Opinion
DOCKET NO. A-5085-11T2
03-15-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. LARRY BASKO, Defendant-Respondent
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for appellant (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Noonan Logan, L.L.C., attorneys for respondent (Michael S. Noonan, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-08-1449.
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for appellant (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Noonan Logan, L.L.C., attorneys for respondent (Michael S. Noonan, on the brief). PER CURIAM
On leave granted, the State appeals from an order suppressing drugs and drug paraphernalia seized by police from a minivan that defendant Larry Basko had been driving. Although defendant consented to the warrantless search of the van, the trial court concluded the police did not have an articulable suspicion that drugs were in the van and that defendant's consent was tainted by a police officer's threat to use a drug dog if defendant withheld his consent. The court's decision is supported by sufficient credible evidence in the record. Accordingly, we affirm.
I.
Two witnesses testified at the suppression hearing: Officer Michael Pavlick, a seventeen-year veteran of the Howell Township Police Department; and defendant. Pavlick had considerable experience investigating illegal drug activity. He had previously been assigned to the Township's canine unit and had attended a ten-week course in which he learned to train dogs to find narcotics. He also had attended Drug Enforcement Agency schools, including a two-week "investigators" school, and State Police drug interdiction schools. He continues to take refresher courses at least once each year.
On March 22, 2011, Pavlick and Patrolman Baraclaro were assigned to serve warrants throughout the Township. They were both in uniform when they drove to a location on West Third Street and arrived at approximately 9:00 a.m. to serve a summons on Kevin Wingler for driving while suspended. Two weeks earlier, Pavlick had stopped a car Wingler was driving. During the traffic stop, a passenger in Wingler's car informed Pavlick "there was [an] older gentleman who lived on West Third Street who was dealing drugs," but would not disclose the dealer's name. During the same traffic stop, Wingler said he had just moved back to Howell Township from Brick, because he had been arrested for heroin distribution and Brick police were always harassing him.
The suppression hearing transcript does not include Patrolman Baraclaro's first name.
When Pavlick and Baraclaro arrived at Wingler's residence to serve the warrant, a maroon mini-van was parked in the middle of the street, its driver's door open. The van "was right in front of . . . the edge of Mr. Wingler's property and this [adjacent] vacant property." As Pavlick approached the mini-van, he saw defendant walking "kind of on the edge of the vacant lot and Mr. Wingler's lot," walking away from Wingler, who was walking toward the front door of his home. Defendant was zipping and buckling his pants.
Pavlick asked defendant why he was walking away and fixing his pants. Defendant replied that he was not going to the bathroom on the side of the property; his shirt kept coming untucked. According to Pavlick, defendant was extremely nervous, stuttered a bit, and did not make eye contact. Defendant's motions "were kind of like jittery almost."
Defendant explained that he had asked Wingler for a job. When he drove to Wingler's house in the mini-van, he just "pulled up . . . to talk to [Wingler] for a minute[,] [s]o, he just parked there real quick to get out." Pavlick had defendant sit in the van and produce his license, registration, and insurance information. After verifying that defendant's driver's license was valid, Pavlick asked defendant about drug activity in the area, because the police had a lot of problems with drug activity on that street and in that neighborhood. Defendant knew of no such activity in the immediate area, but thought there might be drug activity in a nearby park. As Pavlick continued to talk, defendant became increasingly nervous. It was a cold day and defendant began to sweat. Defendant became more jittery, was stuttering more frequently, and was completely avoiding eye contact.
Pavlick asked defendant to step out of the van and asked if there were any guns in the van. Defendant said no. Pavlick asked if there were any bombs in the vehicle. Defendant said no. Pavlick then asked if there were any drugs in the vehicle. Defendant looked away, hesitated, and then "kind of mumbled, no." Pavlick asked for consent to search the van:
Q. At that point what did you do?
A. At that point I asked him for a consent to search the vehicle.
Q. Okay, what was his response?
A. His initial response was no. I then advised him that his next step would be that I would call a drug detect[o]r dog over. I explained to him the manner in which a dog would detect the odor of a narcotic, the manner in which he would alert to that odor and then if the [dog] did alert, that we would be holding the car and applying for [a search] warrant.
Q. And at that point did [defendant] say anything else?
A. He said that he would consent at that point.
Q. Did he ask you any questions regarding the process?
A. No. I said that we have a form, I brought out the consent to search form.
Pavlick read the consent form to defendant line by line. Defendant initialed each line and signed the form. One of the lines on the form "basically asked if he is being coerced in any way. He signed that saying, no." Pavlick "kept explaining the process to defendant, like [he] did have the right to stop the search and refuse it." During his testimony, Pavlick read the content of the consent form, after which the form was admitted into evidence. Pavlick testified explicitly that he never forced or coerced defendant into giving consent.
After defendant signed the consent form, Pavlick searched the van. He found "a money envelope like you get at the bank when you make a withdrawal" beneath the mat on the driver's side floor. The envelope contained a hypodermic needle and a spoon attached to a pill bottle by a rubber band. Inside the pill bottle was a prescription pill and a deck of heroin. After finding the needle, the pill, and the heroin, Pavlick arrested defendant, parked the mini-van on the side of the street, and locked it.
Defendant, age fifty-five, lived approximately "six houses down from" Wingler. Defendant testified that after his initial encounter and discussion with Pavlick, Pavlick verified his credentials and asked about drug activity in the area. Defendant asked if he could have his shirt or a jacket because it was cold and he was freezing. Pavlick refused his request for a shirt. Pavlick then put a consent form on the hood of his van and asked defendant to consent to a search. When defendant asked why, Pavlick responded that he wanted to look for drugs. Defendant responded, "what if I don't consent to this? And he says, well, we will impound your van to the police station and then bring the dogs in." Defendant testified, "that frightened me because . . . it is my mother's van." He consented to the search because he did not want his mother's van impounded. Defendant readily acknowledged that he was nervous.
When specifically asked by his attorney if he thought he had a right to say no to the search, defendant responded: "I did say, no, but they wouldn't buy it, -- you know, he wanted to search the van, bottom line. They wouldn't let me go." Defendant eventually gave in to the pressure. Pavlick searched the van, found the drugs and paraphernalia, and arrested defendant.
Following defendant's arrest, a Monmouth County grand jury charged him in an indictment with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). Additionally, Pavlick charged him with two disorderly persons offenses: possessing a hypodermic syringe, N.J.S.A. 2C:36-6, and possessing drug paraphernalia, N.J.S.A. 2C:36-2. Thereafter, defendant filed a motion to suppress the evidence seized by Pavlick and the court granted the motion.
In a written opinion, the court concluded, "[a]lthough the officer's field inquiry and investigative stop of the defendant were lawful, because there was no adequate legal reason to believe the vehicle contained evidence of a crime or illegal drugs and because the consent given was not voluntary, the defendant's motion to suppress shall be GRANTED." The court explained, "the officers were able to articulate numerous factors which in combination resulted in the reasonable detention for an 'investigative stop.'" The court also found, however, the officers did not have a reasonable and articulable suspicion to believe the mini-van contained drugs. The court reasoned that while the officers had a reasonable suspicion that perhaps there was contraband on defendant's person, defendant had not "come into contact with the mini-van" when the officers first encountered him. The court emphasized the police did not "stop" the mini-van. When they arrived, the van was already parked in the middle of the street with the door open and no one inside.
The court also determined that even if there were sufficient suspicion that the mini-van contained contraband, defendant did not freely and voluntarily consent to the search. Noting that defendant initially refused to consent to a search of the van, the court concluded that "the defendant's consent was directly in response to the officer's intimidating comment about the 'drug dogs,' a tactic expressly disapproved [by the Supreme Court]." The court suppressed the evidence seized by Pavlick from defendant's mother's van.
The State filed a motion for reconsideration. The State's argument was twofold. First, because Pavlick had an articulable suspicion that defendant possessed drugs while he zippered and buckled his pants as he walked away from Wingler, and because defendant subsequently sat in the van while Pavlick left the van to verify defendant's credentials, there was a reasonable basis for Pavlick to believe that defendant secreted drugs in the van. Second, when Pavlick told defendant that drug dogs would be brought to sniff the parameter of the van, Pavlick was merely making "a predictive statement of what would occur pursuant to the Howell Township policy" in response to defendant's inquiry. The court denied the State's motion for reconsideration.
Following the court's denial of the State's reconsideration motion, the State filed a motion for leave to file an interlocutory appeal. We granted that motion.
II.
The State raises the following points for our consideration:
POINT I THE TRIAL COURT'S GRANT OF SUPPRESSION WAS PREMISED UPON AN INCORRECT APPLICATION OF NEW JERSEY LAW TO THE UNCONTESTED FACTS.
A. THE FINDING OF NO REASONABLE SUSPICION FOR THE VEHICLE.
B. THE FINDING OF COERCED CONSENT.
In reviewing a trial court's decision either to grant or to deny a motion to suppress evidence, "an appellate court '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)). Appellate courts "should 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). In view of such deference, a trial court's findings of fact may be disturbed only when "they are so clearly mistaken that the interests of justice demand intervention and correction." Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 102). An appellate court's review of a trial court's legal conclusions, however, is plenary. Handy, supra, 206 N.J. at 45.
Here, Pavlick searched the van without a warrant. "[U]nder both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of our State Constitution, searches and seizures conducted without warrants issued upon probable cause are presumptively unreasonable and therefore invalid. Elders, supra, 192 N . J. at 246. "[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.'" Ibid. (quoting State v . Pineiro, 181 N . J . 13, 19-20 (2004)). But see State v . King, 44 N . J . 346, 352 (1965) (requiring the State to prove the voluntariness of one's consent to a search of his or her premises "by clear and positive testimony").
If a police officer has a reasonable and articulable suspicion that a driver or passenger has engaged in, or is about to engage in, criminal activity, the officer may ask the driver to consent to a search of the vehicle. State v . Carty, 170 N . J . 632, 647, modified on other grounds, 174 N . J . 351 (2002). Under such circumstances, when a driver knowingly and voluntarily consents, the ensuing warrantless search does not violate Article 1, paragraph 7 of the New Jersey Constitution. Id. at 638-39.
Whether a reasonable and articulable suspicion exists depends upon the totality of the circumstances. Pineiro, supra, 181 N.J. at 22.
No mathematical formula exists for deciding whether the totality of circumstances provided the officer with an articulable or particularized suspicion that the individual in question was involved in criminal activity. Such a determination can be made only through a sensitive appraisal of the circumstances in each case. In each case, the reasons for such particularized suspicion will be given careful scrutiny by the Court. A seizure cannot--we emphasize
cannot--be justified merely by a police officer's subjective hunch.
[Id. at 27 (quoting State v. Davis, 104 N.J. 490, 505 (1986)).]
Likewise, whether a defendant's consent to a warrantless search was knowingly and voluntarily given depends upon the totality of the circumstances. Some factors suggesting that a defendant's consent was coerced are: the defendant consented after being arrested, denying guilt, or initially refusing to give consent; the search resulted in seizure of contraband the defendant knew would be discovered; and the defendant consented while handcuffed. King, supra, 44 N.J. at 359-53. Factors showing that consent was voluntarily given include that a defendant: "had reason to believe that the police would find no contraband[;] . . . admitted his guilt before consent[;] . . . affirmatively assisted the police officers[.]" Id. at 353.
Preliminarily, we note the trial court did not state in its opinion whether it was applying a preponderance of the evidence or clear and convincing standard to the evidence concerning defendant's consent to the search. Nevertheless, we conclude that even under the lower standard the court's decision is supported by sufficient credible evidence in the record.
The court first concluded the police had "no reasonable or articulable suspicion that there would be any contraband in the minivan." The State argues this conclusion was based on the faulty factual premise that there was no relationship at all between the defendant's suspicious behavior and the van. Specifically, the State argues the police could have reasonably inferred that defendant had driven the van to Wingler's home. The State also asserts the court failed to accord any import to the fact that defendant entered the van on two occasions before Pavlick requested permission to search it. The State reasons that from those facts and from defendant's other conduct, including that he was "a suspected drug dealer walking away from another suspected drug dealer after a presumably short interaction," the police reasonably could have inferred either "that defendant had just sold narcotics to Wingler and had additional narcotics stored in his awaiting vehicle," or that defendant "secreted contraband from his person inside the vehicle during the course of the stop." We disagree with the State's argument that the trial court was somehow required to make these deductions.
In the first place, Pavlick, an experienced police officer, never testified he suspected that defendant was a drug dealer. The State is apparently suggesting that such was a reasonable inference in light of the information Pavlick had received two weeks earlier that an older man on West Third Street was dealing drugs. But the court was not required to make such an inference in the absence of either a statement from Pavlick that he believed defendant could have been a drug dealer, or an explanation from Pavlick about why the defendant's conduct was consistent with selling, as opposed to buying, drugs. Nor was the trial court required to infer or accept the proposition that drug dealers keep their stashes in their cars, in the absence of any evidence of either such a practice generally, or defendant's practice specifically.
Next, contrary to the State's assertion that "defendant entered the minivan on two occasions before [Pavlick requested] consent to search" it, the record only establishes unequivocally that defendant entered the van once after departing company from Wingler. Defendant entered the van when Pavlick asked for defendant's credentials. But the record does not establish whether defendant closed the van door while Pavlick checked the credentials, and does not clearly establish whether Baraclaro watched defendant while Pavlick checked the credentials.
Considering all of these circumstances, the trial court could properly have concluded, as it did, that the police did not have a reasonable, articulable suspicion that drugs were in the van. We cannot conclude the trial court's findings were so clearly mistaken that the interests of justice demand intervention and correction. Elders, supra, 192 N.J. at 244.
We also conclude sufficient credible evidence supported the court's determination that defendant's consent was not voluntarily given. Despite having produced proper credentials that Pavlick verified, defendant was not free to leave. Two uniformed police officers remained at the scene and one continued to question him. Pavlick acknowledged that when he requested defendant's permission to search the van, defendant "was not free to just jump back in his car and drive away[.]" And though defendant was "freezing," Pavlick had refused to let defendant get a shirt.
Moreover, immediately upon defendant's refusal to consent to the search, Pavlick told defendant the next step would be that Pavlick would call a drug detector dog and if the dog "alert[ed]" to an odor of narcotic, the police "would be holding the car and applying for [a search] warrant." See Carty, supra, 170 N.J. at 645 (referencing the use of tactics including intimidating statements about drug dogs being on the way or everybody getting arrested upon the arrival of the dogs); but see State v. Baum, 199 N.J. 407, 425-26 n.5 (declining to consider whether a police officer telling a stopped motorist that he could summon a drug-sniffing dog "was so unduly coercive as to be constitutionally infirm"). As defendant testified, "I did say no, but they wouldn't buy it . . . you know, he wanted to search the van, bottom line."
The State asserts the trial court "relied on a non-existent per se rule to find that, as a matter of law, mention by a police officer of the very real consequences of refusal renders consent coerced." Not so. The court considered the defendant's initial refusal to give consent, the fact that defendant's refusal preceded his consent by only a short period of time, and that defendant consented only after Pavlick threatened to get a dog and possibly hold the van while he obtained a warrant.
The State also emphasizes that Pavlick was merely responding to defendant's inquiry when Pavlick explained the routine procedure of getting a drug dog and possibly a search warrant. That is not what Pavlik said. Pavlick testified that defendant's "initial response was no. I then advised him that his next step would be that I would call a drug detector dog over." And though defendant said he asked Pavlick what would happen if he refused to consent to the search, he also testified that Pavlick refused to accept his refusal to consent because "he wanted to search the van, bottom line." Reconciling Pavlick's testimony and defendant's testimony required the trial court to make credibility determinations that were almost entirely dependent upon the court's evaluation of the testimony and "feel" for the case. Rejecting the court's decision would require us to apply an incorrect, de novo standard of review. See Elders, supra, 192 N.J. at 231.
The trial court's factual determinations were supported by sufficient credible evidence in the record. The court's legal conclusions, based upon its factual determinations, were entirely appropriate. For those reasons, the court did not abuse its discretion when it denied the State's motion for reconsideration. R. 4:49-2; Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION