Opinion
DOCKET NO. A-2188-10T3
06-18-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. QUINCY C. BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-07-1273.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his conviction following a jury trial of first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) (Count One); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count Two); third- degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) (Count Three); and fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3) (Count Four). At sentencing, after merging Count Two into Count One, and Count Four into Count Three, the court sentenced defendant, on Count One, to a sixteen-year prison term with a parole ineligibility period of eight years and, on Count Three, to a concurrent four-year term with a two-year parole ineligibility period. The court also imposed the requisite penalties in addition to an aggregate driver's license suspension of forty-eight months.
On appeal, defendant raises the following points for our consideration:
POINT I
BECAUSE THE CONSENT SEARCH OF . . . DEFENDANT'S MOTEL ROOM WAS THE PRODUCT OF HIS ILLEGAL ARREST, IT VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES. U.S. CONST. AMEND. IV, [§] XIV; N.J. CONST. . . . ART. I, [¶] 7.
POINT II
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
POINT III
THE CONSECUTIVE SUSPENSIONS OF DEFENDANT'S DRIVING PRIVILEGES MUST BE MODIFIED TO CONCURRENT SUSPENSIONS.
I.
Prior to trial, defendant moved to suppress evidence seized from his motel room at the time of his arrest. The court conducted a hearing at which one witness, Detective Brian Lucas, an eight-and-one-half-year veteran of the Bergen County Prosecutor's Office, testified. According to Detective Lucas, on April 5, 2007, Sergeant Rich McKay requested that he go to the Capri Inn in Little Ferry to investigate a maroon Taurus station wagon whose registered owner, according to a data base check, had two different dates of birth but the same Social Security number. Upon checking with the motel clerk, there was no guest with the vehicle owner's name registered at the motel. Based upon information provided by the motel clerk, police learned that the vehicle belonged to Cecil Marshall, a motel guest. A criminal history check of Cecil Marshall revealed a number of prior arrests as well as robbery convictions. Sergeant McKay directed Detective Lucas to conduct a stationary surveillance of the vehicle. Detective Lucas parked his vehicle in a manner that afforded him the ability to see the Taurus from his position.
Detective Lucas's vehicle had tinted windows and he was attired in plain clothes. During his surveillance, he observed no activity associated with the vehicle and was subsequently relieved of his surveillance duty and reassigned to another location to await further instructions. When he received information that two males and a female had entered the vehicle and were now traveling on Route 46 eastbound, he commenced a mobile surveillance of the vehicle, which crossed over the George Washington Bridge and traveled into New York City.
The vehicle traveled onto Henry Hudson Parkway South and then onto Riverside Drive. It next turned onto 116th Street and "eventually" made its way up to 125th Street, where it commenced "squaring the block," which Detective Lucas, based upon his training and experience, described as a counter—surveillance measure by which a motorist travels around a block in an attempt to detect or identify anyone who might be following the vehicle.
The vehicle traveled to 118th Street, where the female passenger exited the vehicle and lingered in the area. The Taurus pulled away and next traveled to 143rd Street, where it was parked and remained for several minutes. The driver then pulled away, traveling to Bradhurst Avenue before driving down 123rd or 124th Street in what Detective Lucas described as a "creeping" manner. The driver of the Taurus parked the car, and the two men exited the vehicle and walked away, out of view of the surveillance.
The two men were gone for approximately forty minutes before returning to the vehicle, leaving the area and returning to 143rd Street where the Taurus was once again parked. The driver, later identified as Cecil Marshall, exited the vehicle and approached an unoccupied P.T. Cruiser parked directly behind the Taurus. Marshall removed a plastic bag from the P.T. Cruiser and returned to the rear of the Taurus where he met his passenger, later identified as defendant, who was near the trunk. Marshall placed the bag in the trunk, closed it, and the two men then walked away. Next, they approached what appeared to be an occupied Grand Marquis, entered the vehicle, and shortly thereafter exited with a plastic bag and returned to the Taurus, in which they placed the plastic bag.
The two men then entered an apartment building, returned to the Taurus, and shortly thereafter drove away, returning to the Capri Inn. The men removed the plastic bags from the vehicle and entered the motel. They remained in the motel room for some time, but eventually exited the room carrying different plastic bags which they placed in the Taurus and then drove away.
After observing the Taurus proceeding at a noticeably slower speed than other vehicles traveling on Route 46 and also changing lanes without signaling, Detective Lucas signaled for the vehicle to stop. Detective Lucas testified he approached the driver's side and identified himself as a police officer while Detective Robert Tilton approached the passenger side, also identifying himself as a police officer. As soon as Marshall rolled down the window, the officer detected an odor of burnt marijuana.
Marshall exited the vehicle at Detective Lucas's request, at which point the detective commenced questioning Marshall regarding his whereabouts. Marshall responded that he had eaten dinner at a friend's home. Detective Lucas advised Marshall that he smelled burnt marijuana, and Marshall indicated that he had previously used marijuana. He verbally consented to the officers searching the vehicle and also executed a consent to search form. The search uncovered no contraband. However, Detective Lucas noticed that "right behind the . . . driver's seat was a folding chair that had a very large cushion attached to it." He elaborated that the cushion "seemed excessively large . . . for the frame and the rest of the chair. It . . . stood out to [him] as being unusual." When he touched the cushion, it was "extremely rigid and [his] fingers [c]ould barely push into the material." A canine dog brought to the scene for purposes of detecting the presence of marijuana appeared to have a strong reaction to the seat cushion. Detective Lucas testified that when the "concealed compartment" within the cushion was opened, although no contraband was inside, "there was an odor of raw marijuana."
Marshall next verbally consented to a search of the motel room but executed the written consent form after officers transported him, in handcuffs, back to the motel room. Marijuana and cocaine were discovered as a result of the search.
In denying defendant's motion to suppress the evidence retrieved from the motel room, the court first stated it would accord "sufficient weight to the police officer's knowledge and experience . . . as well as the rationale [sic] inferences that could be drawn in light of the police officer's expertise." The court also found Detective Lucas "extremely credible" and concluded there was a reasonable and articulable basis to stop the vehicle based upon Marshall's driving. Taking into consideration the evasive responses Detective Lucas received to his questions, the odor of burnt marijuana, the folding chair with the excessively large seat cushion, and the absence of any possessory interest by defendant in the motel, the court concluded that under the totality of the circumstances, the stop and search were justified.
In reviewing a motion to suppress, we will uphold the factual findings underlying a trial court's decision provided the findings are supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 472 (1999). We give no such deference to a judge's legal conclusions. State v. Mann, 203 N.J. 328, 337 (2010).
Police violate no constitutional prohibition against the warrantless search of property where the search is preceded by valid consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973); State v. Johnson, 68 N.J. 349, 353-54 (1975). A valid consent is one that is "'unequivocal and specific' and 'freely and intelligently given.'" State v. King, 44 N.J. 346, 352 (1965) (quoting Judd v. United States, 190 F.2d 649, 651 (D.C. Cir. 1951)). Moreover, consent, to be valid, need not be given solely by the defendant challenging the warrantless search as long as the consenting third party has authority to bind the accused. U.S. v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 249-50 (1974); State v. Farmer, 366 N.J. Super. 307, 314 (App. Div.), certif. denied, 180 N.J. 456 (2004); State v. Miller, 159 N.J. Super. 552, 558-59 (App. Div.), certif. denied, 78 N.J. 329 (1978).
Whether the consent has been given voluntarily is a fact-specific inquiry based upon the totality of the circumstances. State v. Boud, 240 N.J. Super. 171, 178 (App. Div. 1990). See also Schneckloth, supra, 412 U.S. at 248-49, 93 S. Ct. at 2059; 36 L. Ed. 2d at 875; State v. Sugar, 100 N.J. 214, 234 (1985). Factors that tend to support the conclusion that consent was fully, unequivocally, and specifically given include: (1) the consent was given when the accused had no reason to believe that contraband would be discovered during the search; (2) the accused has already admitted guilt prior to consenting to the search; and (3) the accused affirmatively assisted law enforcement officers. King, supra, 44 N.J. at 353.
On the other hand, there are a number of considerations that tend to support the conclusion that the consent was not fully, unequivocally and specifically given. Those factors include: (1) consent was given by one who had already been arrested; (2) consent was secured, notwithstanding a denial of guilt; (3) consent was obtained only after consent to search was initially refused; (4) consent was given although the accused must have known that contraband would be discovered; and (5) consent was given while the accused was handcuffed. Id. at 352-53.
Here, defendant concedes that Marshall, to whom the motel room had been rented, had the authority to consent to the search, but contends Marshall's consent was involuntary. Defendant points to the presence of at least seven detectives during the roadside investigation and search of the motel room. Additionally, defendant notes that when transported back to the motel, both he and Marshall were handcuffed and that they were detained for at least two hours before any suspected drugs were found. We disagree with defendant's contention.
The prior observations of defendant, Marshall and the female while traveling throughout New York City, the later strong odor of burnt marijuana emanating from the Taurus, and the discovery of the hidden compartment within the chair cushion, supported a reasonable suspicion that justified the request for consent to search. Once consent was given, it was entirely reasonable, for safety reasons, to handcuff the two men while police transported them back to the motel.
The handcuffs, although restraints, were a necessary safety precaution. Additionally, the fact that no contraband was found in the vehicle does not render the contraband investigation at the motel invalid, given the factors known to the investigators before they proceeded to the motel. Nor are we persuaded that the factual record here is akin to the circumstances present in Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983), and State v. Dickey, 152 N.J. 468 (1998), as defendant urges.
The defendant in Royer, supra, was subjected to questioning in a small interrogation room, was confronted by police with inconsistencies in his explanation related to his actions, and was not told he could refuse consent. The Court found police improperly used the defendant's detention to build their case and gather additional evidence against the defendant, and as such, any consent produced during the illegal detention was invalid. Id. at 507-08, 103 S. Ct. at 1329, 75 L. Ed. 2d at 243. Neither defendant nor Marshall were handcuffed when the consent was obtained, nor were they continually confronted with a barrage of questions.
In Dickey, supra, officers detained the defendant for approximately four hours after stopping the vehicle in which he was a passenger. 152 N.J. at 472-73. Prior to detaining the suspects, the only factors police could consider for purposes of broadening their inquiries were suspicious answers to their questions and visible nervousness of the vehicle's occupants. Id. at 479-480. Those limited factors are clearly distinguishable from the numerous factors, as we have previously discussed, the officers took into consideration here before requesting Marshall's consent to search the motel room. See State v. Judge, 275 N.J. Super. 194, 201-03 (App. Div. 1994) (holding that the odor of burnt marijuana emanating from a vehicle is enough to provide probable cause to initiate a warrantless search); see also State v. Nishina, 175 N.J. 502, 515-17 (2003) (holding the smell of marijuana on defendant's person, the discovery of drug paraphernalia on defendant's person, and plain view observation of a plastic bag protruding from the interior console of the car supplied the police with probable cause to search the defendant's vehicle). Moreover, Marshall, before consenting to the search of the motel and before being handcuffed for transportation back to the motel, admitted to using marijuana and had already consented - a consent which defendant does not challenge - to the search of the vehicle. Therefore, the circumstances upon which the trial court found the consent to be valid were supported by substantial credible evidence in the record.
II.
As to the remaining points raised, the State agrees the matter should be remanded to the trial court to modify the Judgment of Conviction (JOC) to reflect a twenty-four month license revocation. In so far as defendant's claim that the sixteen-year term of incarceration, with an eight-year period of parole ineligibility, is excessive, this contention is without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
In our limited role in reviewing the sentence imposed, we are satisfied the court engaged in the appropriate statutory weighing analysis, N.J.S.A. 2C:44-1(a) and (b), before concluding there were no mitigating factors. The disparity in sentencing as between defendant and Marshall was not unjustifiable since the sentencing judge found, as a mitigating factor, Marshall's cooperation with authorities. Although similarly situated in terms of the aggravating factors, the absence of any mitigating factors as to defendant persuades us that the disparity in sentencing was not so excessive as to conclude the sentence imposed was unjustifiable. State v. Roach, 146 N.J. 208, 232-34 (1996).
Affirmed, except for remand to modify the JOC to reflect a twenty-four-month aggregate revocation of defendant's driving privileges. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION