Opinion
DOCKET NO. A-3511-10T4
04-04-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIEL M. BESTULIC, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-09-1838.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).
Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After his motion to suppress was denied, defendant Daniel Bestulic pled guilty to third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). He was sentenced to two years of probation. Defendant appeals the denial of his motion to suppress. We affirm.
I.
At 12:55 p.m. on July 8, 2009, Bryce Byham, a Neptune Township police officer, was conducting surveillance of possible drug sales in the parking lot of a Popeye's restaurant located on State Highway 35. Byham observed two male drivers leave their cars and enter the restaurant bathroom. One of the men was later identified as Brian Mignelli, but the second man was never identified. The two men soon exited the restaurant, together with a third male, later identified as defendant. Mignelli and defendant were talking. Mignelli got into a black Chevy and defendant left in a burgundy Dodge Durango. Both drivers ran a stop sign when they exited the parking lot.
Byham decided to follow Mignelli, but he was able to record defendant's license plate number. Mignelli stopped to pick up a woman, who was later identified as his wife, Erin. After two miles, Byham stopped Mignelli for the traffic violation and questioned the couple. When Byham asked about buying drugs at the restaurant, Ms. Mignelli told him that she had gone to the restaurant with her friend, Dan, to buy drugs and that he had purchased more drugs than she and her husband had. Byham arrested the couple for wandering and a search incident to that arrest revealed that they were in possession of methadone.
Late in the afternoon the next day, Byham observed defendant driving the Dodge Durango in the area of the restaurant. As Byham passed defendant, he saw that the Durango had an expired inspection sticker. Because it was unsafe for Byham to turn his vehicle around to pursue defendant, he remained in the area and waited to see if defendant returned. About ten minutes later, defendant drove by again and Byham activated his vehicle's lights to pull him over. As defendant drove his car to a stop in response to the command to pullover, Byham saw him reach up toward the visor area above his head. From his experience, Byham knew that drugs are sometimes hidden near the visor in the area where the seam of the roof of the car meets the windshield.
After requesting and receiving defendant's credentials, Byham asked him where he was coming from. Defendant replied that he had just taken an hour-long walk on the boardwalk, a response that Byham knew to be false based upon his observations of defendant driving in the area. Byham confronted him with his suspicion that defendant was in the area to purchase drugs. After another officer arrived, Byham asked defendant to step out of the car and he was patted down for weapons.
Byham then asked defendant if he would consent to a search of his car. Defendant agreed. Byham completed a written consent form and went over it, line-by-line, with defendant. Defendant initialed each answer that he gave to the questions asked on the form.
After defendant signed the consent form, Byham searched the area around the driver's side visor. He found a hypodermic needle, nine glassine bags of heroin, and one empty bag of heroin secreted in an area between the cloth roof of the car and the windshield.
The motion court denied defendant's motion to suppress, finding that Byham had properly stopped defendant's vehicle due to the expired inspection sticker. Based upon Byham's observation of defendant apparently hiding something in the area above the car's visor and defendant's false statements as to his activities immediately preceding the stop, the court found Byham had a reasonable basis for asking defendant to consent to a search. The judge also found that defendant voluntarily and knowingly consented to the search of his car.
II.
On appeal, defendant raises the following arguments for our consideration:
POINT IAfter reviewing the record, we are satisfied that the motion court properly denied the motion to suppress.
THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE SEARCH OF HIS AUTOMOBILE WAS THE FRUIT OF AN ILLEGAL INVESTIGATORY DETENTION, WHICH INVALIDATES DEFENDANT'S CONSENT TO SEARCH. ALTERNATIVELY, THE DEFENDANT DID NOT GIVE HIS CONSENT VOLUNTARILY.
A. THE TRIAL COURT ERRED IN DENYING THE SUPPRESSION MOTION BECAUSE PATROLMAN BYHAM LACKED THE REASONABLE ARTICULABLE SUSPICION TO CONTINUE THE STOP BEYOND WHAT WAS NECESSARY FOR THE ISSUANCE OF A SUMMONS, AS DEFENDANT WAS NOT SEEN ENGAGED IN ANY CRIMINAL ACTIVITY AND THE UNCORROBORATED TIP OF THE MIGNELLI[S] PROVIDED NO BASIS FOR SUSPECTING CRIMINAL ACTIVITY.
B. MR. BESTULIC'S CONSENT TO SEARCH THE CAR WAS INVALID BECAUSE HE WAS COERCED INTO GIVING HIS CONSENT TO THE SEARCH.
"[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. Elders, 192 N.J. 224, 243 (2007) (citation omitted) (internal quotation marks omitted). A motion court's findings of fact may be disturbed only when "they are so clearly mistaken that the interests of justice demand intervention and correction." Id. at 244. There is clearly sufficient credible evidence in the record to support the motion court's findings of fact surrounding the search.
On appeal, defendant acknowledges that the initial stop of his vehicle was justified due to the expired inspection sticker. See State v. Baum, 199 N.J. 407, 424 (2009) (holding that an automobile stop was justified by the absence of a required inspection sticker). However, he alleges that Byham unduly prolonged the stop by accusing him of being in the area to purchase drugs and that Byham had no basis for asking him to consent to a search of his car. We disagree.
Once a vehicle is stopped, police are authorized to ask to inspect the driver's license and other driving credentials. They may also ask the driver routine questions about his or her route of travel and their purpose. State v. Baum, supra, 199 N.J. at 424. If the responses to those questions are contradictory or contrary to other information known to police, continued questions by the officer are permitted. Ibid. When the officer's reasonable inquiries "'give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.'" Ibid. (alteration in original) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)).
Although a continued detention may amount to an arrest if it is longer than needed or if it becomes "'more than minimally intrusive,'" Id. at 425 (quoting State v. Dickey, supra, 152 N.J. at 478), the entire encounter here was brief. Byham had a reasonable basis for asking defendant additional questions once defendant falsely told him that he had been on the boardwalk for an hour. Byham was also justified in removing defendant from his vehicle. State v. Pena-Flores, 198 N.J. 6, 31 n. 7 (2009) (describing right of officer to remove driver from lawfully stopped vehicle as "established precedent"). Thus, we reject defendant's contention that the stop was unduly prolonged.
Defendant's argument that Byham improperly asked him to consent to a search of his car also lacks merit. An officer may ask a driver for permission to search a vehicle if the officer has a reasonable and articulable basis to make the request. State v. Carty, 170 N.J. 632, 647, modified on other grounds, 174 N.J. 351 (2002). This test was met here. Defendant provided false information to Byham about where he was coming from. Byham had also observed defendant appear to be hiding something in the roof area of his car. Those facts, either alone or in combination with the information Byham had learned the day before about defendant's involvement in a drug purchase, gave him "a reasonable and articulable basis" to request defendant's consent to the search.
Finally, there is nothing in the record to support defendant's contention that his consent was not voluntarily given. He was not under arrest or handcuffed when he gave his consent. Byham reviewed each and every question on the consent form with defendant, including his right to refuse to consent to the search. He told Byham that he understood the form and he initialed each of his answers to the questions posed. Under these circumstances, the motion court's finding that defendant voluntarily consented to the search is firmly supported by the record.
Affirmed.