoid his potential objection to search of the leather jacket he left in TJ's apartment Georgia v Randolph 547 U.S. 103 121-22 126 S.Ct. 1515 1527 164 L.Ed.2d 208 227-28 (2006)
As noted above defendant has not objected to the trial court's determination on the issues he presented to that court and developed at the hearing on the motion to suppress Thus those arguments are deemed abandoned Muto v Kemper Reinsurance Co 189
N.J.Super. 417 420-21 (App Div 1983)