July 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MICHAEL C. HARRIS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2013
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 10-09-0503.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).
Before Judges Parrillo and Messano.
Following denial of his motion to suppress, defendant pled guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). He was sentenced, in accordance with the negotiated plea agreement, to a five-year prison term without the possibility of parole. Defendant appeals, and we affirm.
According to the State's proofs at the suppression hearing, at about 3:00 p.m. on May 8, 2010, Salem County Prosecutor's Office Detective Elliott Hernandez received information from a confidential informant (CI), whom he knew to be reliable from previous experience, that defendant, whom he also knew, would be leaving a residence on Harmony Street in Penns Grove "shortly thereafter, " and transporting "a long gun, " possibly a shotgun, in a silver Mitsubishi Galant to State Street in the Borough. The CI specifically identified defendant by name. Detective Hernandez then alerted Penns Grove Police Sergeant Patrick Riley, who was working patrol, of the tip, and began surveillance of the area until defendant was observed some four hours later, at around 7:30 p.m.
Meanwhile, Sergeant Riley, who knew defendant from previous investigations, performed a motor vehicle check and discovered that defendant's driver's license was suspended. He relayed this information to Detective Hernandez, who was at the surveillance location two blocks from a residence on Harmony Street where the Mitsubishi was parked, directly in front, consistent with the CI's tip.
At around 7:30 p.m., Detective Hernandez saw a man he recognized as defendant exit the residence and walk to the back of the Mitsubishi. The car trunk was open but from his surveillance location, Detective Hernandez could not see what defendant was doing other than closing the trunk. Defendant then entered the car, drove to the stop sign at Franklin Street, and made a right onto Franklin towards West Main Street.
Sergeant Riley was parked in a marked patrol vehicle about a block away on West Main. When defendant reached the stop sign at the intersection of Franklin and West Main, he saw the marked police car. Defendant's left blinker was on, suggesting that he was going towards State Street, but instead he made a right onto West Main, proceeded to the next stop sign, and made a right onto Penn Street. At that point, Sergeant Riley activated his overhead lights and initiated a motor vehicle stop based on defendant's driving with a suspended license as well as the tip relayed to him earlier by Detective Hernandez.
When Sergeant Riley approached defendant's car and asked him for his driving credentials, defendant admitted that his license had been suspended. Sergeant Riley then had defendant exit the car, placed him under arrest, and transported him to police headquarters.
The stop took place about one house over from where the registered owner of the Mitsubishi, Tatiana Danzo, lived. Upon seeing the traffic stop, Danzo came over to the scene. Detective Hernandez requested, and Danzo gave, consent to search the vehicle. In the trunk, police found a shotgun.
At the close of evidence, defense counsel, in support of suppression of the weapon, argued that police lacked sufficient reasonable suspicion to request consent under State v. Carty, 170 N.J. 632,
modified o.g., 174 N.J. 351 (2002). The State, in opposition, maintained that the standard had been satisfied. In denying defendant's suppression motion, the judge first noted that defendant disputed neither the lawfulness of the motor vehicle stop nor that Danzo's consent was anything but knowing and voluntary. The motion judge further reasoned:
And, Carty announced the principle that it would no longer be acceptable for law enforcement officers . . . on a motor vehicle stop to just routinely ask the driver for a consent to search. There would have to be something to compel the search, and . . . that has to be a reasonable, articulable suspicion, and that concept was defined in State versus
Stovall, 170 N.J. 346[, ] Page 356[, ] . . . where the Supreme Court indicated that that "Particularized and objective basis for suspecting that the person stopped of criminal activity was what was required.
I would suggest that we have more than that here. We have . . . an anonymous tip, and we have something better than that, we have a confidential informant, that the officers know who that is, who names the defendant, specifically gives the location, describes the vehicle, says where he is going to be going, and indicates that he has a weapon in the vehicle, and he's transporting that weapon.
I would suggest that those facts, also gives a time, and I recognize we have some difficulty with the time. That weakens the State's case a little bit, but when I look to all of the facts in their entirety, I would suggest that there are sufficient facts under the Carty standard to justify the request for a consent search. . . .
This appeal follows, in which defendant again contends the so-called "consent" search was invalid because the State failed to prove the police had a reasonable and articulable suspicion that he was in possession of a firearm. We disagree.
Consent is a well-recognized exception to the Fourth Amendment's search warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854, 858 (1973). To be valid, however, a consent to search must be voluntary and knowing in nature. Id. at 222, 93 S.Ct. at 2045, 36 L.Ed.2d at 860. In New Jersey, the person giving consent must first be advised of his right to refuse. State v. Johnson, 68 N.J. 349, 353-54 (1975).
More pertinent here, when police request consent to search during a motor vehicle stop, they must have a reasonable and articulable suspicion that the search will produce evidence of criminal wrongdoing. Carty, supra, 170 N.J. at 635; State v. Thomas, 392 N.J.Super. 169, 188 (App. Div.), certif. denied, 192 N.J. 597 (2007). That standard has been defined as "a particularized and objective basis for suspecting the person stopped of criminal activity[, ]" and is a far lower standard than probable cause. State v. Stovall 170 N.J. 346, 356 (2002) (internal quotation marks and citation omitted).
"A finding of reasonable and articulable suspicion of ongoing criminality" is determined by objective "cumulative factors in a totality of the circumstances[.]" State v. Elders, 192 N.J. 224, 250 (2007). So, while an anonymous tip may be insufficient by itself to justify a request for consent, State v. Matthews, 398 N.J.Super. 551, 559-60 (App. Div.), certif. denied, 196 N.J. 344 (2008), cert. denied, 555 U.S. 1159, 129 S.Ct. 1037, 173 L.Ed.2d 480 (2009), that information must be considered together with all other facts of record, taking into account the standard indicia of reliability as well as the extent of independent police corroboration and degree of predictive accuracy, in determining whether reasonable suspicion exists. Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301, 310 (1990); Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 1378, 146 L.Ed.2d 254, 260 (2000); State v. Amelio, 197 N.J. 207, 212 (2008), cert. denied, 556 U.S. 1237, 129 S.Ct. 2402, 173 L.Ed.2d 1297 (2009); State v. Rodriguez, 172 N.J. 117, 127-28 (2002).
Here, the relevant circumstances extend well beyond an isolated anonymous tip of a man with a gun at a particular location, as in J.L., supra, and Matthews, supra. The tip in this case came from a CI not only identified and known to Detective Hernandez, but considered by him to be reliable. The CI's tip provided police with defendant's name, his location, a full description (including color, make and model) of the car he would be driving, and the route he would be traveling. All of these details were corroborated by the officers' first-hand observations, save for the timing, which was a few hours later than the CI had related. Furthermore, defendant was seen at the open trunk of his vehicle, and then closing it, leading to the reasonable inference that he was transporting something.
Moreover, defendant was identified by name and, more significant, both officers knew him from previous criminal investigations, see State v. Privott, 203 N.J. 16, 28-29 (2010), which are relevant factors in assessing reasonable suspicion
State v Valentine 134 N.J. 536 547 (1994) As is a tip such as the one here that accurately predicts future conduct of the suspect
JL supra 529 U.S. at 275 120 S.Ct. at 1381146 L.Ed.2d at 263 (Kennedy J concurring) On this score defendant's route of travel was exactly as described by the CI until defendant observed Sergeant Riley's marked car at which time defendant changed his plan to turn left and instead went right a circumstance that only heightened police suspicion of defendant's involvement in unlawful activity Thus the CI's tip in this case was reliable not just in its identification of neutral details and a determinate person but as well in its assertion of illegality Indeed defendant was at the open trunk of his vehicle and then closed it supporting the inference that he was transporting something and thereafter engaged in apparently evasive action the moment he spotted a marked police vehicle.
Simply put all these facts when considered in the aggregate amount to a reasonable articulable suspicion of ongoing criminal activity satisfy the Carty standard and justify the officer's request for consent to search from the car's owner.