Opinion
DOCKET NO. A-4841-13T1
06-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MALCOLM C. HAGANS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel; Linda Rinaldi, Legal Assistant, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 12-08-0996. Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel; Linda Rinaldi, Legal Assistant, on the brief). PER CURIAM
Defendant Malcolm C. Hagans appeals from a May 2, 2014 judgment of conviction for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Defendant moved to suppress the seized firearm. When his motion was denied, defendant entered a guilty plea pursuant to a negotiated agreement. The judge accepted the plea and, thereafter, sentenced defendant to a five-year term of imprisonment, with one year of parole ineligibility, along with applicable fines and penalties.
On appeal, defendant raises the following arguments:
POINT I
THERE WAS NO REASONABLE SUSPICION TO CONDUCT A TRAFFIC STOP BECAUSE THE STATE TROOPER COULD NOT HAVE REASONABLY BELIEVED THAT THE DRIVER OF THE CAR HAD VIOLATED ANY APPLICABLE TRAFFIC LAWS.
POINT II
SHONSHERAY CHANDLER DID NOT VOLUNTARILY GIVE CONSENT FOR THE STATE TROOPERS TO SEARCH HER VEHICLE, RENDERING THE PURPORTED CONSENT SEARCH IN THIS CASE INVALID.
POINT III
THE TRIAL COURT'S ENTIRELY UNSUPPORTED CONCLUSION THAT STATE V. PENA-FLORES IS NOT APPLICABLE TO THIS CASE IS SIMPLY INCORRECT.
Following our review of the record, in light of the facts and applicable law, we affirm, concluding the motor vehicle stop preceding arrest was lawful, the driver voluntarily consented to the search of the vehicle, and the motion to suppress was properly denied. Consequently, we decline to address defendant's Pena-Flores argument under Point III. R. 2:11-3(e)(2).
During the suppression motion, by agreement, the sole evidence presented was the recorded video footage downloaded from the MVR (dash cam) system in the arresting State Trooper's patrol car. We have reviewed the video from which we discern the following facts.
On March 30, 2012, defendant sat in the front passenger seat of a 2002 Blue Mercury Sable with New York plates, heading north on Interstate 295 (295) in Westhampton Township. The vehicle was owned by the driver, Shonsheray Chandler, and her six-year-old daughter sat in the rear seat.
New Jersey State Trooper John Faust was also traveling on 295 in the middle left lane of the four-lane highway. Trooper Faust observed Chandler's Sable pass him on the right, traveling in the middle right lane, then move to the outer right lane without using a turn signal. Further, the Sable's right rear taillight appeared damaged, which Trooper Faust believed was inoperable. Trooper Faust maneuvered his car behind Chandler and turned on his overhead lights to effectuate a traffic stop. Chandler quickly responded by pulling onto the shoulder of an exit ramp; she used her turn signal.
Trooper Faust approached the passenger's side window and requested Chandler produce her driver's license, registration and proof of insurance. As he waited for the documents, Trooper Faust was close to the window and then addressed defendant, stating "Hey bro, can I get you to hang up the phone real quick?" Defendant paused, stating, "Why can't I be on the phone?" Trooper Faust requested defendant step out of the car. Defendant complied and was handcuffed. Trooper Faust called for backup, administered Miranda warnings, and advised defendant he was under arrest because the trooper "smelled marijuana in the vehicle." Defendant denied smoking or possessing marijuana. He was taken by another trooper, who responded as backup, and placed in a patrol car.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Once defendant was secure, Trooper Faust walked around to the driver's side door and asked Chandler to step out of the car. He explained he smelled marijuana and she too was under arrest. Trooper Faust administered Miranda warnings, handcuffed Chandler and placed her in the rear of his patrol car. Chandler's daughter was placed in the patrol car next to her mother.
Trooper Faust then questioned Chandler; these questions were recorded by the patrol cars' MVR cameras. Trooper Faust suggested he wanted to "make this easy," and get Chandler "in and out as quick as possible." He asked if Chandler knew defendant had marijuana in his possession or if he recently smoked it, to which she responded, "no." Trooper Faust suggested Chandler's consent to allow a search of the vehicle would expedite the process and he retrieved a consent-to-search form from the trunk of his patrol car. After a delay of several minutes, he read the form aloud to Chandler, which informed her of the right to refuse and withdraw consent, if given. When finished, he again asked her if she wanted to consent to a search of her car. She replied "no" and shook her head. Trooper Faust responded to Chandler's rejection by stating, "I know, but at this time . . . we're just going to apply for a search warrant, and that's just going to prolong the inevitable." Seconds later, Chandler said "go ahead." Trooper Faust asked: "Are you sure?" and she replied, "yeah." He apologized, stating, "I'm sorry, [the process] didn't used to be like this."
Prior to commencement of a search, Trooper Faust confirmed Chandler's consent by again reading aloud the consent-to-search form. When asked for her consent, Chandler responded affirmatively. Trooper Faust reiterated Chandler had previously refused to grant consent and he sought reassurance she had changed her mind. She again responded affirmatively.
The search yielded a small amount of marijuana in a plastic bag, which included a partially burned joint, in the side compartment of the passenger-side door, and a .22 caliber pistol, found behind the front passenger seat. Trooper Faust questioned Chandler and she denied any knowledge of the firearm.
Defendant, Chandler, and her daughter were transported to the State Police barracks in Bordentown. Defendant admitted he owned the gun and marijuana. Chandler was not charged and was released.
Defendant moved to suppress the seized firearm, arguing Chandler's consent was not voluntary. During the hearing, no testimony was offered by the State or defendant. Following his review of the video evidence, the trial judge concluded the motor vehicle stop was justified. He found probable cause was supported by the trooper's observation Chandler failed to signal as she changed lanes, N.J.S.A. 39:4-126, and the taillight was "out." The judge also concluded the warrantless search was constitutional based on Chandler's consent, after considering factors enumerated in State v. King, 44 N.J. 346, 352-53 (1965), stating:
after having reviewed the video, looked at the factors to be applied in this case, it appears to the [c]ourt that the consent given was voluntary by the driver of the vehicle. Even if the consent was not deemed or a reviewing court that looks at this believes the consent was not voluntary, as an additional basis for this [c]ourt's decision it does not appear that that consent that was given was tainted in any way by the officer's statement. This is not a situation where you have an officer
badgering, if you will, the driver trying to get consent. The officer made one statement, made no further discussions with the driver. The driver voluntarily without any type of coercion or taint did give consent. So on all those bases the [c]ourt finds that the State has proven that the consent search was valid and the [c]ourt will deny the motion to suppress.After defendant entered his guilty plea, this appeal followed.
Generally, "[a]n appellate court reviewing a motion to suppress 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. Rockford, 213 N.J. 424, 440 (2013) (brackets omitted) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). "Thus, appellate courts should reverse only when the trial court's determination is 'so clearly mistaken that the interests of justice demand intervention and correction.'" State v. Gamble, 218 N.J. 412, 425 (2014) (quoting State v. Elders, 192 N.J. 224, 244 (2007)).
"However, when the trial court's sole basis for its findings and conclusions is its evaluation of a videotaped interrogation, there is little, if anything, to be gained from deference." State v. Diaz-Bridges, 208 N.J. 544, 565 (2011). That is, if the trial court's decision is based solely on an evaluation of a video recording and is "not dependent on any testimony uniquely available to the trial court," we are not required to defer to the trial court, but may reach our own findings based on our independent review of the video recording. Id. at 566; see also State v. Baum, 199 N.J. 407, 423 n.4 (2009); State v. Hubbard, 222 N.J. 249, 269 (2015). Further, we afford no deference to a trial court's "interpretation of the law," as "[l]egal issues are reviewed de novo." State v. Vargas, 213 N.J. 301, 327 (2013).
We first consider defendant's challenge to the traffic stop. Defendant argues Trooper Faust lacked reasonable suspicion to conduct a traffic stop, arguing the MVR recording does not demonstrate Chandler violating any traffic laws. We disagree.
The United States and New Jersey Constitutions permit a brief investigative stop of a vehicle based on reasonable suspicion "that an offense, including a minor traffic offense, has been or is being committed." State v. Amelio, 197 N.J. 207, 211 (2008) (quoting State v. Carty, 170 N.J. 632, 639-40, modified by 174 N.J. 351 (2002)), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). An investigatory stop "is valid if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." State v. Mann, 203 N.J. 328, 338 (2010) (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). "The burden is on the State to demonstrate by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion." Amelio, supra, 197 N.J. at 211.
Reasonable suspicion of "[a] motor vehicular violation, no matter how minor, justifies a stop [even] without any reasonable suspicion that the motorist has committed a crime or other unlawful act." State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div. 2011). "To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor-vehicle violation occurred." State v. Locurto, 157 N.J. 463, 470 (1999). That is, "the State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor-vehicle offense." State v. Heisler, 422 N.J. Super. 399, 413 (App. Div. 2011) (quoting State v. Williamson, 138 N.J. 302, 304 (1994)). Also, the State must show an officer's belief a traffic violation actually occurred must be objectively reasonable. State v. Puzio, 379 N.J. Super. 378, 383 (App. Div. 2005). However, the "fact that information an officer considers is ultimately determined to be inaccurate . . . does not invalidate a seizure." State v. Pitcher, 379 N.J. Super. 308, 318 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).
Here, to justify the stop, the State demonstrated Trooper Faust possessed a reasonable suspicion Chandler committed a motor vehicle offense. Locurto, supra, 157 N.J. at 470; Williamson, supra, 138 N.J. at 305-06; see also State v. Moss, 277 N.J. Super. 545, 546-47 (App. Div. 1994) (finding reasonable suspicion for violation of N.J.S.A. 39:4-126 existed where defendant made left turn without signaling when other "light" traffic was nearby). Two traffic offenses were cited as justifying the stop: (1) the vehicle's rear passenger-side taillight was not illuminated, N.J.S.A. 39:3-61(a), -66; and (2) the vehicle changed lanes without signaling, N.J.S.A. 39:4-126.
The video demonstrates Chandler changed lanes without signaling, in violation of N.J.S.A. 39:4-126, and that her taillight assembly was damaged. Defendant argues no other traffic was affected by the lane change, and although the taillight assembly was visibly damaged, no evidence supports a conclusion the taillight was inoperable: the lights were not on during this daytime stop and both the brake light and left turn signal illuminated when activated.
The trial judge correctly noted the MVR video shows Chandler's vehicle changed lanes on a four-lane State highway, in the midst of traffic, without signaling. The act occurred in the line of sight of the officer, providing sufficient evidence to support Trooper Faust's reasonable belief Chandler had ignored the motor vehicle laws, and providing reasonable suspicion justifying the stop. Amelio, supra, 197 N.J. at 211. The officer's reasonable reliance on the visible damage to the taillight assembly is not defeated by the fact the damage was shown not to prevent operation. Pitcher, supra, 37 9 N.J. Super. at 318. It was objectively reasonable to conclude the taillight damage related to the lack of signal use. The fact the light worked will not invalidate the stop. Heisler, supra, 422 N.J. Super. at 413.
We reject defendant's reliance on a single statement extracted from State v. Williamson, supra, 138 N.J. at 303, which states N.J.S.A. 39:4-126 "does not require that a signal be given whenever a lane change is made." The Court's holding was "the State . . . need not establish that the move actually affected traffic." Id. at 304.
Constitutional precedent requires only reasonableness on the part of the police, not legal perfection. Therefore, the State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor-vehicle offense. The Attorney General emphasized, and we agree, that "the trooper needed only a reasonable and articulable suspicion that defendant's failure to signal may have affected other traffic * * *." "[O]ther traffic" could include a trooper's vehicle.
[Ibid. (alterations in original)].
We also reject defendant's challenge to the constitutionality of the search. The trial judge's conclusion the State met its burden by proving Chandler was not coerced is supported by the substantial credible evidence in the record.
"The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protect against warrantless searches." State v. Keaton, 222 N.J. 438, 447 (2015); State v. Witt, 223 N.J. 409, 421-22 (2015). Warrantless searches are presumptively unreasonable. State v. Moore, 181 N.J. 40, 44 (2004) ("A warrantless search [or seizure] is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." (alteration in original) (quoting State v. Cooke, 163 N.J. 657, 664 (2000))). "[T]he State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure 'falls within one of the few well-delineated exceptions to the warrant requirement.'" Elders, supra, 192 N.J. at 246 (quoting Pineiro, supra, 181 N.J. at 19-20); see also State v. Hill, 115 N.J. 169, 173-74 (1989) (citing eleven possible exceptions to the warrant requirement).
Consent is a well-established exception to the warrant requirement. State v. Coles, 218 N.J. 322, 337 (2014). Prior to seeking consent to search a car, the requesting officer must have reasonable suspicion an individual has engaged in, or is about to engage in, criminal activity. Carty, supra, 170 N.J. at 647. Also, the State must prove the consent was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 2059, 36 L. Ed. 2d 854, 875 (1973); State v. Sugar, 100 N.J. 214, 234 (1985) ("A valid consent to a search must be clear, knowing, voluntary, unequivocal, and express."). In this regard, the person giving consent must know he or she has the right to refuse consent. State v. Johnson, 68 N.J. 349, 353-54 (1975).
Recognizing the fact-intensive inquiry associated with every consent analysis, the New Jersey Supreme Court in State v. King, supra, 44 N.J. at 352, set forth factors to assist a judge's determination of voluntariness. These factors were identified as "tending to show that the consent was coerced":
(1) that consent was made by an individual already arrested; (2) that consent was obtained despite a denial of guilt; (3) that consent was obtained only after the accused had refused initial requests for consent to search; (4) that consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered; [and] (5) that consent was given while the defendant was handcuffed.
Among those factors which courts have considered as tending to show the voluntariness of the consent are: (1) that consent was given where the accused had
reason to believe that the police would find no contraband; (2) that the defendant admitted his guilt before consent; (3) that the defendant affirmatively assisted the police officers.The Court elaborated:
[Id. at 352-53 (citations omitted).]
Since the factors mentioned above are only guideposts to aid a trial judge in arriving at his conclusion, they cannot purport to lay down rules of law which preclude him [or her] from determining the issue of voluntariness of consent by his [or her] consideration of the totality of the particular circumstances of the case before him [or her]. Every case necessarily depends upon its own facts. Thus, the existence or absence of one or more of the factors mentioned above may be of great significance in the circumstances of one case, yet be of slight significance in another.
[Id. at 353.]
Defendant argues Chandler's consent was coerced because she was under arrest, handcuffed and in custody; she denied she possessed marijuana or a weapon; and refused consent when first asked. Defendant also emphasizes Chandler's young daughter's presence pressured her to issue consent.
Defendant's argument isolates various facts without acknowledging the evidence and allows the trial judge and this court to view all events exactly as they unfolded and as captured on the video recording. Chandler's actions and behaviors as depicted on the videotape are critical to our review. See Diaz-Bridges, supra, 208 N.J. at 565 (stating a court may observe the video of a defendant to discern the voluntariness of statements during a custodial interrogation). Understanding each case "depends upon its own facts" and "the existence or absence of one or more of the factors" may be of varied significance in different matters, King, supra, 44 N.J. at 353, we cannot conclude the trial judge erroneously found Chandler's consent was voluntarily issued.
Trooper Faust did not pressure or pester Chandler; he informed her of her rights and facts surrounding the expectations the police would secure a warrant. His statements were nothing more than "a fair prediction of events that would follow, [and] not a deceptive threat made to deprive [Chandler] of the ability to make an informed consent." State v. Cancel, 256 N.J. Super. 430, 434 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993).
Probable cause for issuance of a search warrant may be based on the detected smell of burnt marijuana emanating from the car. State v. Walker, 213 N.J. 281, 290 (2013); State v. Birkenmeier, 185 N.J. 552, 563 (2006); State v. Myers, 442 N.J. Super. 287, 296 (App. Div. 2015), certif. denied, 224 N.J. 123 (2016); State v. Judge, 275 N.J. Super. 194, 196-97 (App. Div. 1994) (finding the "smell of burnt marijuana, by a trained and experienced State Trooper, emanating from the passenger compartment of a legally stopped motor vehicle, created probable cause to believe that a violation of law had been or was being committed."). We acknowledge jurisprudence concluding the smell of marijuana furnishes probable cause may be evolving in light of the adoption of so called "medical marijuana" statutes, such as New Jersey's Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:61-1 to -16, which protects a qualified patient from arrest and prosecution for authorized marijuana use, N.J.S.A. 24:61-6, -8, and other statutes legalizing marijuana use under certain conditions. See State v. Sisco, 359 P.3d 1 (Ariz. Ct. App. 2015) (2-1 decision) (holding the scent of marijuana, standing alone, is insufficient evidence of criminal activity to furnish probable cause), appeal docketed, No. CR-15-0286-PR (Ariz. March 15, 2016). But see State v. Myers, 442 N.J. Super. 287, 290 (App. Div. 2015) (acknowledging but declining to address the possible effect of medical marijuana legislation on finding probable cause to search a vehicle without a warrant by scent of marijuana, standing alone), certif. denied, 224 N.J. 123 (2016). --------
Despite being under arrest, Chandler appeared at ease throughout the interaction with Trooper Faust, who read the consent to search form aloud to her twice. No actions or statements uttered by Trooper Faust can be characterized as threatening, badgering or misleading. Chandler listened to the trooper and calmly considered her options as presented. She did not demonstrate behavior showing her will was "overborne"; neither she nor her daughter demonstrated distress. Nothing suggests she was fearful or otherwise unable to make a reasoned determination. See State v. Chapman, 332 N.J. Super. 452, 467 (App. Div. 2000).
Trooper Faust also sought clarification to verify Chandler changed her mind when she agreed to allow the search of her vehicle. Chandler responded affirmatively multiple times. Following our review, we conclude, as did the trial judge, the totality of the evidence shows Chandler voluntarily issued her consent. See State v. Carvajal, 202 N.J. 214, 226 (2010) ("To act voluntarily is to act with a free and unconstrained will, a will that is not overborne by physical or psychological duress or coercion.").
In light of our conclusion upholding the traffic stop and warrantless search, we need not examine defendant's final argument challenging the trial judge's finding the search was valid on alternate grounds.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION