Opinion
DOCKET NO. A-3423-13T3
02-09-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DEVIN HENDERSON, Defendant-Respondent.
Jamin Cooper, Assistant Prosecutor, argued the cause for appellant (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Cooper, of counsel and on the brief). Thomas J. Cammarata argued the cause for respondent (Cammarata, Nulty & Garrigan, L.L.C., attorneys; Mr. Cammarata, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 13-06-0349. Jamin Cooper, Assistant Prosecutor, argued the cause for appellant (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Cooper, of counsel and on the brief). Thomas J. Cammarata argued the cause for respondent (Cammarata, Nulty & Garrigan, L.L.C., attorneys; Mr. Cammarata, on the brief). PER CURIAM
We granted the State leave to appeal from an order that granted defendant's motion to suppress a firearm seized following a warrantless search, and now affirm.
In determining whether a search and seizure is reasonable and therefore constitutionally valid, we have a dual inquiry -- "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 905 (1968). Defendant was subjected to a lawful motor vehicle stop for minor traffic offenses. The question in this case concerns the reasonableness of the police officer's actions that followed, specifically, his request that defendant consent to a search of his vehicle.
Acknowledging "the widespread abuse of our existing law," our Supreme Court addressed "the problems caused by standardless requests for consent searches of motor vehicles lawfully stopped for minor traffic offenses." State v. Carty, 170 N.J. 632, 640, 646, modified on other grounds, 174 N.J. 351 (2002). The Court's solution was to establish the principle that governs the legal issue here, i.e., "a police officer may not ask for consent to search a lawfully stopped vehicle or its occupants unless the officer has 'a reasonable and articulable suspicion' that the occupants are engaged in criminal wrongdoing" unrelated to the motor vehicle offense. See State v. Elders, 192 N.J. 224, 230 (2007) (quoting Carty, supra, 170 N.J. at 635).
In other words, we are . . . holding that unless there is a reasonable and articulable basis beyond the initial valid motor vehicle stop to continue the detention after completion of the valid traffic stop, any further detention to effectuate a consent search is unconstitutional.
[Carty, supra, 170 N.J. at 647.]
In imposing this standard, the Court reasoned that the absence of "an appropriate factual basis for suspicion directed at a particular automobile . . . [or] some other substantial and objective standard or rule to govern the exercise of discretion . . . 'would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.'" Id. at 641-42 (quoting Terry, supra, 392 U.S. at 22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). The Court declared that the standard was adopted for "the prophylactic purpose of preventing the police from turning routine traffic stops into a fishing expedition for criminal activity unrelated to the lawful stop." Id. at 635.
Because the totality of the circumstances must be considered in determining the legality of the search and seizure here, we review the evidence presented at the suppression hearing in some detail.
Shortly before 9 p.m. on May 6, 2013, Officer Erik Larsen of the Warren Township Police Department effected a motor vehicle stop of a green Honda Accord driven by defendant Devin Henderson. At the suppression hearing, Larsen testified he was stationed on Hillcrest Road when he observed the Honda exit from westbound Route 78, stop at the stop sign and then turn onto Hillcrest Road. He described the triggering motor vehicle violations as failing to signal the turn, N.J.S.A. 39:4-126, and for having an obstructed view, the result of an air freshener hanging from the rear view mirror, N.J.S.A. 39:3-74.
On cross-examination, Larsen admitted that, at the time of his first observation of the Honda, he noticed the automobile was occupied by "two young black males." Larsen ran the Honda's license plate on a computer in his patrol vehicle and then pulled out. He followed the Honda down Hillcrest Road, out of Warren Township, around the Watchung Circle and onto Somerset Street. He activated his overhead lights when the Honda appeared to be proceeding onto Route 22. Larsen testified he did not have a safe place to pull the Honda over prior to that time. He did not observe any other motor vehicle violations during his pursuit. Once he turned on his overhead lights, defendant pulled over without incident.
Larsen's patrol vehicle was equipped with a motor vehicle recorder (MVR) that is turned on automatically when he activates his overhead lights. The MVR recording reveals that this motor vehicle stop for failing to use a blinker and having an air freshener dangling from the rear window mirror lasted forty-three minutes until defendant was arrested. Larsen testified that the transcript of his interaction with defendant and his passenger prepared from the recording was accurate. This is significant because Larsen's testimonial account of the incident differs from what is reflected in the transcript and in the MVR recording, a copy of which has been provided to us as part of the record on appeal.
In his testimony, which was largely elicited through leading questions, Larsen stated that upon approaching the passenger side of the Honda, he observed "trace amounts of marijuana inside of the passenger compartment" and "a cigar wrapper, a plastic wrapper that had the tobacco emptied out into the wrapper" that was in the front door handle on the passenger side. These observations were allegedly at approximately 9:00 p.m., when the principal illumination came from Larsen's flashlight. Larsen also testified that he suspected criminal activity at this time:
Well, pretty much immediately, as soon as I got up to the car, it smelled like they sprayed cologne in the car. That's immediate. As soon as that happens, almost every time I end up finding something in the car. Um, so that was a red flag right away. And like I said, um, as soon as I walked up to the car and started looking around, I could see trace amounts of marijuana inside the vehicle.
Larsen asked the driver for his license and related paperwork and then asked the passenger, R.G., for his identification. He testified that it was after observing the suspected marijuana that he asked the passenger to exit the car.
The grand jury declined to indict the passenger, who is identified here only as R.G.
The recording and transcript do not support this version of events. Upon stopping the vehicle, Larsen asked whose car the Honda was, if it was registered and asked for documents. Defendant produced documentation showing his mother was the registered owner. Larsen asked where defendant and his passenger had come from and where they were heading. He then turned to the passenger and asked for his identification:
EL: . . . Ok do you have ID on you passenger?
RG: No sir.
EL: You don't have ID on you? How old are you?
RG: I'm 20.
EL: Twenty. You know you're supposed to have ID on you when you're an adult right?
Larsen continued to question the passenger, expressing disbelief at his statement that he had never had a driver's license, and then asked the passenger if he had ever received a ticket in New Jersey. The passenger answered that he had received a ticket for failing to wear a seatbelt as a passenger.
At this point, Larsen informed defendant that he stopped the vehicle because defendant did not use his blinker when he made a left exiting Route 78. After asking defendant to test the directional signal, Larsen returned to questioning the passenger, asking his name and date of birth and when he received the seatbelt ticket. Larsen called in the passenger's information to the dispatcher for verification and renewed his questioning of the passenger, asking if he had ever had a permit, if he had "ever been in trouble other than the seatbelt ticket." He asked the passenger, and then defendant, if there were any warrants outstanding for them. The next question was what had been purchased at the Short Hills Mall. After receiving the answer, "a belt," Larsen told the passenger, "Alright do me a favor passenger just step out for me for a second, I'm just waiting on my Dispatcher to get your information back, ok?"
Larsen did not claim and there was no evidence that, up to the point when he ordered the passenger out of the car, there was anything about this encounter that created a heightened awareness of danger to him. Further, neither the recording nor the transcript reflect any comments regarding alleged marijuana or the hollowed out cigar prior to his ordering the passenger from the car.
Upon separating the driver and passenger, Larsen turned his attention to quizzing each of them as to their precise movements prior to the motor vehicle stop. His stated purpose was "to get their stories away from each other so [he] could see if there was any differences in their stories." As he finished questioning the passenger about their movements, Larsen began another line of inquiry:
EL: Ok, is there anything in the car that I should know about, anything illegal?
RG: Nothing in the car that I know of.
EL: That you [k]now of? Since you've been in the car have you seen anything that might alarm me?
RG: I ain't seen nothing.
EL: No, ok I'd rather you tell me now so you can distance yourself from me because I find something in the car you know, that will be a different story, ok?
RG: I wouldn't of got in the car.
EL: Ok, I'm still waiting on my dispatcher. Do you mind if I pat you down to make sure you don't have any weapons on you? Is that ok with you? I just want to make sure you don't have any knives or anything, I'm not going to search you. What's this? Your cell phone? You don't have any knives or anything?
Larsen identified no facts at the hearing that would give rise to a concern that the passenger had any weapons. Other than the passenger's cell phone, the patdown recovered nothing more than a key and some change.
Larsen then began questioning defendant about where he and the passenger had gone and any stops they made. It was in the course of questioning defendant that Larsen said, "Ok. What's the deal with this stuff?" Larsen testified that this question concerned the emptied out cigar and that he was pointing out that it was inside the handle of the passenger side. Defendant's response was inaudible.
Larsen continued to ask defendant about the passenger and then had the following colloquy with defendant:
EL: Ok, is there anything illegal in the car?
DH: (inaudible)
EL: Any drugs in the car?
DH: (inaudible)
EL: Any weed in the car?
DH: (inaudible)
EL: Ok, cause there's just a couple of things that are sticking out to me that make me think there might be some weed in the car.
(inaudible)
EL: You know people don't empty out tobacco . . . (inaudible)
DH: Yeah. They take the cancer paper out.
EL: But this isn't cancer paper, this is tobacco.
DH: No, that's the uh, that's the tobacco.
EL: Right.
DH: (inaudible) . . . when you have a black and mild . . .
EL: I know how it works, that there's tobacco in that, not the cancer paper.
DH: Yeah because that (inaudible) broke . . . (inaudible).
EL: There's no weed in the car? Is there anything else illegal in the car? You guys have any weapons or anything like that?
The passenger answered, "No," and stated further he had no objection to Larsen searching the car. At this point, the dispatcher advised Larsen, "Negative for a Jersey DL. Negative 32, 33." Larsen confronted the passenger:
Listen, man. I'm going to give you about 5 minutes and I'm going to come back to you, and then you're going to give me your real name. OK? And if you give me a fake name I'm just going to lock you up. That's it.Larsen later learned that the dispatcher had provided him with erroneous information and that the passenger had given his correct name.
Larsen then turned his attention to defendant and questioned him about the contents of the car and if there was anything in there that did not belong to him. He asked if defendant had ever been arrested before. Defendant admitted he had been arrested "for smoking weed." Larsen asked again if there was anything in the car or on defendant that he was not supposed to have.
Next, Larsen presented defendant with a consent to search form. Larsen testified he asked defendant for consent to search the Honda
[b]ecause I believed there was some type of criminal activity going on. I saw the emptied out -- the loose tobacco in the plastic wrapper, which led me to believe that there was marijuana that was previously smoked in the vehicle; And I also saw the loose trace amounts of marijuana inside the vehicle.He explained, "People commonly empty out cigars, um, and fill them with marijuana to smoke."
Defendant expressed reluctance at giving consent, stating his mother had yelled at him for giving consent on a prior occasion, and that he did not understand why a search was being conducted. This exchange followed:
EL: Like I said you guys gave me, I'll tell you why. OK? Alright first of all there looks like there's trace amount of marijuana in the car which what I said not a big deal ok but technically that's probable cause. OK? Um . . . I'm going to give you the benefit of the doubt and I hope there's nothing else in there
. . .
DH: Uh-huh
EL: But for that reason ok along with, the emptied out blunt that I saw. Which . . . you have a legitimate reason for it but the fact that there's all that tobacco and stuff like that . . .
(inaudible)
EL: Once again, not that big of a deal . . . but also he's telling me a little bit of a different story than you are. So, it's just you know throwing up some red flags. So I just want to make sure there's nothing in the car and I'll get you guys out of here.
Defendant asked what would happen if he did not consent to the search. Larsen replied that he would have to call a judge and apply for a search warrant. When defendant referred to his mother's advice, Larsen told defendant he was eighteen, he was driving and it was up to him, not his mother. Defendant asked how long it would take to get a search warrant and Larsen answered, "Probably take honestly between an hour and three hours maybe it takes awhile." Defendant then signed the consent form.
Larsen did not advise defendant that the search would include the trunk of the vehicle. No contraband was recovered from the interior of the vehicle.
A search of the trunk of the car resulted in the recovery of a .45 caliber handgun, with serial number removed, from a black bag in the trunk. Defendant denied any knowledge of the gun. He was indicted for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5, and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d).
The suspected marijuana that Larsen identified as providing probable cause was not retrieved from the center console because, Larsen said, there was not enough to be tested. The other perception Larsen had identified as causing him to "immediately" suspect criminal activity upon approaching the passenger side was the strong smell of cologne. He testified he did not remember recovering a cologne bottle or any other odor-masking item, that he was not looking for that specifically and would not have seized a bottle of cologne in any event. As a result, the only evidence retrieved from the car that was submitted to corroborate Larsen's account that reasonable suspicion existed was a plastic wrapper containing tobacco and a photograph that purported to depict the traces of marijuana too insignificant to seize.
The case for reasonable suspicion was not helped by the testimony of Sergeant Eric Yaccarino, who arrived at the scene after defendant's car was stopped. He testified he believed Larsen told him he smelled marijuana coming from the interior of the vehicle and that when he was standing by the car, he had also smelled the odor of marijuana coming from the vehicle. These factual assertions were completely absent from Larsen's account and were not included in any report prepared of the incident. The State does not rely upon or even mention this assertion to support its argument. To the contrary, it implicitly repudiated Yaccarino's assertion, stating, "Officer Larsen did not smell marijuana."
At the suppression hearing, the State argued the stop and search of defendant's vehicle were constitutionally valid because the officer observed a traffic violation and, following the lawful stop, had reasonable and articulable suspicion of criminal activity to justify his request for a consent to search, which was freely given. Defendant argued that Larsen lacked reasonable and articulable suspicion; that the search exceeded the scope of the consent given; and that the consent was not voluntary.
At the suppression hearing, the State also argued that disparities in versions of events given by defendant and R.G., specifically whether or not they had stopped for gas, contributed to the grounds for reasonable suspicion. That argument has not been advanced on appeal.
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The motion judge granted the suppression motion. He concluded that the facts relied upon by the State failed to provide reasonable and articulable suspicion to justify the continued roadside detention or Larsen's request for consent to search the vehicle. The judge also found that defendant's consent to the search was not voluntary.
On appeal, the State argues that Larsen's observations of marijuana on the center console and the insides of a hollowed out cigar in the passenger door constitute reasonable and articulable suspicion of criminal activity that justified the request for consent to search. The State also argues that defendant voluntarily consented to the search after being advised of his right to refuse and the consequences of a refusal.
We review the trial court's decision to grant the suppression motion with deference. We "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." Elders, supra, 192 N.J. at 243. The trial court's credibility assessments are also entitled to our deference when those findings are supported by sufficient credible evidence in the record. See Id. at 243-44. However, we are "neither bound by, nor required to defer to," the trial court's legal conclusions. State v. Gandhi, 201 N.J. 161, 176 (2010).
In this case, the motion judge's application of legal principles to his factual findings is strongly influenced by an implicit credibility assessment of Larsen's testimony, particularly as to whether he actually observed marijuana in the car. Although the judge "acknowledged" that Larsen observed "trace amounts of what he suspected to be marijuana," we view that statement as an acknowledgement of Larsen's testimony rather than a finding of fact. The judge's skepticism on this point is readily apparent:
With regard to the alleged observation of traces of marijuana in the vehicle, [Larsen's] testimony was that he never seized the residue or had it analyzed, and he never advised either driver or passenger of his alleged observation.The motion judge also rejected an alternative basis for finding reasonable suspicion of criminal activity:
(Emphasis added).
Finally, Officer Larsen attempted to establish justification for asking for consent by contending he smelled the strong odor of cologne (an air freshener was attached to the rearview mirror) which he alleged was being used to mask the odor of marijuana. (No discussion of this observation is heard on the MVR). Officer Larsen opined that the odor was not from the air freshener despite the fact that no evidence of cologne use was found in the vehicle. More important, this testimony was contradicted by Sergeant Yaccarino who testified that both he and Officer Larsen smelled the strong odor of marijuana emanating from the vehicle, not cologne.
The motion judge concluded that Larsen's conduct "as evidenced by the audio/video recording of the stop, clearly shows that he was acting on a 'hunch' as opposed to reasonable and articulable suspicion that either the driver or the passenger was involved in criminal activity."
The record provides support for the motion judge's implicit rejection of Larsen's claim that he observed marijuana in the car prior to asking defendant for his consent to search. Unlike Larsen's discovery of the hollowed-out cigar and tobacco, neither the transcript nor the MVR recording document when he purportedly first saw the traces of marijuana. The photograph taken of the console was unremarkable, depicting a less than tidy interior with dust and indeterminate specks of detritus. It is insufficient to corroborate Larsen's claim that he observed traces of marijuana on the console. Given the critical significance of the presence of marijuana for demonstrating the existence of reasonable suspicion, the failure to secure any of the trace amounts for analysis casts serious doubt on the assertion, particularly since the car was taken into police custody following defendant's arrest.
The motion judge's conclusion that the officer was acting on a hunch is further supported by the record of the entire encounter. We do not view Larsen's demeanor to be abusive. But, from the outset, his persistent questioning of both defendant and his passenger reflected an apparent objective to find some reason to search the vehicle in the hope of finding drugs. The questioning began with a demand for the passenger's identification, questions about prior arrests and outstanding warrants, whether there was anything illegal in the car, and separating the two to determine if there were any discrepancies in their accounts regarding their shopping trip. These inquiries are unrelated to the minor traffic offenses for which defendant was stopped. His persistent questioning, rejection of responses given by defendant and R.G., and probing for possible criminal activity for more than forty minutes reflect an improper objective to do more than issue a citation for minor motor vehicle violations.
We also find significance in Larsen's ordering R.G. to step out of the vehicle, which is fairly considered as part of the totality of the circumstances. In State v. Smith, 134 N.J. 599 (1994), the Court instructed that an order to a passenger to exit a vehicle stopped for a traffic violation is subject to review under the same standard as that applicable to a Terry stop. Id. at 618-19 (citing Terry, supra, 392 U.S. 1, 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). The Court unequivocally rejected "the proposition that such an intrusion will be justified solely because of an officer's 'hunch,'" and stated "the officer must be able to articulate specific reasons why the person's gestures or other circumstances caused the officer to expect more danger from this traffic stop than from other routine traffic stops." Id. at 619. The supporting facts must be such "that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car." Id. at 618, see also State v. Mai, 202 N.J. 12, 22-23 (2010) (reaffirming Smith and refusing to hold that an officer making a traffic stop may routinely order passengers out of the stopped car pending completion of the stop).
Larsen's stated purpose in ordering R.G from the car was to ascertain if he could uncover any discrepancies in the accounts given by defendant and R.G. The order was thus issued in an effort to implement an overarching goal to cobble together facts that would support a consent to search, rather than an objective response to a heightened awareness of danger.
In sum, we agree with the motion judge that Larsen lacked the requisite reasonable suspicion to ask defendant for consent to search his vehicle because we do not find the State presented credible evidence that marijuana was present in the vehicle. In light of this conclusion, we need not address whether defendant's consent was voluntarily given.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION