November 18, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
SCOTT A. GOBLE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 10-06-0702 and 10-06-0713.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Reema Sethi Kareer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Nugent and Haas.
Following the denial of his motion to suppress the shotgun seized by police from his pickup truck, defendant Scott A. Goble pleaded guilty to the first count of a Morris County indictment charging him with third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5(c)(1), and to the sole count of a separate Morris County indictment charging him with possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10(a)(1). The court sentenced defendant to a five-year prison term with three years of parole ineligibility on the weapons offense, and to a concurrent five-year prison term on the CDS offense. Defendant appeals from the judgments of conviction, contending the trial court wrongfully denied his motion to suppress the shotgun. We affirm.
The parties developed the following facts at the suppression hearing. At approximately 2:11 p.m. on January 18, 2010, Washington Township Police Officer Philip Seabeck was patrolling on Route 46 when he saw an approaching pickup truck make a left-hand turn. Defendant was driving the truck and another person sat in the passenger seat. Although Seabeck observed no traffic violations or other unlawful activity, he ran the pickup's license plate and learned that Florida authorities had issued a "no bail warrant" for the truck's registered owner. After alerting both dispatch and another patrolman, Officer Hade, Seabeck turned his patrol car around and looked for the pickup, which he soon spotted in a motel parking lot. Defendant was standing alongside the passenger side of the truck holding keys and a water bottle, but Seabeck did not see the passenger.
Seabeck parked and approached the pickup. Hade arrived shortly thereafter. In response to Seabeck's questions, defendant produced his credentials and the credentials for the vehicle. When Seabeck explained that he had run the pickup license plate and a no bail warrant came back, defendant asked if it had been issued in Florida. Seabeck responded that "dispatch was looking into the warrant at this time."
When Seabeck asked about the passenger, defendant explained that the passenger's name was John Anderson or Ackerson; he was unsure of the last name. Defendant further explained that the passenger, an old friend from high school, lived at the motel and had gone into his apartment. Intending to question defendant further, Seabeck read defendant his Miranda rights and defendant acknowledged he understood them.
Seabeck next asked defendant about his eyes, which the officer observed to be "pinpointed." During the ensuing conversation, defendant said that he had a bad heroin addiction, then gave inconsistent statements about how long he had been "clean." First he said ten months, then he said he had used heroin approximately two weeks ago, and then he said he had used heroin approximately two days ago. He pulled up his sleeves and displayed his forearms, which had several needle sticks and track marks. Seabeck did not remember if defendant pulled up his sleeves voluntarily, but did remember that one of the "needle sticks" was "very fresh" and appeared to have dried blood around it.
When Seabeck questioned defendant about that particular needle mark, defendant admitted he had used heroin the previous night, between 7:00 and 8:00 p.m. At that time, Seabeck "suspected that there may have been contraband possibly in the vehicle." He also suspected defendant might be under the influence of the narcotics. Patrolman Hade contacted Corporal Bigham, a drug recognition expert, and requested that Bigham come to the parking lot and conduct field sobriety tests. Defendant was placed in the rear of the patrol car pending Bigham's arrival.
Bigham arrived, had defendant perform field sobriety tests, and determined that defendant was not under the influence of drugs and his ability to drive was not impaired. Despite Bigham's conclusions, and still suspecting that the pickup contained possible contraband, Seabeck called for a K-9 dog. Officer Seabeck explained why he called for the K-9:
Q. Okay. What specifically was going on in your mind that led you to request the K-9 Unit to arrive at the scene for a search of the vehicle?
A. I had a nervous individual that knew he had a warrant so -- which led me to believe that if he knew about it and he's been stopped before, he shouldn't really be nervous. I advised him that was the initial reason for the stop. He walked around his truck. He had the pinpoint of pupils. He was inconsistent with his stories of who his passenger was, where he was, and also his admission to using heroin all the way from a year ago changing the story up all the way until last night. I still suspected there could have been contraband in the vehicle.
Q. Was it also -- was the fact that there were fresh needle sticks and track marks, were those also factors[?]
[DEFENSE COUNSEL]: Objection; leading.
THE COURT: Sustained.
Q. Was there anything else that was in your mind -- or that you thought about in your mind at the time that might have led you to request a K-9 Unit to respond to search the vehicle?
A. Well, he had showed me evidence of use and he advised me that he had a bad heroin addiction with the -- with the evidence --the totality of the circumstances and with the presence of the needle sticks, I advised he could have used at any time.
Q. And what -- what was -- what entered your mind when you received the results of the [drug recognition expert]?
A. That --
Q. Did that affect -- did that affect what was going on in your mind at the time with respect to calling the K-9 Unit?
A. Well, yeah, of course it did because he stated to me that he was not under the influence to the point that he couldn't operate a motor vehicle. So he could have still used prior and maybe it was still in his system. So he -- you know, the time line of him using was unclear to me at that time.
Seabeck located the passenger, John Ackerson, in an apartment in the motel. After Ackerson made statements inconsistent with those made by defendant, and after Seabeck learned that Ackerson had three outstanding warrants, two traffic and one criminal, Seabeck arrested him.
Detective Douglas Laird, who was with the Morris County Sheriff's Office's K-9 unit, arrived with a dog at 3:17 p.m., one hour and six minutes after Seabeck had first contacted dispatch. Seabeck asked defendant for consent to search the pickup. He read defendant a consent-to-search form, which informed defendant that he need not consent and that he could stop the search at any time. Defendant signed the form. Four officers and the drug-sniffing dog were present.
After defendant signed the consent form, Laird searched the pickup and saw small amounts of marijuana scattered within the cab. Defendant requested that the search be stopped. Laird stopped searching, but by then the dog "showed interest in and around the center console of the truck." Seabeck explained that a dog "shows interest" by either scratching at the area or sitting and looking at it after detecting "contraband and/or narcotics." Defendant then changed his mind and verbally consented to the police continuing to search the pickup. Laird found shotgun shells in the area of the center console and a shotgun behind the front seat. Seabeck seized the shells and the shotgun.
Throughout the afternoon, each time an officer called the police department, the time of the call was recorded by dispatch. Seabeck ran defendant's license plate at 2:11 p.m. The officers called and requested a K-9 unit at 2:32 p.m. The K-9 unit arrived at the scene forty-five minutes later, at 3:17 p.m. After finding the shotgun in defendant's truck, the officers arrested defendant at 3:49 p.m., one hour and thirty-eight minutes after Seabeck first notified dispatch. According to Seabeck, the police station was approximately six or seven miles from the motel where defendant was arrested.
Although Seabeck had initially detained defendant due to the outstanding Florida warrant, and had continued to detain defendant to determine the status of the warrant, the officer did not recall receiving any information as to whether the warrant was subject to extradition before the police seized the ammunition and shotgun from defendant's truck.
Detective Douglas Laird, a ten-year member of the Morris County Sheriff's Office, testified that he "respond[s] to all K-9 requests within Morris County[, ]" including requests to search vehicles and narcotics detection. On January 18, 2010, "[a]t approximately 3:30 [p.m.], " he was notified to respond to Washington Township to assist with a narcotics investigation. The call came from the Morris County communications center, which was "our dispatch."
Laird drove to the scene where he met Seabeck, who asked him to have the dog search defendant's truck for narcotics. Laird asked if Seabeck had consent to search the truck, and Seabeck handed him the consent form defendant had signed. Laird did not personally look at the form, but Seabeck said the form had been signed by the driver. Laird, "utilized K-9 Reno, [his] trained narcotics detection dog to search the pickup truck." After searching the exterior of the truck, Laird led Reno to the interior where "K-9 Reno showed an interest in the area of the center console . . . [h]e had a change of behavior. He was interested in the area but did not indicate." Laird explained that a change in behavior "could be anything from [the dog's] ears moving to his tail moving, body posture." Because the dog "did not indicate, " Laird continued searching the interior of the vehicle.
According to Laird, "[t]he result of that search was believed to be marijuana residue in the center console of the vehicle." Laird could not recall if he seized the marijuana, but did not believe there was enough for collection. There were no bags of marijuana, only "green leafy flakes scattered . . . in the center console."
Continuing with his search, Laird noticed a box of twelve-gauge shotgun ammunition in the center console. "After further investigation, [he] noticed the butt end of a shotgun behind the bench seat." Laird "notified Patrolman Seabeck of the shotgun and handed it to him" along with the ammunition.
Laird acknowledged that at some point during his search of the vehicle an officer told him to stop. Laird stopped searching and returned Reno to his patrol vehicle. Later, he was told he could resume the search, which he did. He could not remember when he found the shotgun in relation to when he was told to stop the search.
Laird acknowledged that the report he prepared referred to neither the marijuana residue nor the shotgun. He explained that he did not refer to the shotgun in his report because his "responsibility was for the narcotics investigation and [the shotgun] was the responsibility of Patrolman Seabeck[.]" Laird did not refer to the marijuana residue in his report because "[t]here was not enough for a collection and [defendant] was not being charged."
During cross-examination, Laird testified that he was not present when Seabeck and defendant discussed defendant's consent to search the pickup truck. Laird was not advised by Seabeck that there was a limitation to the consent. When Laird initially searched the interior of the truck, he did so by unleashing Reno inside of the truck. Laird was not in the truck when the dog showed interest in the center console. In his report, Laird "indicated that K-9 Reno showed no positive indication to the odor of narcotics, " a fact Laird acknowledged during his testimony.
Defendant testified that John Ackerson had helped him deliver firewood and he had dropped Ackerson off at the Park Plaza Motel on Route 46 when he was confronted by the police. Ackerson had just entered the motel and defendant was locking the truck, intending to go to Ackerson's room, when Seabeck pulled up. Defendant assumed Seabeck was going to question him about an outstanding Florida warrant. According to defendant, the discussion about the warrant was brief. Seabeck said there was a warrant, defendant asked if it was out of Florida, "and that was basically about it." Seabeck never told defendant that the warrant "was not going to be extraditable, " and never said he intended to arrest defendant based on the outstanding warrant. Defendant denied he was given Miranda warnings, acknowledged discussing his heroin usage with Seabeck, and said that Seabeck asked him, defendant, to roll up his sleeves and show his arms.
Defendant also acknowledged that an officer came to the scene and performed field sobriety tests. When the tests were completed, defendant was placed in a patrol car while the police waited for a K-9 unit to arrive. According to defendant, he was placed in the patrol car and told they would have to wait for the K-9 unit because he would not give his consent to the officers searching the pickup truck. Seabeck read the form to defendant and defendant refused to sign it. When defendant refused, they asked him if the dog would be allowed to search and he said yes. Defendant refused to sign the consent form unless the police changed the word "officers" on the consent form to "K-9 or dogs." Seabeck said he would make the change, and defendant signed the form.
After the search began, defendant saw the K-9 officer go into the pickup truck and start searching around, looking for stuff. As soon as that happened, defendant asked that the search be discontinued. Seabeck told Laird to stop the search. Laird stopped. Defendant then described the ensuing events:
Q. What happened next if anything?
A. Again, if memory serves me right, I believe that I was in the patrol car still and I was approached by Detective Laird, Officer Seabeck and Corporal [Bigham] and they were standing over me telling me that because the dog made hits –
[THE PROSECUTOR]: Objection, Your Honor.
THE COURT: Sustained.
Q. Well, did you – did you voluntarily give consent for them to resume the search?
A. I did.
Q. did you feel like you had the right not to -- to consent versus –
A. I felt that I did not have the right.
Q. Why did you feel that way?
A. Because they were following up on hits.
Defendant was not asked to sign any form indicating that he agreed to resume the search.
On cross-examination, defendant acknowledged that when he rolled up his sleeves there were track marks and a fresh needle mark on his arms. When the prosecutor asked him why he consented to having the dog search his truck, defendant responded: "Because of prior experience, officers destroying a vehicle, pulling headliners out . . . of the vehicles. I just didn't feel that anybody had a right to search my vehicle." When the prosecutor followed up with the question, "But you allowed the K-9 to enter the vehicle, " defendant responded, "because I knew there was no drugs in my vehicle."
Defendant also testified that he signed the consent form indicating that he had a right to refuse the search; that he was authorizing Seabeck and any other officers designated by Seabeck to assist him to conduct a search and seize anything pertinent to their investigation; and that he was giving his permission voluntarily and without duress, threats, or promises of any kind. Defendant acknowledged that he "understood all of that" when he signed the consent form. The consent form did not indicate that only the K-9 was permitted to search defendant's pickup truck.
When defendant asked that the search be discontinued, the officers complied. When he told them they could resume the search, he was not handcuffed and he had not been placed under arrest.
Over defendant's objection, the court permitted the prosecutor to ask defendant if he were surprised to know Ackerson had given a statement in which he did not mention dropping off firewood. Defendant testified that he would not be surprised because he had read Ackerson's statement to police in which Ackerson had decided not to say anything at all. Defendant also admitted that he lied to Seabeck three times about when he last used heroin.
Following the close of evidence and the parties' arguments, the court delivered its decision from the bench and denied defendant's suppression motion. The court found that Seabeck testified credibly when he said he read defendant his Miranda rights. The court disbelieved defendant's testimony that he could not recall being given the Miranda warnings.
The court next determined that Seabeck lacked sufficient cause to order defendant to roll up his sleeves, and therefore the state could not use evidence of the track marks on defendant's arms at trial. Nevertheless, the court concluded Seabeck had "reason to believe that there may be contraband in the vehicle or that the defendant was under the influence." The court also found, despite Corporal Bigham's conclusion that defendant was not under the influence of heroin, that Seabeck reasonably suspected there might be contraband in the truck because defendant had last used heroin sixteen hours earlier and "sixteen hours is not such a long period of time . . . with which evidence or contraband would no longer be present. It's reasonable to believe that over a sixteen-hour period evidence may still be present, meaning contraband in the vehicle." The court also considered the other circumstances, namely defendant's nervousness, inconsistent answers about how well he knew the passenger, and inconsistent answers about when he had last used heroin.
Next, the court found Seabeck credible, and disbelieved defendant, as to whether defendant signed an unconditional search form or one conditioned on a search by a K-9 only.
Lastly, the court found that defendant voluntarily consented to the police resuming the search after defendant requested that they stop. The court rejected defendant's testimony that he involuntarily permitted the police to resume the search that ultimately led to Laird discovering the shotgun.
A Morris County grand jury charged defendant in a two-count indictment with third-degree unlawful possession of a weapon, a shotgun, N.J.S.A. 2C:39-5(c)(1) (count one); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1). The grand jury also charged defendant in a separate single-count indictment with third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10(a)(1). As previously indicated, defendant pled guilty to count one of the first indictment and to the single count of the second indictment. The court subsequently sentenced defendant in accordance with the negotiated guilty plea to a five-year prison term with a three-year period of parole ineligibility on the weapons offense; and to a concurrent five-year prison term on the CDS offense. The court also imposed appropriate assessments and penalties. This appeal followed.
Defendant presents the following point for our review:
DEFENDANT WAS HARASSED BY POLICE BECAUSE OF HIS STATUS AS A DRUG-ADDICTED PERSON; UNDER THE CIRCUMSTANCES, HIS CONTINUED DETENTION UNTIL A K-9 UNIT ARRIVED ON THE SCENE WAS UNREASONABLE AND IN CONTRAVENTION OF N.J. CONST. ART. I PAR. 7 AND U.S. CONST. AMENDS. IV AND XIV.
When reviewing a trial court's decision to grant or deny a motion to suppress evidence, we "'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. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We give deference "to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). Our review of a trial court's legal conclusions, however, is plenary. Handy, supra, 206 N.J. at 45.
Defendant contends "the length of detention prior to securing defendant's consent [to search the truck] was objectively unreasonable under the circumstances, rendering the search unlawful." He maintains that Seabeck did not diligently follow up with dispatch concerning the status of the Florida warrant. Seabeck notified dispatch of the outstanding Florida warrant at 2:11 p.m., and the K-9 officer, Laird, arrived on the scene at 3:17 p.m., at which time Seabeck told Laird that defendant had consented to the K-9 search of the pickup truck. Seabeck showed Laird the signed consent form. Thus, one hour and six minutes elapsed between Seabeck learning of the outstanding Florida warrant and defendant signing the consent form. The question we must decide is whether the detention of defendant for approximately one hour and six minutes was objectively unreasonable.
Defendant concedes "there is no question that the initial stop was lawful, " and that because "Seabeck quickly confirmed that defendant was the registered owner, . . . he lawfully detained defendant with the understanding that dispatch would provide more detail about the warrant." Defendant also concedes that Seabeck reasonably believed that defendant had driven the truck under the influence. Defendant disputes, however, that the police had a right to continue to detain him at the scene after he passed the field sobriety tests. Defendant argues that after Corporal Bigham determined defendant was not under the influence of drugs, "Seabeck was obligated to either arrest defendant on the warrant, or let him go after a diligent follow-up with dispatch revealed that the warrant was not extraditable." Defendant argues that Seabeck did not diligently follow-up with dispatch, and therefore the continued detention was unreasonable.
The United States and New Jersey Constitutions protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. When police officers detain a person, even briefly, following an automobile stop, they have "seized" the person within the meaning of the Fourth Amendment. State v. Baum, 199 N.J. 407, 423 (2009); State v. Dickey, 152 N.J. 468, 475 (1998). For that reason, "any automobile stop, however brief, must satisfy the Fourth Amendment's basic requirement of 'reasonableness.'" State v. Hickman, 335 N.J.Super. 623, 634 (App. Div. 2000).
"Courts employ [the] Terry standard to measure the reasonableness of a detention following a valid traffic stop." Dickey, supra, 152 N.J. at 476. Under that standard, courts must consider "'whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'" Ibid. (quoting Terry, supra, 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905).
Police officers who have lawfully stopped an automobile "may question the occupants, even on a subject unrelated to the purpose of the stop, without violating the Fourth Amendment, so long as such questioning does not extend the duration of the stop." Hickman, supra, 335 N.J.Super. at 636. "If, . . . as a result of the reasonable inquiries initiated by the officer, the circumstances 'give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.'" Dickey, supra, 152 N.J. at 479-80 (alterations in original) (quoting United States v. Johnson, 58 F.3d 356, 357-58 (8th Cir.), cert. denied, 516 U.S. 936, 116 S.Ct. 348, 133 L.Ed.2d 245 (1995)). Nevertheless, "a continued detention may amount to an arrest if it is longer than needed or if it becomes 'more than minimally intrusive[.]'" Baum, supra, 199 N.J. at 425 (quoting Dickey, supra, 152 N.J. at 478).
Here, as defendant concedes, Seabeck had a right to detain defendant while dispatch obtained information about the status of the outstanding Florida warrant. Defendant also concedes that Seabeck had a right to further detain him based on his admitted drug use, his inconsistent answers about when he last used heroin, and the appearance of the pupils of his eyes. He disputes, however, that Seabeck had the right to continue to detain him after he passed the field sobriety tests. He argues that Seabeck "continued to detain [him] at the scene for a total of one hour and six minutes after the initial stop to obtain a K9 because [he] 'would not give consent to the officers to search the vehicle.'"
Defendant further argues that even assuming Seabeck had reasonable and articulable suspicion to ask for consent to search the pickup truck, see State v. Carty, 170 N.J. 632, 635, modified by 174 N.J. 351 (2002), the length of the detention was unreasonable. We disagree.
In Dickey, supra, our Supreme Court discussed "the outer limits of duration of a detention." 152 N.J. at 481. Referring to United States v. Sharpe, 470 U.S. 675, 686-88, 105 S.Ct. 1568, 1575-77, 84 L.Ed.2d 605, 615-17 (1985), the Court noted "that a twenty-minute detention was reasonable when the police acted diligently and defendant contributed to the delay." Dickey, supra, 152 N.J. at 481. The Court also cited other cases where the police detention of individuals for periods of seventy-five minutes or less had been upheld:
Using the foregoing [Terry/Sharpe] test, courts have upheld detention of forty-five minutes, United States v. Davies, 768 F.2d 893, 901 (7th Cir.), cert. denied, 474 U.S. 1008, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985); fifty minutes, United States v. Alpert, 816 F.2d 958, 964 (4th Cir. 1987); sixty minutes, United States v. Large, 729 F.2d 636, 639 (8th Cir. 1984); United States v. Campbell, 627 F.Supp. 320, 325-26 (D. Alaska 1985), aff'd, 810 F.2d 206 (9th Cir. 1987) and seventy-five minutes, United States v. Borys, 766 F.2d 304, 313 (7th Cir. 1985), cert. denied, 474 U.S. 1082, 106 S.Ct. 852, 88 L.Ed.2d 893 (1986). Each of the last four cited cases involved delays necessitated by efforts to obtain a narcotics dog for sniffing luggage or packages, as in this case.
[Ibid. (quoting Limonja v. Commonwealth, 383 S.E.2d 476, 482 (1989), cert. Denied, 495 U.S. 905, 110 S.Ct. 1925, 109 L.Ed.2d 288 (1990)).]
On the other hand, the court cited instances where detentions of three hours, more than two hours, and ninety minutes, had not been upheld. Id. at 481-82.
Here, the total time that elapsed between Seabeck becoming aware of the outstanding Florida warrant and defendant's consenting to the search was sixty-six minutes; a time frame not beyond the outer limits of detention of those cases cited by our Supreme Court in Dickey.
Nor do we find, under the totality of circumstances, that defendant's detention was unduly intrusive. The detention did not involve a delay beyond the legitimate investigation of the law enforcement officers, did not unnecessarily engender fear and humiliation, and did not result in the transporting of defendant from one location to another. Id. at 479. Significantly, the police did not stop defendant while he was driving the pickup, and they did not transport him to the police station before finding the gun. In other words, they did not remove him from the motel where he intended to visit with Ackerson. Transporting defendant to the police station would have been a greater intrusion than conducting the Terry investigation at the motel where defendant had parked and intended to stay.
The conduct of the officers was, to some extent, intrusive. They detained defendant for one hour and six minutes before he signed the consent to search, and at times they confined him to a police car. The facts present a close case as to whether the police exceeded the bounds of a Terry stop and effectuated an unlawful arrest. But that fact-sensitive determination was dependent upon the totality of the circumstances, which the trial court carefully considered before upholding the search of defendant's pickup truck. We cannot conclude as a matter of law that the trial court erred in its determination.