Opinion
DOCKET NO. A-2974-10T4
03-22-2012
STATE OF NEW JERSEY, Plaintiff-Appellant, v. AAZIM LOVE, Defendant-Respondent.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (Matthew M. Bingham, Assistant Prosecutor, of counsel; Mr. Bingham and Charles J. Wettstein, on the brief). Helmer, Paul, Conley & Kasselman, P.A., attorneys for respondent (Robert J. Luther, of counsel; Mr. Luther and Sean T. Conley, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 10-05-0306.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (Matthew M. Bingham, Assistant Prosecutor, of counsel; Mr. Bingham and Charles J. Wettstein, on the brief).
Helmer, Paul, Conley & Kasselman, P.A., attorneys for respondent (Robert J. Luther, of counsel; Mr. Luther and Sean T. Conley, on the brief). PER CURIAM
On leave granted, the State appeals from the trial court's order suppressing a loaded handgun seized after defendant orally consented to the warrantless search of an automobile he had been driving. The court found the consent was neither knowing nor voluntary, and the inevitable discovery doctrine did not apply to sustain the search. We reverse.
I.
The motion to suppress arose out of a motor vehicle stop of defendant early in the morning of January 2, 2010. New Jersey State Trooper Rodney Yamasaki, initially acting alone, conducted the stop. Soon thereafter, State Trooper Andrew Merlock arrived on the scene, and eventually, so did two other troopers.
At an evidentiary hearing, the court heard testimony from Merlock and Yamasaki. The court also admitted into evidence an on-board video recording of the traffic stop, which begins as defendant's vehicle comes to a halt at 1:26 a.m., and ends at 2:20:04 a.m., after Yamasaki and defendant arrive at the station. Although the court credited the troopers' testimony, the principal basis for the trial court's decision was the video recording of the stop. However, based on our independent review of that recording, we reach and set forth below, factual findings that in some respects are at odds with those of the trial court.
Upon our review, without objection from defendant, the State provided us with the full video recording that the trial court admitted into evidence, which neither party included in the appendix on appeal.
One additional preliminary point must be made about the record. As the tape began to be played in the hearing, the court inquired if there was anything relevant on the video recording between the time defendant stopped his vehicle, and the time of his arrest. The prosecutor did not respond and defense counsel stated he had no objection to forwarding it to 1:39 a.m. Consequently, the court understandably did not view the first twelve minutes of the stop. Later in the hearing, with the State's acquiescence and the express consent of defense counsel, the court similarly abridged the video. The court terminated viewing that portion of the video immediately before it depicted the search, after the parties stipulated that the search led to seizure of the loaded handgun. For the purposes of decision, and without deciding whether we are bound to do so, we also have restricted our review to the abridged video actually reviewed by the trial court on the record.
Based on our independent review of the video recording, but deferring to the trial judge's findings that were based on the live testimony, the record evidence reflects the following:
As depicted on the video recording, Yamasaki stopped defendant at 1:26 a.m. on January 2, 2010 in Deerfield Township, Cumberland County, after observing defendant speeding. Defendant was driving a 1999 four-door Lexus sedan. Yamasaki testified at the suppression hearing that he learned that defendant's driving privileges were suspended and there were active municipal warrants for his arrest from Bridgeton for apparent failure to pay fines of $500 and $300.
We note for the record that the skipped first twelve minutes of video depicted the following: defendant falsely claimed that he did not have his driver's license with him because he left it in another car and not because his privileges were revoked; he was unable to clearly identify who owned the vehicle; and he is also heard, shortly before the arrest, discussing his location near a church with someone in a cell-phone conversation, apparently arranging for retrieval of the car.
Yamasaki is seen at the side of defendant's vehicle, as defendant exits his car at 1:39 a.m. and, without being told, turns toward the car to prepare to be restrained. As Yamasaki placed defendant under arrest, he said, "I have warrants for your arrest," and referred to the Bridgeton warrants. Defendant calmly said, "Alright, no problem." Defendant then asked Yamasaki if the officers could park the vehicle near the church, and Yamasaki replied, "Yeah, we can take care of that." Yamasaki then closed handcuffs on defendant. Although under arrest, defendant was calm, conversational, and showed no outward signs of stress or fear.
After Yamasaki had removed defendant from the vehicle, the driver's door was left open. Yamasaki escorted defendant to the patrol car, and apparently conducted a search of his person incident to arrest; he removed personal items including cash, and placed them on the hood of his vehicle, where they were visible on the video.
Meanwhile, Merlock peered into the vehicle with the help of his flashlight. He was obviously focused on the rear of the passenger compartment. As Merlock explained at the hearing, which the court credited, Merlock had spotted a black shoulder holster in the back of the vehicle. He then partly inserted his head into the front compartment of the vehicle to see if there was a gun as well. The recording then depicts Merlock walk back to Yamasaki's vehicle, where defendant was still standing at the front passenger side of the vehicle, in Yamasaki's custody. Merlock asked, "What's that holster doing in the car?"
Although the complete exchange between Merlock and defendant is unintelligible from the video, Merlock can be heard asking again, "You don't know what that holster is in there for?" Defendant discernibly stated to Merlock, "No. There's nothing in the back seat."
Merlock then returned to defendant's vehicle, opened the rear driver's side door, leaned in and removed an ammunition magazine and a shoulder holster. Merlock was not asked in the hearing whether he had seen the magazine before entering the vehicle. Meanwhile, the wind blew away some of the currency that Yamasaki had placed on the hood of the vehicle along with defendant's other possessions.
Merlock then returned to Yamasaki's vehicle and placed the holster and magazine on the hood of his car, where they were clearly displayed in the video. Merlock then stated, "That's P.C. right there," indicating his belief that there was probable cause to conduct a further search. A third and fourth trooper arrived on the scene and one suggested that Yamasaki call to report what had been found. Defendant was apparently concerned with the currency and asked Yamasaki if it could be retrieved and Yamasaki assured him that it would. Yamasaki then asked another officer to walk to the other side of the highway to retrieve defendant's currency.
Yamasaki and defendant engaged in additional conversation that is partly unintelligible. Then Yamasaki clearly stated over his radio, "We're requesting consent on this vehicle. . . . I'll give you the information when you're ready." Yamasaki was seeking his superiors' permission to request defendant's consent to conduct a search.
Defendant then volunteered, "I'll give you consent to do whatever you all want to do." Yamasaki then replied to defendant, "I got to ask for it, first," apparently referring to his request of his superiors.
We digress to note that the trial judge was unable to discern defendant's statement giving consent. During the hearing, the judge stated that he found it difficult to hear the dialogue between Yamasaki and defendant. He inquired of the prosecutor whether defendant had, at that point, consented to a search. The prosecutor stated, "I did not hear anything on the video that would indicate that, Judge." However, the video recording clearly reflects defendant consented and the State so asserts on appeal.
In a partial transcript of the stop, which the State has included in its appendix without defendant's objection, the State quotes defendant almost the same as we have. However, the State's transcript was neither certified nor presented to the trial judge, who inquired whether a transcript was prepared. See State v. Wilson, 178 N.J. 7, 14 (2003) (State may not rely on "proof[s] . . . not submitted as part of the lower court's record."). Therefore, we rely on the video recording itself, which was admitted in evidence.
Yamasaki then reported over the radio that the holster and magazine were seen in plain view on the driver's side. While Yamasaki awaited instructions, defendant engaged in conversation with Yamasaki. He asked Yamasaki how much money was retrieved, Yamasaki responded five dollars, and defendant said that there was more money. However, he was neither agitated or upset. Yamasaki said he put a lot of money back in defendant's pocket.
After another radio transmission that is unintelligible, the following dialogue ensued, in which defendant affirmed that he consented to the search, emphasizing that the car was not his:
YAMASAKI: Aazim, can you hear me? I'm going to read you this. I got to read this to you verbatim, alright?
DEFENDANT: What is it?
YAMASAKI: It's a consent to search of your vehicle.
DEFENDANT: Listen, listen. I ain't even going to hold you. You ain't even got to read it.
YAMASAKI: No, I got to do it.
DEFENDANT: Oh, you got to do it?
YAMASAKI: Yeah. It's just, you know what I mean?
DEFENDANT: Well, you know it ain't my car, though, right?
YAMASAKI: Yeah, that's fine. But, you're the driver of the vehicle right now.
DEFENDANT: Yeah.
YAMASAKI: Yeah.
Yamasaki then began reading the consent to search form, which prompted defendant to withdraw his initial consent, which apparently surprised Yamasaki:
YAMASAKI: Yeah. I Aazim M. Love residing [in] Bridgeton, New Jersey, Apt. 99, hereby authorize Detective II R. Yamasaki 5920 member of the New Jersey State Police and any other officer designated to assist to conduct a search of a 2000 Silver Lexus
bearing New Jersey registration Uniform . . .
DEFENDANT: Yeah, but I'm not doing that though.
YAMASAKI: What's that?
DEFENDANT: You said. Read it again.
YAMASAKI: What do you mean?
DEFENDANT: You all got to get a search warrant for that.
YAMASAKI: What's that?
DEFENDANT: I said you all going need a search warrant for that.
YAMASAKI: That's fine. I still got to read this thing.
DEFENDANT: Okay.
YAMASAKI: Alright.
DEFENDANT: Then go.
Yamasaki paused. He testified at the hearing that he was inserting registration information in the consent form. Upon discovering a discrepancy in the registration information defendant provided, he paused to edit the form:
YAMASAKI: Alright you gave me the wrong registration. That's all. [pause] How come the tags aren't the same?
DEFENDANT: I don't know, man.
YAMASAKI: Alright. You gave me the wrong registration. That's all.
Although defendant had insisted that the State obtain a search warrant, he inquired whether he would be detained at the scene during a search:
DEFENDANT: So while they search that we gotta sit here.
YAMASAKI: Uh huh.
DEFENDANT: How long you think we going to be here?
Yamasaki explained that he would respond after reading the consent-to-search form. As discussed below, Yamasaki misread a couple of lines. Yet, defendant continued to withhold consent:
YAMASAKI: Well, let me finish reading this you and get the right info in here and I'll let you know. Alright?
Alright, I made the correction on here. I went by your registration and not by what's on your tag. Um it's a 99. A 1999 silver Lexus bearing New Jersey registration .... Owner Yolanda L. Black. The owner? Ok. The stop's ah the motor vehicle stop is located at Morton Avenue and Maple Avenue, Rosenhayn, New Jersey.
I further authorize, authorize the above member of the New Jersey State Police to remove and search any letters, documents, papers, materials or property which is considered pertinent to the investigation provided that I am subsequently given a receipt for anything which is removed. I have knowingly and voluntarily given my written consent to search the vehicle described above. I have been advised by Detective II R. Yamasaki 5920 and fully understand that I have the right to refuse giving my consent to search and may depart
if no other reason exists for detaining me. I have further been advised that I may withdraw my consent at any time for the reason that, ah, for the reason and that I have the right to be present during the search, uh at the location consistent with the safety of all persons present. Date. Time. Obviously you can't sign now, we'll have you sign that back at the station. I waive my right to be present during the search of the vehicle which obviously you are here. And consent granted or denied.
DEFENDANT: Denied.
YAMASAKI: You're denying it.
DEFENDANT: Yeah.
Yamasaki then informed defendant that in light of defendant's refusal to consent, the vehicle would be impounded and the State would seek a search warrant. That prompted defendant to agree to the search, and to confirm that the vehicle would remain on the scene for retrieval:
YAMASAKI: Ok, do you understand what's going to happen?
DEFENDANT: No.
YAMASAKI: The vehicle's going to be towed and we're going to apply for the search warrant and, we're going to go back to the station, the vehicle's going to come back. We're going to type up the search warrant.
Okay, I'm just letting you know if we, if you give us consent now we'll search the car, done, and we're out of here. I mean it's going to be a little bit you know a little bit either way but it's going to be
longer with the search warrant, so, you're denying the consent?
DEFENDANT: No, you can search it.
YAMASAKI: What's that? Would he . . . no no.
DEFENDANT: Search it.
YAMASAKI: Search it here or you want me to apply for a search warrant?
DEFENDANT: Here, here.
YAMASAKI: Here?
DEFENDANT: I said here.
YAMASAKI: So consent's granted.
DEFENDANT: Yeah. Consent's granted.
YAMASAKI: 4 com, 5920. Alright consent was read to the driver. Uh consent's granted.
DEFENDANT: Alright you think after they get done would they park it there or are they still going to tow it away?
YAMASAKI: Yeah. We'll park it.
Defendant granted consent at 1:55 a.m., and Yamasaki reported to superiors that consent was granted. At 1:56:14, the court terminated its viewing of the video recording. The parties stipulated that the police thereafter seized a loaded handgun from the trunk of the car.
II.
In its written decision suppressing the handgun, the court found the consent was involuntary because (1) the trooper's misreading of the consent form misinformed defendant of the scope of the proposed search and his right to refuse; and (2) defendant was subject to coercive circumstances.
With regard to Yamasaki's reading of the standard consent form as set forth in the recording, the court held:
Trooper Yamasaki advised the defendant that they wanted to search the vehicle and were seeking the defendant's consent. The defendant's initial response was "You all have to get a search warrant for that." After a short delay and without any further conversation, Trooper Yamasaki began reading the defendant the standard Consent to Search form (S-1 in evidence). The trooper was in the front seat and the defendant was in the back seat as the trooper read S-1 to the defendant. The Trooper did not read the form to the defendant verbatim. Where the form says and refers to "complete search" of the vehicle, the trooper omitted the word "complete." Secondly, where the form says, "I have been further advised that I may withdraw my consent at any time for any reason and that I have the right to be present during the search at a location consistent with the safety of all persons present," the trooper actually read "I have further advised that I may withdraw my consent at any time for the reason that - uh the reason that I have the right to be present during the search at a location consistent with the safety of all persons present."The court concluded, "These deviations were enough to alter the defendant[']s understanding of what he was consenting to and compromised his knowledge of his right to withdraw his consent at any time."
Following the reading of the consent form, the defendant twice clearly denied the trooper the right to search the vehicle. Trooper Yamasaki then advised the defendant that they would impound his car and obtain a search warrant, after which the defendant finally gave consent to search the car. The defendant did not sign the consent to search form because he was handcuffed. The subsequent search by the troopers revealed a gun in the trunk of the car.
Relying on State v. King, 44 N.J. 346, 352 (1965), the court also found several factors tending to show that defendant was coerced to consent. "[D]efendant was under arrest, initially refused consent, must have known contraband would be discovered, and the defendant was handcuffed[.]"
The trial court also concluded that the search of the passenger compartment and seizure of the holster could not be justified based on the inevitable discovery doctrine. The court found it probable that, instead of seeking consent to search, the State could have obtained a warrant to search the car, based on the seizure of the holster, defendant's outstanding arrest warrant, and his driving on the revoked list. Yet, the court found it insufficient to establish inevitable discovery that Yamasaki testified that he told defendant on the scene that if he did not consent to a further search of the vehicle, after seizure of the holster, then police would impound the vehicle and obtain a warrant. "An assertion to the defendant that the car would be impounded and a search warrant would be obtained does not show that there would have been inevitable discovery wholly independent of the unlawful taking of the empty holster."
On appeal, the State concedes the seizure of the empty holster was unlawful. Yet, the State argues that the trial court should have denied suppression because (1) both the holster and gun would inevitably have been discovered through lawful means; and (2) defendant validly consented to a search of the trunk. As to the former, the State argues that upon observing the holster, if Merlock had not seized it, the State would have sought and obtained valid consent to search the vehicle, and therefore inevitably would have seized the holster and discovered and seized the firearm. Also, even if we affirm the trial court's finding that the consent was involuntary, the State argues that based on the observation of the holster and the other circumstances, the police would inevitably have obtained a warrant and ultimately seized both the holster and firearm.
III.
A.
We begin by addressing the standard of review, particularly as applied to appellate review of fact findings based on video recordings admitted in evidence by the trial court. Although an appellate court has access to the same video recording as a trial court, an appellate court may not simply substitute its assessment of that evidence for the trial court's if that assessment is also informed by the trial court's opportunity to hear and consider live testimony. State v. Elders, 192 N.J. 224, 244-45 (2007) (internal citations omitted).
[A] motion judge [is] entitled to draw inferences from the evidence and make factual findings based on his [or her] "feel of the case," and those findings [are] entitled to deference unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require[] appellate intervention.
[Id. at 245.]
On the other hand, if the trial court's decision is based solely on its evaluation of a video recording of the police's interaction with a defendant, then we are not required to defer to the trial court, but may reach our own findings based on our independent review of the video recording.
[W]hen the trial court's sole basis for its findings and conclusions is its evaluation of a videotaped interrogation, there isWe may also consider the video-recording to assist us in our "evaluation of the motion court's application of legal principles to the essentially undisputed facts. . . ." State v. Baum, 199 N.J. 407, 423 n.4 (2009). We also owe no deference to a court's fact-findings that depend on an "obvious overlooking or under-evaluation of crucial evidence." State v. Johnson, 42 N.J. 146, 162 (1964). Finally, we exercise plenary review of a trial court's application of the law to undisputed facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).
little, if anything, to be gained from deference. In that circumstance, as we have observed, appellate courts are not confined to a review of a transcript nor obliged to defer to the trial court's findings, but may consider the recording of the event itself.
[State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2012).]
Consistent with these standards, we conclude the court "overlook[ed] . . . crucial evidence" including: defendant's outward demeanor which belied his will was overborne; defendant's concern that the car remain on the scene and not be impounded; and defendant's initial consent to search. Defendant clearly stated, "I'll give you consent to do whatever you all want to do," which preceded both his objection to a warrantless search, and his subsequent consent once he learned his refusal would lead the police to impound the vehicle while seeking a search warrant.
We find no fault in the trial judge, whose inability to discern the statement was apparently due to poor or poorly operated equipment.
Nor are we bound by the prosecutor's inability to discern defendant's initial statement of consent. The prosecutor did not stipulate to what defendant said or did not say; he simply stated he could not hear the recording. Cf. Howard Sav. Bank v. Liberty Mut. Ins. Co., 285 N.J. Super. 491, 497 (App. Div. 1995) (appellate court is bound by parties' factual stipulation). While we are generally precluded from addressing issues not raised before the trial court, the State certainly raised defendant's consent; and, although the State did not rely in the trial court on the particular statement we have addressed, the statement was placed in evidence before the court. See Docteroff v. Barra Corp., 282 N.J. 230, 237 (App. Div. 1995) (appellate court may address issue timely raised in the trial court but under a different theory). Moreover, in the interests of justice, we cannot overlook a fact as critical as defendant's voluntary consent to search. See Johnson, supra, 42 N . J. at 162 (interests of justice may warrant appellate intervention and correction of trial court's fact-finding).
Concededly, although the State asserts on appeal, through its submitted transcript, that defendant made the consent statement, it does not ground its consent argument on that fact.
B.
We next consider whether defendant consented to the search of the vehicle he was driving during the early morning of January 2, 2010. The State must prove that consent to a warrantless search was "unequivocal, voluntary, knowing and intelligent." State v. Sugar (Sugar III), 108 N.J. 151, 156 (1987). See also State v. Johnson, 68 N.J. 349, 354 (1975) (requiring proof that a defendant knew he had the right to refuse consent to search, in order to establish that consent was voluntary). The State must establish consent by "clear and positive testimony." King, supra, 44 N.J. at 352.
When consent to search is sought following a motor vehicle stop, the State must establish at least a "reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in criminal activity." State v. Carty, 170 N.J. 632, 647 (2002). Police may not seek consent to search if they lack reasonable and articulable suspicion beyond the initial motor vehicle violation prompting the stop. Ibid. The court's finding that consent is knowing and voluntary is necessarily a case-specific and fact-sensitive one. King, supra, 44 N.J. at 353.
Over fifty-five years ago, the Supreme Court set forth a non-exclusive list of factors a court may consider in determining whether consent is voluntary.
Among those factors which courts have considered as tending to show that the consent was coerced are: (1) that consent was made by an individual already arrested; (2) that consent was obtained despite a denial of guilt; (3) that consent was obtained only after the accused had refused initial requests for consent to search; (4) that consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered; (5) that consent was given while the defendant was handcuffed.However, no one factor is determinative, and a trial court must consider the totality of circumstances. Id. at 353.
Among those factors which courts have considered as tending to show the voluntariness of the consent are: (1) that consent was given where the accused had reason to believe that the police would find no contraband; (2) that the defendant admitted his guilt before consent; (3) that the defendant affirmatively assisted the police officers.
[King, supra, 44 N.J. at 352-53 (citations omitted).]
The King Court unquestionably did not consider that someday on-board cameras would record audio and video of an officer's request for consent and a suspect's response during a motor vehicle stop. However, today, a trial court may consider reliable recorded evidence of the defendant's demeanor — for example, whether he appears under stress and fearful, or comfortable and calm. In Diaz-Bridges, supra, 208 N.J. at 565, the Court observed that a defendant's "actions or behaviors" as depicted on a videotaped interrogation, "form part of the inquiry" regarding whether a defendant exercised his right to remain silent. Likewise, a suspect's recorded "actions or behaviors" are a critical part of the inquiry whether he or she voluntarily consented to a search.
In determining whether a suspect has voluntarily consented to a search, a court must also consider whether police expressly informed the defendant of the right to refuse, and whether the defendant signed a form confirming consent. See Carty, supra, 170 N.J. at 639 (discussing State Police's development of consent to search form). "[T]o determine whether a person's consent was voluntarily given or coerced, the proper analytical framework is whether a person has knowingly waived his right to refuse to consent." State v. Domicz, 188 N.J. 285, 308 (2006). See also Johnson, supra, 68 N.J. at 354 ("One cannot be held to have waived a right if he was unaware of its existence."). Knowledge may be proved through means other than explicit advice to the defendant. However, a defendant's knowledge of his or her rights is less doubtful if the police can prove they expressly advised a defendant of his or her rights. Ibid.
The court applied the King factors and found that coercion-positive factors one, three, four and five were present, and all of the voluntariness-positive factors were absent. However, the court did not expressly consider the "actions or behaviors" of defendant depicted on the video recording, which tend to show that Yamasaki did not exert pressure on defendant, and defendant acted freely in granting consent to search. See State v. Carvajal, 202 N.J. 214, 226 (2010) ("To act voluntarily is to act with a free and unconstrained will, a will that is not overborne by physical or psychological duress or coercion."). As the recording clearly reflects, defendant appeared at ease throughout his interaction with Yamasaki. He was calm and unfazed at the prospect of arrest. He evidenced no fear or stress.
The court also gave insufficient weight to defendant's evident motive in consenting to search — to avoid impoundment of the vehicle. He obtained Yamasaki's agreement to park the car at the nearby church as he was being placed under arrest. After he changed his mind and insisted that police obtain a search warrant, Yamasaki informed defendant the vehicle would be removed to the station while police awaited a warrant. Defendant immediately responded by reverting to his original position, and consented to the search, and confirmed the car would be parked at the scene.
Yamasaki's statement that a warrant would be obtained was permissible, as it "was a fair prediction of events that would follow, not a deceptive threat made to deprive [defendant] of the ability to make an informed consent." State v. Cancel, 434 N.J. Super. 430, 434 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993). We consider it non-debatable that probable cause existed for issuance of a search warrant under the totality of the circumstances, which included: defendant was speeding; his driving privileges were suspended; he attempted to mislead Yamasaki about his license status; the registration defendant provided did not match the tags; defendant had municipal warrants; a shoulder holster — a item often used to conceal a weapon while carrying it — was in plain view on the back seat of the automobile. Cf. United States v. Spencer, 1 F.3d 742, 746 (9th Cir. 1992) (police justified in believing that a firearm might be in vehicle after discovering shoulder holster under occupant's jacket and other circumstances).
Although the trial court recognized the inherently coercive nature of an arrest, other facts moderate the impact of the arrest in this case. "[A] custodial interrogation by law enforcement officers is inherently coercive" in part because of the "inherent psychological pressure on a suspect in custody." State v. P.Z., 152 N.J. 86, 102 (1997). Thus, a defendant restrained and under arrest may feel less free to say no to a police officer requesting consent to search, just as a suspect in custody may feel "compel[led] to speak where he would not otherwise do so freely." Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L. Ed. 2d 694, 719 (1966).
Indeed, even when not under arrest but simply stopped, the overwhelming majority of motorists consent to a requested search, even when advised of the right to refuse. See Carty, supra, 170 N.J. at 644 (discussing that a motorist may feel compelled to consent based on inherent nature of motor vehicle stop); Note, Effective Warnings Before Consent Searches: Practical, Necessary and Desirable, 45 Am. Crim. L. Rev. 1185, 1205 (2008) (according to analysis of data collected under consent decree governing State Police, 88.3 percent of pre-warned motorists consented to searches) ("Effective Warnings"). On the other hand, the overwhelming majority of those consenting have nothing to hide. Carty, supra, 170 N.J. at 645 (analyzing early consent decree data, consent searches yield twenty percent crime detection rate); Effective Warnings, supra, 45 Am. Crim. L. Rev. at 1205 (analyzing later consent decree data, less than fourteen percent of consent searches resulted in seizures of evidence even where request had to be based on reasonable and articulable suspicion of crime).
However, we have observed numerous instances in which a valid consent to search was obtained when a suspect not only was detained, but was detained unlawfully. State v. Chapman, 332 N.J. Super. 452, 468 (App. Div. 2000). The coercive effect of custody is counteracted in part by the officer's warning, just as it is in the Miranda context. See Effective Warnings, supra, 45 Am. Crim. L. Rev. at 1207-08 (suggesting that New Jersey State Police's policy of warning suspects of the right to refuse consent to search may alleviate coercive nature of police-citizen encounter). Moreover, here, defendant was arrested for municipal warrants totaling $800. Although he knew he would be taken into custody on the warrants, he may have been confident, before discovery of the handgun, that he would be able to secure his release with relative ease and promptness. Thus, the coercive effect of arrest was further minimized.
The trial court also erred in finding defendant "refused initial requests for consent," as contemplated in King, supra, 44 N.J. at 353 (emphasis added). Rather, defendant granted initial requests. Defendant volunteered, "I'll give you consent to do whatever you all want to do." When Yamasaki stated he needed to read the consent-to-search form, defendant stated, "I ain't even going to hold you. You ain't even got to read it." When Yamasaki insisted, defendant reminded him that the car was not his. Only after Yamasaki read the consent-to-search form did defendant insist that police obtain a search warrant.
It is significant that defendant here initially consented to a search. If a suspect's initial position is one of non-cooperation, then a change in position might reasonably tend to indicate that coercion or duress was brought to bear. However, where a suspect initially, voluntarily, and repeatedly states he consents to a search, his later refusal should not necessarily be viewed as a firmly held position. Nor is it so probable that reversion to the suspect's original position was accomplished by coercing the suspect or overbearing his will.
We also differ with the court's finding that defendant must have known that contraband would be found, which is another King factor relied on by the court to show lack of voluntariness. The court's conclusion apparently was based on the undisputed fact that defendant had been driving the vehicle where the gun was found. However, at best, the proofs were equivocal. The court did not address the record evidence tending to support lack of knowledge, including: defendant's protestations that the vehicle was not his; and his statement that he believed there was nothing on the rear seat where the holster was found. The absence of knowledge that contraband is present, as defendant asserted here, is a King factor tending to show consent was voluntary.
Although the court, with the State's acquiescence, stopped viewing the video recording before the point at which the search was conducted, we note, for the sake of the record, that the remainder of the video recording included additional evidence that defendant lacked knowledge of the gun. First, when police asked defendant whose coat they had discovered in the trunk during the search, defendant stated he had never "been in" the trunk. Second, during the ride back to the station, after Yamasaki informed defendant he would be charged with possession of the handgun, defendant told Yamasaki, "I want to go to trial. That ain't my car." Third, defendant added, "If I had known there was a handgun in the car, I would have never gave you consent to search."
--------
Lastly, the court placed undue emphasis on Yamasaki's minor misstatements in reading the standard consent form, and insufficient weight on the fact that Yamasaki did expressly advise defendant of his right to refuse, and to withdraw consent at any time, and defendant refused consent, and only later consented to the search, which tends to show his consent was voluntary. Although Yamasaki asked defendant to authorize the police "to conduct a search" as opposed to a "complete search," the meaning was clear. We do not believe it significant that in advising defendant that he could withdraw his consent "at any time," Yamasaki omitted the words, "for any reason," and substituted words "for the reason that, for the reason," which did not complete the sentence. Yamasaki then stated, "and that I have the right to be present during the search," which completed the sentence that began, "I have further been advised that."
Defendant's knowledge of his right to refuse was evident even before Yamasaki informed him. When Yamasaki first began reading the consent form, defendant interrupted. He not only stated, "I'm not doing that though," but also grounded his position in the law, stating, "You all got to get a search warrant for that."
Thus, based on our review of the video recording in evidence, including those portions the trial court apparently overlooked, we find the State has met its burden to show that defendant intelligently, voluntarily, and knowingly consented to the search of the vehicle.
Although the consent search followed the concededly illegal seizure of the holster and empty magazine, we are also satisfied that the consent was not the product of the illegal seizure. See Chapman, supra, 332 N.J. Super. at 470-71 (sustaining consent search following allegedly illegal detention). The exclusionary rule will not apply where the connection between police illegality and the seizure of evidence is sufficiently attenuated. See, e.g., State v. Williams, 192 N.J. 1, 15 (2007). We look to three factors to assess attenuation: "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct." Ibid. (internal quotation and citation omitted).
The first factor, temporal proximity, favors suppression, but it is the least weighty of the three factors. Id. at 16. However, the intervening circumstance here is defendant's consent, which would have been sought regardless of whether the police seized the holster after observing it, or left it in place. Moreover, the police misconduct — seizure of the holster — was not flagrant. The holster was in plain view. Defendant denied knowledge of it. The officer had a reasonable concern that where there was a holster, there might be a gun, and safety was his motivating concern. Moreover, the officer simply confirmed what he already knew by his plain view observation — there was a shoulder holster in the vehicle.
In sum, the seizure of the gun from the trunk of the vehicle should not have been suppressed because defendant knowingly and voluntarily consented to the search, and the seizure was sufficiently attenuated from the earlier illegal entry into the vehicle.
C.
We also sustain the search on an alternate basis: inevitable discovery. To establish inevitable discovery, the State must prove, by clear and convincing evidence, that evidence obtained through an illegal search would inevitably have been discovered, and therefore should not be suppressed. State v. Sugar (Sugar II), 100 N.J. 214, 240 (1985). The State must show:
(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.See also Wayne R. LaFave, Search and Seizure § 11.4(a) at 278-79 (2004) (stating that application of inevitable discovery rule most likely justified where "investigative procedures were already in progress prior to the discovery via illegal means . . . or where the circumstances are such that, pursuant to some standardized procedures or established routine a certain evidence-revealing event would definitely have occurred later.").
[Id. at 238.]
The doctrine has been applied where the State successfully establishes that independent lawful means would have inevitably led to discovery of evidence that was illegally seized. See State v. Johnson, 120 N.J. 263, 290 (1990) (reversing rejection of inevitable discovery argument where detective already in process of preparing affidavit in support of search warrant based on information independent of the tainted source); State v. Finesmith, 406 N.J. Super. 510, 522-24 (App. Div. 2009) (applying inevitable discovery where, had police not discovered laptop as a result of defendant's suppressed statement, it would have discovered it pursuant to warrant that State had already independently procured); State v. Hinton, 333 N.J. Super. 35, 41-42 (App. Div.) (inevitable discovery doctrine applies where backup officer's contemporaneous and independent computer check would have produced same information obtained from unlawful entry into vehicle), certif. denied, 165 N.J. 678 (2000).
Yamasaki stated that if defendant did not consent to a search, he would seek and obtain a warrant to search the vehicle. His prediction was well-grounded. There was ample basis for issuance of a warrant based on probable cause. Had Merlock not entered the vehicle, all the elements of probable cause would have still existed, except the discovery of the magazine. That last fact was not essential.
The totality of circumstances would have impelled Yamasaki to impound the vehicle and seek a search warrant. It is unfathomable, given the police's reasonable public safety concerns, that once an empty holster was observed in plain view, the officers would have allowed defendant's cohorts to retrieve the vehicle without the officers determining whether a firearm was hidden in the vehicle. Cf. State v. Diloreto, 180 N.J. 264, 281-82 (2004) (community caretaking function justified warrantless entry into vehicle, after police discovered loaded magazine in possession of driver, to address "real danger . . . that an automatic handgun could fall into malevolent, untrained or immature hands.") (internal citation and quotation omitted). The totality of the circumstances enhance our confidence that police would have secured the vehicle until they were able to determine if it was safe. Defendant denied knowledge of the holster; the holster was one used to conceal a weapon as one carried it; defendant provided conflicting information about the owner of the vehicle; defendant's driving privileges were suspended; defendant had warrants for his arrest; and defendant was in a rush to get where he was going.
It is also clear that had Merlock not entered the vehicle, discovery of the firearm would have inevitably resulted based on a search pursuant to defendant's consent, or a warrant. Such discovery would have resulted without exploiting the additional information and evidence seized from Merlock's unlawful entry into the vehicle. The police knew the shoulder holster was in plain view.
This is not a case where inevitable discovery is grounded on "nothing more than a hunch or speculation as to what otherwise might have occurred." State v. Worthy, 141 N.J. 368, 391 (1995) (quoting Wayne R. LaFave, Search and Seizure § 11.4(a) at 383 (1987)). Defendant was already in custody and his removal from the scene was certain. Moreover, it is hardly a hunch or speculation to conclude, under the circumstances, police would not have left at the side of the road, for retrieval by defendant's "cousin," a vehicle that may have contained a firearm that fit in the shoulder holster.
Nor is this a case where the State simply claims that it could have obtained a warrant. Cf. State v. Premone, 34 8 N.J. Super. 505, 509-10, 515 (App. Div. 2002) (affirming trial court's decision rejecting inevitable discovery argument where State solely claimed that it could have obtained a warrant and there was no "independent investigation" that would have led to inevitable discovery). Merlock's investigation about the holster was already underway when the unlawful entry occurred. He had observed the holster. Although he poked his head into the front of the vehicle, he had not entered the rear door when he asked defendant what he knew about the holster.
In sum, we are convinced that had the trooper not unlawfully entered the vehicle driven by defendant, police would inevitably have discovered the presence of the loaded handgun in the trunk.
Reversed and remanded.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION