Opinion
DOCKET NO. A-2407-14T4
04-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIEL P. VERRECCHIA, a/k/a DANIEL GOLDBERG, Defendant-Appellant.
Robert Carter Pierce argued the cause for appellant. Anthony C. Talarico, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Mr. Talarico, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 14-02-0245. Robert Carter Pierce argued the cause for appellant. Anthony C. Talarico, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Mr. Talarico, of counsel and on the brief). PER CURIAM
Following denial of his motion to suppress evidence seized from a warrantless search of his person and an automobile he was driving, defendant Daniel Verrecchia pled guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and second-degree possession of a weapon by a previously-convicted felon, N.J.S.A. 2C:39-7. He was sentenced to an aggregate five-year term of imprisonment, all to be served without parole. Defendant now appeals from the denial of his suppression motion. We affirm.
I.
The only witness at the suppression hearing was Hackensack Police Officer Kley Peralta. Prior to joining the Hackensack Police Department in 2013, Peralta had been a member of the Palisades Interstate Parkway police, starting as a patrolman in 2004 before being promoted to sergeant in 2011. During his law enforcement career he had made over 1000 arrests, sixty to seventy percent of which were drug-related. In addition to his basic police training, Peralta took specialized narcotics, criminal interdiction, and deceptive behavior courses. He described the interdiction training as "basically it's trying to disrupt or delay individuals transporting contraband on the roadways through deceptive behavior traits [and] specific indicators of possible criminal activity . . . ." Peralta presently served as a "task force officer assigned to the quality of life initiative in Hackensack."
Peralta was on duty on October 13, 2013, when, at approximately 12:17 a.m., he observed defendant's vehicle swerving within its lane. The vehicle then nearly struck a barrier at the intersection of Ward and Main Street. As a result, Peralta activated the patrol car's emergency lights and pulled defendant over. He also conducted a license plate check of the vehicle, which revealed that it was registered to an older male from Vernon, who was later identified as defendant's father.
Peralta approached the vehicle from the passenger side, identified himself, and requested defendant's license and registration. While waiting for defendant to produce his credentials, Peralta observed that the front seat passenger, Sharod Purkett, was overly nervous, breathing heavily, and ignoring the officer's presence. When asked for identification, Purkett stated that he had none. Peralta testified he was aware there is no legal requirement that a passenger possess identification.
Peralta noted that the vehicle had a "lived in appearance," with numerous wrappings, bottles, cans, and backpacks strewn about it. He also saw six to eight air fresheners in the vehicle. Based on his experience, Peralta testified that "[a]ir fresheners are typically used as a masking agent to conceal the odor of narcotics."
Peralta observed that defendant's hand was shaking when he produced his license and registration, prompting him to request that defendant step out of the vehicle. Peralta advised defendant of the reason for the traffic stop. Defendant responded that he was looking for an address on Main Street. However, defendant could not recall the address, which Peralta viewed as "kind of suspicious."
According to Peralta, defendant "appeared to be overly nervous as we talked. He began to sweat even though it was a cool night out in October." As they continued talking, defendant "kept on looking down and around. He wouldn't make eye contact with me. Again, to me that's [] deceptive behavior." Peralta noted that defendant was looking around, "[l]ike he was going to run," and exhibited the same behavior traits as individuals that had "run on me" in the past.
Peralta asked defendant why he was so nervous. Defendant answered that he had been arrested before for weapons and drugs. Defendant advised that his passenger had also previously been arrested for drugs. Peralta attempted to calm defendant down and told him to take a deep breath. At this point, Peralta's "backup partner" had still not arrived. Peralta questioned whether defendant had anything illegal in the vehicle. Defendant replied "not that I know of," which Peralta viewed as an "evasive answer" that "raised [his] suspicions even more."
Peralta testified that the confluence of these factors led him to request consent to search defendant's person and his vehicle. Peralta specifically noted:
That the driver was overly nervous, the passenger was overly nervous, the multiple air fresheners in the vehicle, the third party vehicle it wasn't registered in his name . . . individuals commonly [] use third party vehicles so law enforcement has a harder time . . . .
. . . .
Also, [defendant's] previous drug and gun history, his acknowledgement of the passenger and his drug history, and my training and experience again being involved in over 1,000 arrests and been through numerous interdiction training schools . . . [and] deceptive behavior classes.
Peralta informed defendant that he had the right to refuse consent and to stop the search at any time. Defendant verbally consented to the search. Peralta then searched defendant and found suspected heroin in his right front pants pocket. The officer placed defendant under arrest, handcuffed him, and read him his Miranda rights. Next, Peralta asked his partner, who had now arrived, to remove Purkett from the vehicle. A search of Purkett yielded two cut plastic straws containing suspected heroin residue.
Peralta went back to defendant "to reaffirm that I still had [his] consent to search the vehicle . . . . Again, I advised him of his right to refuse a search and stop the search at any time. And, [defendant] still agreed to the search of his vehicle." The vehicle was searched, and a loaded handgun was found between the rear seat and the trunk. A check on the gun later revealed that it was stolen. Defendant and Purkett were transported to police headquarters, where Purkett revealed that he had heroin concealed in his underwear. Both men were charged with possession of heroin, unlawful possession of the handgun, and possession of stolen property. Defendant was also issued traffic summonses for failing to maintain lane and careless driving.
In a September 9, 2014 oral opinion, Judge Edward A. Jerejian determined that the initial stop of the vehicle was lawful based on defendant's motor vehicle violations. He further found that "the stop was not unconstitutionally prolonged," and that during the bulk of it Peralta was "working on his own late at night."
The judge framed the main issue as whether a reasonable articulable suspicion existed to support the request for consent to search defendant's vehicle. The judge noted that "[r]easonable suspicion is less of a standard than probable cause" and requires an "evaluation [of] the totality of the circumstances." Moreover, "a group of innocent circumstances in the aggregate can support a finding of reasonable suspicion." (citing State v. Stovall, 170 N.J. 346, 368 (2002)).
The judge noted that Peralta is "an experienced police officer who has received extensive training." The judge found Peralta credible, and concluded that there were a "litany" of factors "which taken separately may seem somewhat innocent," but in the aggregate supported a finding of reasonable suspicion. Specifically, the judge noted: both the driver and passenger appeared overly nervous; defendant's hands were shaking, he was sweating despite the cool night, he did not maintain eye contact with the officer, and his mannerisms were indicative of a suspect who might attempt to flee; defendant stated he was looking for an address on Main Street but was unable to remember or did not know the address; the car looked "lived in" and contained numerous air fresheners that could be used to mask the odor of drugs; and defendant stated that he had previously been arrested for guns and drugs.
II.
Defendant presents the following argument on appeal:
THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS BECAUSE THE POLICE DID NOT HAVE A REASONABLE AND ARTICULABLE SUSPICION TO BELIEVE THAT [DEFENDANT] OR PURKETT ENGAGED IN, OR WERE ABOUT TO ENGAGE IN, CRIMINAL ACTIVITY BEFORE REQUESTING [DEFENDANT'S] CONSENT TO SEARCH HIS PERSON AND THE MOTOR VEHICLE FOLLOWING A ROUTINE TRAFFIC STOP.
The Supreme Court has explained the standard of review applicable to our consideration of a trial judge's fact-finding on a motion to suppress:
We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243-44 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). Deference to those findings is particularly appropriate when the trial court has the "opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Ibid. Moreover, we need not defer "to a trial . . . court's interpretation of the law" because "[l]egal issues are reviewed de novo." State v. Vargas, 213 N.J. 301, 327 (2013).
[State v. Watts, 223 N.J. 503, 516 (2015) (alteration in original).]
An appellate court remains mindful not to "disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal' or because the 'trial court decided all evidence or inference conflicts in favor of one side' in a close case." Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). Rather, we reverse only when the court's findings "are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).
The stop of a motor vehicle is lawful if the authorities have a reasonable and articulable suspicion that violations of motor vehicle or other laws have been or are being committed. State v. Carty, 170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351 (2002). Here, the motion judge found there was reasonable and articulable suspicion that defendant committed a motor vehicle violation. This provided the necessary legal basis for the stop. Defendant does not challenge this conclusion.
"[W]hen the reasonable inquiries by the officer related to the circumstances that justified the stop 'give rise to suspicions' unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions." State v. Baum, 199 N.J. 407, 424 (2009) (second alteration in original) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)). Here, when Peralta approached the car, he noted that both the driver and passenger were overly nervous. As he awaited defendant's credentials, the officer observed that the vehicle appeared "lived in." Of special significance, Peralta saw a large quantity of air fresheners in the car that, in his experience, are used to mask the odor of drugs. Also, while defendant stated that he was looking for an address on Main Street, he was unable to provide that address. Defendant's continued extreme nervousness, the appearance that he "was looking to run," and his criminal history involving guns and drugs, cumulatively served to heighten the officer's suspicions and led him to request consent to search defendant and his vehicle.
Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). 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). Furthermore, "consent searches are considered a 'legitimate aspect of effective police activity.'" State v. Domicz, 188 N.J. 285, 305 (2006) (quoting Schneckloth, supra, 412 U.S. at 228, 93 S. Ct. at 2048, 36 L. Ed. 2d at 863). To be valid, however, a consent to search must be voluntary and knowing in nature. Schneckloth, supra, 412 U.S. 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. Stovall, supra, 170 N.J. at 356 (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)). "[A] finding of reasonable and articulable suspicion of ongoing criminality" is determined by objective "cumulative factors in a totality of the circumstances analysis[.]" Elders, supra, 192 N.J. at 250.
Therefore, the consent exception to the warrant requirement, as applied to the search of a motor vehicle, has three prongs. The State must prove: 1) the police had a reasonable and articulable suspicion of criminal activity; 2) the consent was voluntary; and 3) the person who granted consent had the authority to do so. As the motion judge correctly stated, only prong one is at issue here, since defendant does not argue that prongs two and three were not met in this case.
As noted, our review of Judge Jerejian's decision on the suppression motion is limited. We are bound by his factual findings so long as they are supported by sufficient credible evidence. Elders, supra, 192 N.J. at 243. We owe special deference to his evaluation of witness credibility. See State v. Locurto, 157 N.J. 463, 474 (1999). We must give deference to these credibility findings by Judge Jerejian as they were "substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case" which this Court cannot enjoy. Johnson, supra, 42 N.J. at 161; see also Locurto, supra, 157 N.J. at 471.
Guided by our standard of review, we conclude, as did Judge Jerejian, that the totality of the circumstances developed by Peralta following the vehicle stop established reasonable and articulable suspicion that a search would produce evidence of wrongdoing. We agree with defendant that each of the factors cited by Peralta, standing alone, may well have an innocent explanation and be insufficient to meet the reasonable suspicion standard. However, our analysis compels us to view these circumstances not in isolation but rather in their totality. Stovall, supra, 170 N.J. at 361. In doing so, we "may consider the experience and knowledge of [the] law enforcement officer[]." Id. at 363. Moreover, Stovall informs us that "a group of innocent circumstances in the aggregate can support a finding of reasonable suspicion." Id. at 368. We conclude that is the case here.
In Carty, supra, 170 N.J. at 648, the Court concluded that nervousness and furtive gestures, standing alone, are insufficient to constitute reasonable and articulable suspicion. Here, we note that defendant was not merely nervous but overly so. His hands were shaking, he was sweating despite the cool night, and he refused to look Peralta in the eye. He continually looked around, and his mannerisms were consistent with someone who, based on the officer's training and experience, appeared likely to run. Moreover, Peralta did not develop reasonable suspicion based on defendant's nervousness alone. Rather, it was late at night, and defendant was unable to provide Peralta with the address on Main Street he was purportedly looking for.
Additionally, defendant's criminal history included drugs and weapons offenses, and his passenger also had prior arrests for "drugs." Peralta observed some six to eight air fresheners in the vehicle, which was indicative of a possible effort to mask the odor of drugs. While no reported New Jersey case has addressed the issue, other jurisdictions have determined that the presence of multiple air fresheners is a relevant factor in establishing reasonable suspicion that drugs may be present. See, e.g., United States v. Foreman, 369 F. 3d 776, 785 (4th Cir. 2004); United States v. Foley, 206 F. 3d 802, 804, 806 (8th Cir. 2000); United States v. Alexander, 589 F. Supp. 2d 777, 786 (E.D. Tex. 2008); United States v. Parada, 289 F. Supp. 2d 1291, 1301 (D. Kan. 2003); Jackson v. Maryland, 988 A. 2d 1154, 1167 (Md. Ct. Spec. App. 2010).
In sum, we find no reason to disturb Judge Jerejian's well-reasoned factual findings and legal conclusions. The record support's the judge's conclusion that the State met its burden to establish that there was valid consent to search. We are satisfied that defendant's motion to suppress was properly denied. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).