Opinion
DOCKET NO. A-2770-12T1
04-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TARSHON A. AWKWARD, Defendant-Appellant.
John P. McGovern, attorney for appellant. John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-04-913. John P. McGovern, attorney for appellant. John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Tarshon A. Awkward appeals from his judgment of conviction after his guilty plea. Defendant argues that the trial court should not have denied his motion to suppress evidence because police lacked a warrant and consent, and that his negotiated sentence was excessive. We affirm.
At approximately 2:00 a.m. on Saturday, December 18, 2010, defendant encountered a sobriety checkpoint while driving on Route 46 in Ridgefield Park. "Greeter" Sergeant Joseph Rella stopped and spoke with every driver as they entered the checkpoint, directing every fifth vehicle to a secondary area for investigation. Sergeant Rella also selected vehicles if he detected a motor vehicle violation or "something out of the ordinary, whether it be odor of alcohol or a narcotic." Upon smelling the "very strong odor of marijuana" coming from defendant's Ford Focus, Sergeant Rella directed defendant's vehicle out of line for further investigation by other officers.
In the secondary area, Patrolman Robert DiStasi approached the driver's side of defendant's vehicle, and requested defendant's license, registration, and proof of insurance, which defendant provided. Patrolman DiStasi testified that he detected the odor of marijuana while standing outside the driver's side window. During the exchange, defendant indicated that the vehicle was rented. Based on the marijuana odor, the time of night, and the vehicle's status as a rental, Patrolman DiStasi directed defendant to step out and move to the front of the vehicle. Patrolman DiStasi asked if defendant was carrying any weapons, to which defendant responded in the negative. Patrolman DiStasi proceeded to "pat [defendant] down," confirming that he was unarmed.
Officer DiStasi testified that, in his experience, "a lot of rental vehicles are used for drug trafficking" because drug traffickers believe "when the license plate of the rental vehicles are run it doesn't raise any flags."
After "advis[ing defendant] of the odor [of marijuana] which was emanating from the vehicle," Patrolman DiStasi asked defendant if there was "anything within the vehicle." Defendant responded that there was not, but admitted he had previously smoked marijuana in the vehicle. Patrolman DiStasi then asked defendant for consent to search the vehicle. When defendant asked, "what if I say no" Patrolman DiStasi advised defendant:
due to the odor emanating from the vehicle [Patrolman DiStasi] would in turn contact the Bergen County Police Department and request for a K-9 Unit to respond to the scene. They would do an exterior sweep of the vehicle and ultimately upon their finding [Patrolman DiStasi] would apply for a search warrant.
Patrolman DiStasi testified defendant then said, "well, you're going to search it anyway so you can search it." Patrolman DiStasi directed defendant to sit on the curb with his ankles crossed. Sergeant Arthur Jensen stood next to defendant in order to prevent defendant from leaving and for ease of communication in case defendant wished to end his consent to the search. Patrolman DiStasi then retrieved a Consent to Search form, filled it out, and read it to defendant. The form advised defendant of his "constitutional rights to refuse to give [his] consent," and "to stop the search at any time," and that police were seeking authorization to search "all compartments, containers, and effects" within the vehicle. Defendant stated that police could search the vehicle, but that he was not going to sign anything. At that point, Captain John DiNiro joined the conversation to again request consent from defendant. Defendant stated "[y]ou're going to search the car anyway so you can search the car but I'm not going to sign anything."
Patrolman DiStasi and Captain DiNiro proceeded to search the vehicle. On the center console, inside a container in a cup holder, Patrolman DiStasi found a cigarette, or "blunt," containing "greenish brown vegetation believed to be marijuana." Using defendant's keys to open the trunk, Patrolman DiStasi found a black and red backpack. Inside the backpack's main compartment, beneath a towel, Patrolman DiStasi discovered a loaded .45 caliber handgun. Patrolman DiStasi immediately handcuffed defendant, placed him under arrest, and escorted him to a patrol vehicle.
Defendant was charged with second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b), and second-degree possession of a firearm by a previously convicted person, N.J.S.A. 2C:39-7(a).
Defendant filed a motion to suppress the evidence obtained from the search of his vehicle. On April 18, 2012, after considering testimony from Sergeant Rella, Patrolman DiStasi, Captain DiNiro, and Sergeant Jensen, Judge James J. Guida held the search valid and the evidence seized admissible.
Pursuant to a negotiated agreement, on August 7, 2012, defendant pled guilty to second-degree possession of a handgun without a permit. The parties agreed the State would move to dismiss the charge of second-degree possession of a firearm by a previously convicted person, and recommend a sentence of eight years in prison, with a period of four years of parole ineligibility. Defendant received the recommended sentence.
Defendant appeals the January 4, 2013 judgment of conviction, raising the following issues:
I. THE WARRANTLESS AND CONSENTLESS SEARCH OF MR. AWKWARD'S VEHICLE WAS INVALID AND THEREFORE ANY EVIDENCE DISCOVERED DURING THAT SEARCH SHOULD BE SUPPRESSED.
II. THE COURT IMPOSED AN EXCESSIVE SENTENCE THAT THIS COURT SHOULD VACATE AND REMAND FOR RESENTENCING.
I.
Defendant first asserts that the trial court erred in denying his motion to suppress because he never consented to the search of his vehicle. In addressing this argument, we must hew to our "deferential standard of review," and "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) (internal quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original; internal quotation marks omitted). "In particular, the appellate court must defer to the credibility determinations of the trial court between competing factual testimony." State v. Jefferson, 413 N.J. Super. 344, 349 (App. Div. 2010). "The issue of consent . . . is basically factual, to be determined in the context of all the relevant circumstances." State v. Sugar, 108 N.J. 151, 174 (1987).
Defendant no longer challenges the validity of the sobriety checkpoint. See State v. Carty, 170 N.J. 632, 652, mod. on other grounds, 174 N.J. 351 (2002); State v. Reynolds, 319 N.J. Super. 426, 433-34 (App. Div. 1988). Defendant also does not challenge Sergeant Rella's diversion of defendant's vehicle based on the smell of raw marijuana in the vehicle.
A.
The Supreme Court has held that "law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle." Carty, supra, 170 N.J. at 635. However, the Court limited its holding "to consent searches pursuant to a stop for a traffic infraction." Id. at 654. The Court emphasized its holding should not be "overextend[ed]" to "roadblocks, checkpoints and the like." Id. at 652.
In any event, defendant does not dispute that Patrolman DiStasi, who also detected the odor of marijuana coming from the vehicle, had reasonable suspicion to request consent to search. The trial court properly found that defendant's admission he had previously smoked marijuana in the vehicle, "the strong odor of marijuana emanating from the vehicle," the late hour, and defendant's rental of the vehicle, "taken together, provide sufficient facts to establish reasonable suspicion." Indeed, the officer had more than reasonable suspicion. "'New Jersey courts have recognized that the smell of marijuana itself constitutes probable cause[.]'" State v. Walker, 213 N.J. 281, 290 (2013).
B.
Defendant argues the warrantless search did not fall within any exceptions to the warrant requirement" because he did not voluntarily consent.
A search without a warrant is presumptively unreasonable. State v. Wilson, 178 N.J. 7, 12 (2003). "[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,'" such as consent. State v. Elders, 192 N.J. 224, 246 (2007); see United States v. Matlock, 415 U.S. 164, 177 n.14, 94 S. Ct. 988, 996 n.14, 39 L. Ed. 2d 242, 253 n.14 (1974) ("the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence"). Searches "conducted pursuant to consent" are a well-established exception to the warrant requirement. State v. Domicz, 188 N.J. 285, 305 (2006).
Recognizing the fact-intensive inquiry associated with a consent analysis, the Supreme Court in State v. King, 44 N.J. 346, 352 (1965), set forth factors to determine coercion and voluntariness. Domicz, supra, 188 N.J. at 308. The Court listed the following factors "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.The Court further listed "factors which courts have considered as tending to show the voluntariness of the consent," including "(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; [and] (3) that the defendant affirmatively assisted the police officers." Id. at 353 (citations omitted). However, the Court cautioned against reliance on "the existence or absence of one or more of the above factors." Ibid.
[King, supra, 44 N.J. at 352-53 (citations omitted).]
The trial court applied the King factors to determine the voluntariness of defendant's consent. The court found none of the factors which would tend to indicate coercion. With respect to factor one, "the consent was made by an individual already arrested," id. at 352, the trial court found "defendant was not under arrest at the time he consented," rather, he was detained at the checkpoint.
Nonetheless, defendant argues that neither "Patrolman DiStasi nor any other officer on the scene ever indicated to [defendant] that he was entitled to leave." Defendant's argument misses the mark. During "an investigative stop or detention," the suspect is seized and is "'not free to leave.'" State v. Shaw, 213 N.J. 398, 410 (2012) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980)).
However, "an investigative stop becomes a de facto arrest when the officers' conduct is more intrusive than necessary for an investigative stop." State v. Dickey, 152 N.J. 468, 478 (1998) (internal quotation marks omitted). "Although there are no 'bright line' tests to guide us, courts have identified several factors to aid in the analysis." Id. at 478-79; accord State v. Bernokeits, 423 N.J. Super. 365, 372-73 (App. Div. 2011). One factor is duration, particularly whether the stop "involves 'delay unnecessary to the legitimate investigation of the law enforcement officers.'" Dickey, supra, 152 N.J. at 479 (internal quotation marks omitted) (quoting United States v. Sharpe, 470 U.S. 675, 687, 105 S. Ct. 1568, 1576, 84 L. Ed. 2d 605, 616 (1985)). "Another factor is 'the degree of fear and humiliation that the police conduct engenders.'" Ibid. (citation omitted). Additional factors include "transporting a suspect to another location or isolating him from others . . . . handcuffing him, or confining him in a police car." Ibid. (citation omitted).
Here, before obtaining defendant's consent to search, the officers did not handcuff, confine, isolate, frighten, or humiliate him, or transport him to another location. They conducted a legitimate investigation with no evidence of unnecessary delay. The trial court properly found that defendant was not under arrest for the purposes of the King test.
We consider together the second coercion factor, "that consent was obtained despite a denial of guilt" and the second voluntariness factor, "that the defendant admitted his guilt before consent." King, supra, 44 N.J. at 352, 354. The trial court found that because defendant stated he smoked marijuana in the vehicle, he admitted, rather than denied, guilt before consenting. Such a finding was not clearly erroneous.
The third coercion factor, "that consent was obtained only after the accused had refused initial requests for consent to search," does not clearly apply here. Id. at 352. When Patrolman DiStasi asked defendant, he replied "what if I say no?" Defendant's question was followed by his oral consent to the search, and then his refusal to sign the written consent form, while continuing to give consent to the search. The trial court found that defendant's question was "merely an inquiry, and not a refusal," and therefore defendant "did not 'verbally' refuse to permit the search." The trial court's finding that defendant never refused consent was not clearly erroneous.
Defendant's refusal to sign the consent form holds little weight in light of his repeated oral statements. The trial court found "all of the state's witnesses to be credible" in their testimony concerning defendant's oral consent. If anything, therefore, refusal to sign the consent form is further evidence defendant was willing and able to resist coercion. See Zerbe v. Dep't of Transp., Bureau of Driver Licensing, 676 A.2d 294, 296 (Pa. Commw. 1996) (after oral consent, refusal to sign a hospital chemical test form on a DUI was not withdrawal of consent); Perez v. State, 536 So. 2d 359, 360-61 (Fla. Dist. Ct. App. 1988) (given credible state witnesses, consent was valid notwithstanding the defendant's insistence that he neither orally consented, nor signed the consent form).
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We next consider the fourth coercion factor, "that consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered," and the first voluntariness factor, "that consent was given where the accused had reason to believe that the police would find no contraband." Id. at 352-53. Here, the trial court said it could not "make a finding that [defendant] knew the weapon would have been discovered during the search of the vehicle." Indeed, the contraband was not readily apparent in the vehicle. Defendant had a small amount of marijuana inside a cigarette in a container in his cup holder, and a well-hidden handgun in his trunk, within a backpack, under a towel. The absence of a finding under these circumstances is not clearly erroneous.
Neither the fifth coercion factor nor the third voluntariness factor are in dispute on appeal. See ibid. The trial court properly found that "defendant was not handcuffed at the time he gave verbal consent," and there was no evidence that defendant attempted to aid the officers in their search. Accordingly, none of the King factors suggesting coercion applied here, and one King factor supported the voluntariness of defendant's consent. Based on the King factors, the trial court properly found that there was no evidence of coercion and that defendant voluntarily consented to the search.
Defendant further argues that his consent was not given "knowingly." The touchstone of knowing consent is whether "the individual giving consent knew that he . . . 'had a choice in the matter.'" Carty, supra, 170 N.J. at 639. New Jersey "requires the State to prove, as a prerequisite to a lawful consent search, that a person have knowledge of his right to refuse to give consent." Elders, supra, 192 N.J. at 240-41. New Jersey courts must consider "whether a person has knowingly waived his right to refuse to consent to the search." Domicz, supra, 188 N.J. at 308.
The trial court found "the written Consent to Search form was read aloud to defendant," and "defendant appeared to understand the form and his rights regarding the proposed search." The trial court properly found defendant "knew that he had the right to refuse consent because the Consent to Search form contained language informing him of that right." Thus, defendant's consent was knowing.
Furthermore, defendant made his decision to consent accurately knowing the alternatives. In response to defendant's question, "[w]hat if I say no," Patrolman DiStasi stated that he would "request for a K-9 Unit to respond to the scene" and based "upon their finding, he would apply for a search warrant." The trial court found that Patrolman DiStasi gave "a statement of fact regarding law enforcement procedures."
In State v. Cancel, 256 N.J. Super. 430, 433 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993), an airport drug dog alerted to drugs in a suitcase. The police asked the defendant to consent to the search of the bag, telling her "that a dog trained to sniff narcotics had reacted positively to her bag," and "advising her that she could refuse but that if she did they would detain her until they obtained a search warrant." Id. at 432-33. We held that "the officers' comment to defendant that she would be detained while they obtained a search warrant was a fair prediction of events that would follow, not a deceptive threat made to deprive her of the ability to make an informed consent." Id. at 434. We also upheld the trial judge's finding "that defendant voluntarily consented to the search in acceptance of the fact that a lawful search was inevitable." Ibid.
Here, defendant's consent was similarly voluntary. It was the result of his free choice. See ibid. Indeed, that choice was more favorable and less "discomfiting" than the choice in Cancel, ibid., because here a drug dog had not alerted to drugs in the car, giving defendant a possible hope that no search would occur if he refused consent. In any event, given defendant's knowledge of his right to consent, and the accuracy of Patrolman DiStasi's statement, the trial court properly found defendant's consent was knowing and voluntary.
Defendant also argues that he did not consent to the full extent of the search. He contends that even if he consented to a search of the inside of the vehicle, it was unreasonable to suppose his consent would extend to a backpack in the trunk. The scope of a search based on oral consent is derived from objective reasonableness, that is, what "'the typical reasonable person [would] have understood by the exchange between the officer and the suspect.'" State v. Davila, 203 N.J. 97, 124 n.9 (2010) (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04, 114 L. Ed. 2d 297, 302 (1991)).
Here, defendant repeatedly stated that the officer could "search the car." "'[I]t is objectively reasonable for the police to conclude that [such] general consent to search [a] car include[s] consent to search containers within that car.'" State v. Hampton, 333 N.J. Super. 19, 29-30 (App. Div. 2000) (quoting Jimeno, supra, 500 U.S. at 251, 111 S. Ct. at 1804, 114 L. Ed. 2d at 303). Further, Patrolman DiStasi read the consent form aloud, informing defendant the search would include "all compartments, containers, and effects" within the vehicle.
Patrolman DiStasi also informed defendant that he could "stop the search at any time." State v. Powell, 294 N.J. Super. 557, 561 (App. Div. 1996). Moreover, the two police officers gave defendant the "opportunity to terminate the search or limit the scope of the search into the trunk." Hampton, supra, 333 N.J. Super. at 30. Defendant sat on the roadside curb approximately five to six feet from the search, and never objected to the scope of the search, nor did he rescind his consent.
The situation here bears little relation to the case defendant cites, Padilla v. Miller, 143 F. Supp. 2d 453, 470-71 (M.D. Pa. 1999), which held a search of the defendant's trunk is invalid where the officer chose not to use the consent form, and did not tell defendant "the purpose of the search, what he was looking for, or that he intended to search the luggage and/or any contents of containers found." Here, Patrolman DiStasi used the consent form and indicated that the purpose of the search was to locate the source of the marijuana odor. Defendant knowingly and voluntarily consented to the entire extent of the search.
II.
Defendant claims that his sentence is excessive because he was "a law abiding citizen" for "several years prior" to his arrest. Indeed, the trial court found mitigating factor seven, that defendant "led a law-abiding life for a substantial period of time," N.J.S.A. 2C:44-1(b)(7), because there was a "break for several years where [defendant] apparently lived a law-abiding life." However, the trial court also considered defendant's "four prior convictions" and "active warrant." The trial court balanced the factors and found "that the [three] aggravating factors substantially outweigh[ed] the [one] mitigating factor[]." The court's findings of aggravated factors three, six, and nine were supported by "competent, credible evidence in the record," and the court included the relevant factors in the "deliberative process." State v. Case, 220 N.J. 49, 64 (2014). Under our "limited" and "deferential" standard of review, we reject defendant's challenges to his sentence. See State v. Bolvito, 217 N.J. 221, 228 (2014).
Affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION