Opinion
DOCKET NO. A-5973-10T3
04-08-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID CUTHBERT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Waugh and St. John
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-03-0390.
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On April 7, 2011, defendant David Cuthbert was sentenced to consecutive three-year terms subject to one and one-half years of parole ineligibility, for an aggregate of six years imprisonment subject to three years of parole ineligibility. Prior to sentencing, defendant filed an unsuccessful motion to withdraw his guilty plea. The sentence was imposed on count one of Middlesex County Indictment No. 10-03-0390, third-degree receiving stolen property, N.J.S.A. 2C:20-7, and count two of Monmouth County Indictment No. 10-04-0520, charging him with third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h). He appeals, and we affirm.
In accordance with the plea agreement, on the day of sentencing, the remaining counts of the Middlesex indictment, charging defendant with fourth-degree credit card theft, N.J.S.A. 2C:21-6(c) (count two); third-degree trafficking in personal identifying information pertaining to another person, N.J.S.A. 2C:21-17.3(b) (count three); fourth-degree possession of a false document, N.J.S.A. 2C:21-2.1(d) (count four); and third-degree attempted fraudulent use of credit cards, N.J.S.A. 2C:21-6(h) (counts five and six), were dismissed. The additional count remaining on the Monmouth County indictment, third-degree conspiracy to commit fraudulent use of credit cards, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-6(h) (count one); and third-degree fraudulent use of credit cards, N.J.S.A. 2C:21-6(h) (count three), were also dismissed.
Defendant's guilty plea followed on the heels of the denial of his motion to suppress. The State's only witness during the suppression hearing was New Jersey State Trooper Kiian T. Wilson.
Wilson testified that on November 17, 2009, at approximately 10:30 p.m., while patrolling the Molly Pitcher Service Area off the New Jersey Turnpike, he checked the Pennsylvania license plate on a Dodge Intrepid through his computer. The plate "came back not on file." When the car's occupants returned, the trooper explained that the license plate was not properly registered. Co-defendant Kenneth Edwards said the car belonged to him and that he had the proper paperwork inside. Defendant opened the door with keys he was holding in his hand, and Edwards reached inside. At that juncture, the trooper smelled the odor of marijuana emanating from the vehicle, and he asked the group, including co-defendant Nicole Snyder, to step towards the rear of the vehicle. He called for backup. After their arrival, another trooper searched Edwards, and found a bag of marijuana in his front shirt pocket.
During the stop, Edwards told Wilson that there was a temporary tag on the rear of the vehicle. Wilson testified, however, that at the time of the stop he did not see it, because his primary concern was his own safety since he was outnumbered until other troopers arrived.
At the suppression hearing, the State played the tape of the incident taken from the trooper's vehicle camera. Edwards was cuffed and placed in the rear of a patrol vehicle, where he was asked if he would consent to a search of the car. He agreed, although because he was in handcuffs, he could not sign the written form read aloud to him by the trooper. Later, at the station, he refused to sign the written consent form.
Although requested, no copy of the tape was ever received as part of the record on this appeal.
Wilson also presented defendant with a written consent to search, explaining that he wanted to search for narcotics in the suitcases located in the vehicle's trunk. Defendant responded "okay," but stated that he did not want the trooper searching his "personals." Wilson reiterated that he wanted full consent. Defendant asked Snyder if she objected to the trooper searching her suitcase as well. She said she did not, at which point defendant told the trooper to "[d]o what you got to do." Wilson responded by saying the question required a yes or no answer. Defendant then responded yes. He too refused to sign the written consent form when it was presented to him at the station.
The search of defendant's person and the vehicle, including suitcases belonging to the co-defendants, revealed various identification cards not in the name of defendant, Edwards, or Snyder, gift cards, as well as merchandise from the Short Hills Mall.
The trial court found, pursuant to State v. Segars, 172 N.J. 481 (2002), that putting the license plate into the computer was not a search, as it did not intrude upon any legitimate privacy interest. Once Wilson discovered a problem with the plate, he had a reasonable and articulable suspicion that a motor vehicle violation had been committed. The judge found Wilson to be a credible witness based on "his demeanor, his testimony, the consistency of his testimony, especially with regard to his report and the videotape that the Court observed," and that he credibly testified that he never saw a temporary tag on the vehicle. Once Edwards opened the driver's side door to remove the registration, and Wilson detected the odor of burnt marijuana, he had a reason to suspect that the vehicle contained evidence of the commission of a crime, and justification for obtaining Edwards's consent to a further search of the vehicle.
The court also found Edwards's consent was valid, knowing, and voluntarily given. Having been informed that police could obtain a warrant regardless, but that he nonetheless had a right to refuse, Edwards then made the informed decision to consent. The trial judge rejected Edwards's argument that being told a warrant would be obtained amounted to coercion.
The court noted that Edwards told Wilson that the suitcases recovered from the trunk belonged to defendant, causing Wilson to read defendant the consent to search form, and ask for his consent to search the suitcases. Although defendant informed the trooper that he did not object to a search for drugs, he objected to the trooper examining his "personal stuff." When the trooper asked for clarification, defendant still refused consent but then asked Snyder if she objected to Wilson examining her belongings. After she said she did not care, defendant then told Wilson to do what he had to do, at which point Wilson asked him to confirm that that was an affirmative response. Defendant said yes.
Hence the court found that defendant's consent to a search of the suitcase was also knowingly and voluntarily given. Defendant understood the scope of the search and that he had the right to refuse. When told he could not limit the search, he merely consented.
On appeal, defendant raises the following points
POINT I
WHEN A VALID TEMPORARY REGISTRATION IS CONSPICUOUSLY AFFIXED TO A CAR WINDOW, IT IS UNREASONABLE FOR LAW ENFORCEMENT TO RELY SOLELY ON AN MDT INQUIRY THAT REVEALS THAT
THE LICENSE PLATE IS "NOT ON FILE" TO EFFECTUATE AN INVESTIGATORY STOP.
POINT II
MR. CUTHBERT'S CONSENT TO SEARCH, GIVEN WHILE HE WAS ARRESTED, HIS ASSOCIATE'S VEHICLE WAS ALREADY BEING SEARCHED, AND AFTER BEING REPEATEDLY TOLD THE ISSUE OF CONSENT WAS A "YES" OR "NO" ANSWER, WAS NOT VOLUNTARY. ALTERNATIVELY, THE SEARCH EXCEEDED THE SCOPE OF CONSENT WHEN WILSON READ THE CONTENTS OF MR. CUTHBERT'S LUGGAGE AFTER A CLEAR INSTRUCTION THAT HIS "PERSONAL PAPERWORK" WAS NOT TO BE READ.
POINT III
BECAUSE THE CONVICTION FOR FRAUDULENT USE OF A CREDIT CARD AND RECEIVING STOLEN PROPERTY FORMED ONE PERIOD OF AB[]ER[R]ANT CONDUCT, MR. CUTHBERT SHOULD HAVE BEEN SENTENCED TO CONCURRENT TERMS.
I
The State bears "'the burden of proving the validity of the [warrantless] search'" in this case. State v. Moore, 181 N.J. 40, 44-45 (2004) (quoting State v. Maryland, 167 N.J. 471, 489 (2001)). It is the State's obligation to demonstrate that the search "falls within one of the few well-delineated exceptions to the warrant requirement." Maryland, supra, 167 N.J. at 482 (quoting State v. Citarella, 154 N.J. 272, 278 (1998)).
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). The basis for assessing reasonable and articulable suspicion is objective. United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989); State v. Golotta, 178 N.J. 205, 213 (2003). Review of the reasons for a stop, of the reasonable and articulable suspicion, is highly fact-sensitive. State v. Nishina, 175 N.J. 502, 511 (2003). It must be based on more than an officer's suspicion or hunch. Sokolow, supra, 490 U.S. at 7, 109 S. Ct. at 1585, 104 L. Ed. 2d at 10.
It is undisputed that pursuant to Segars, the officer could lawfully check the license plate on his computer. Such a search is not considered to "intrude on any legitimate privacy interest" of defendant's. Segars, supra, 172 N.J. at 490.
Wilson, whom the judge found to be a credible witness, said he did not notice the temporary tag on the rear of the vehicle. That fact does not make his discussion with the occupants of the car illegitimate. Events happened quickly, and the basis for further investigation shifted away from violation of the motor vehicle laws to a violation of the drug laws. See State v. Pena-Flores, 198 N.J. 6, 29-31 (2009).
Ordinarily, Rule 3:3-1(c) would require the issuance of a summons as opposed to an arrest for the disorderly persons offense of the use of marijuana, N.J.S.A. 2C:35-10. But in this case, where the vehicle was purportedly registered in Pennsylvania, and the stop occurred on the New Jersey Turnpike, there was "reason to believe that the defendant w[ould] not appear in response to a summons." R. 3:3-1(c)(6). An arrest, as opposed to the issuance of a summons, was therefore lawful.
In sum, the existence of the temporary registration tag in the back did not make the initial stop unconstitutional, nor did it taint the initial contact between the trooper and the occupants of the vehicle. Wilson credibly testified that he did not see it.
We now consider the search that ensued. "A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search . . . ." State v. Domicz, 188 N.J. 285, 305 (2006). Furthermore, "consent searches are considered a 'legitimate aspect of effective police activity.'" Ibid. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854, 863 (1973)). However, "where the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent." State v. Johnson, 68 N.J. 349, 353-54 (1975). "[I]f the State seeks to rely on consent as the basis for a search, it has the burden of demonstrating knowledge on the part of the person involved that he had a choice in the matter." Id. at 354.
In this case, the trial judge described the interaction between Wilson and defendant:
Defendant Edwards told Trooper Wilson that the suitcases recovered from the trunk belonged to Defendant Cuthbert. Trooper Wilson then read Defendant Cuthbert the consent to search form and asked for his consent to search the suitcase. Defendant Cuthbert informed Trooper Wilson he did [not] mind him looking for drugs, but he was not consenting to him going through his personal stuff. Trooper Wilson asked for clarification and indicated he was asking for consent to search the suitcases to find the source of the marijuana odor. Defendant Cuth[]bert refused consent, but then asked Defendant Snyder if she wanted Officer Wilson going through their stuff. After Defendant Snyder told him that she didn't care, Defendant Cuthbert told Trooper Wilson do what you go[t] to do. Trooper Wilson asked, is that yes, to which Defendant Cuthbert unequivocally replied yes.Thus the judge concluded that Wilson had not exceeded the scope of consent because "Trooper Wilson testified that based upon his years of experience, including over [fifty] narcotics arrests and investigations in just the year before this -- this arrest, drugs are often hidden in the wallet[] slots." Accordingly, she also found the examination of everyone's wallets to be proper.
The atmosphere in which consent was sought was not unduly coercive. See State v. Bindhammer, 44 N.J. 372, 380 (1965) (observing that the State's burden is heavier when proving that consent was freely given by a defendant who is in custody). "A suspect may of course delimit as he chooses the scope of the search to which he consents. But if his consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization." Florida v. Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801, 1804, 114 L. Ed. 2d 297, 303 (1991).
The judge's findings are based on her determination that Wilson was a credible witness, a determination we have no reason to disturb. Wilson testified unequivocally that defendant consented to the search, understanding that he had the right to refuse, when defendant answered "yes" to the trooper's request for an affirmative response to the consent search. The record supports the court's conclusion that the State met its burden. Wilson did not exceed the scope of the search.
II
Defendant contends that the conduct at issue was one aberrant episode and that therefore the sentence should have been concurrent and not consecutive. But the offenses occurred in different counties, on different dates, and involved different victims. Accordingly, pursuant to the Yarbough factors the sentence was entirely appropriate and the trial judge did not err by sentencing defendant as called for in the plea bargain. For this defendant, the court found aggravating factors three, six, nine, and eleven and no factors in mitigation. See N.J.S.A. 2C:44-1(a)(3), (6), (9), (11). As the court observed, these charges arose only three months after defendant was released from state prison on parole.
State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
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We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 608 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Ibid. Defendant's sentence does not shock our conscience.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION