Opinion
DOCKET NO. A-5152-12T3
08-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. OMAR B. QUELIS-RODRIGUEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Joseph Anthony Manzo, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 11-06-1062 and 12-06-0810. Joseph E. Krakora, Public Defender, attorney for appellant (Joseph Anthony Manzo, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, on the brief). PER CURIAM
Defendant Omar B. Quelis-Rodriguez appeals from his judgments of conviction following his guilty plea. He challenges the denial of his suppression motion, and the length of his sentence. We affirm.
I.
We draw the following facts from findings made by Judge James J. Guida in his March 20, 2012 written opinion denying suppression, as well as from the suppression testimony.
At about 10:30 p.m. on March 17, 2011, uniformed detectives Robert Duboue and Brian Rock of the Bergen County Police Department were on patrol on Route 4. They observed a vehicle swerve in and out of its lane. The detectives stopped the vehicle, which was driven by defendant.
Defendant's vehicle was variously described in the record as a Ford Explorer, a Suburban, and a pickup.
Detective Duboue approached the driver's side of the vehicle and asked defendant for his license, registration, and insurance card. Duboue, fluent in Spanish, immediately realized defendant was a Spanish speaker, and thereafter communicated with defendant in Spanish.
While defendant was leaning over to find those credentials, Duboue shined his flashlight through the vehicle's windows and stuck his head into the open driver's window. As a result, he saw several cylindrical objects lying on right rear floorboard. Concerned the objects might be pipe bombs, Duboue asked defendant to step out of the vehicle.
He stated: "If I was an inch inside the vehicle or two inches I don't recall exactly how far into the vehicle I got."
Detective Duboue asked defendant where he was going. Defendant said he was going to a party, but could not say where it was, only that he knew how to get there. Defendant became nervous and fidgety. When Duboue asked what the objects were, defendant said he had no idea.
Detective Duboue asked defendant if he had a problem with Duboue checking the vehicle. Defendant said he did not. Duboue had Detective Rock obtain a consent-to-search form, which was in English. Duboue then read and explained the form to defendant in Spanish. Defendant signed the consent form at 10:45 p.m.
Detective Duboue summoned to the scene Patrolman Fred Rivera and his trained K-9 dog. The K-9 dog entered the vehicle and made a positive indication for the presence of narcotics in the area of the right rear floorboard. From outside of the vehicle, Rivera could see the cylindrical objects there, partially under the front seat. Duboue entered the vehicle and seized six cylindrical objects, which contained 1.28 pounds of heroin.
Defendant was arrested, received two motor vehicle summons, and was ultimately charged with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), and first-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1), - 5(b)(1). While released on bail, he used a counterfeit credit card to obtain over $1000 of goods, and was separately charged with third-degree theft by deception, N.J.S.A. 2C:5-1, 2C:20-4.
Pursuant to a plea agreement, defendant: pled guilty to first-degree possession with intent to distribute, with the court's agreement that it would sentence him in the second-degree range to nine years in prison with three years of parole ineligibility; pled guilty to theft by deception on which he would receive a concurrent three-year term; and had the other charges dismissed. The court sentenced defendant accordingly.
We granted defendant's June 7, 2013 motion to file a belated notice of appeal from the July 17, 2012 judgments of sentence. Defendant raises the following arguments:
POINT I - THE DETECTIVE'S WARRANTLESS SEARCH OF THE VEHICLE WAS UNCONSTITUTIONAL, AND THE EVIDENCE OBTAINED FROM THAT SEARCH MUST BE SUPPRESSED.
POINT II - THE DEFENDANT DID NOT KNOWINGLY CONSENT TO THE SEARCH THEREBY MAKING THE WARRANTLESS SEARCH VIOLITVE OF HIS CONSTITUTIONAL RIGHTS.
POINT III - THE SENTENCE RECEIVED BY THE DEFENDANT WAS EXCESSIVE.
II.
We must hew to our "deferential standard of review" over suppression claims. State v. Rockford, 213 N.J. 424, 440 (2013). "[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." Ibid. (internal quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original; internal quotation marks omitted).
A.
At the suppression hearing, defendant argued only that it was physically impossible for Detective Duboue to stick his head through the open front window and see the cylindrical objects. Defense counsel asserted it was "just not credible" and "impossible for him to see what he claims he saw" merely by sticking "his head where the driver is." When pressed by the court to explain his argument, defense counsel asserted Duboue "probably did see these tubes in some other fashion that he's not acknowledging to the court such as opening the car doors and looking inside but there's no way from where he was positioned that he could see these objects." In his written opinion dated March 20, 2012, the judge found that the officers had reasonable suspicion to stop defendant's vehicle; Duboue saw the objects and properly ordered defendant out of the vehicle; and defendant validly consented to the search.
On appeal, defendant claims for the first time that Detective Duboue conducted an illegal search by sticking his head through the open driver's window. This is a novel argument not yet addressed by a published opinion in New Jersey. We must determine whether this court "should stay its hand and forego grappling with an untimely raised issue." State v. Robinson, 200 N.J. 1, 21 (2009); see, e.g., People v. Vasquez, 489 N.E.2d 757, 758 (N.Y. 1985) (ruling that the "failure to preserve" such a claim, "by specifically placing it for disposition before the suppression court, leaves no basis for our review"), cert. denied, 475 U.S. 1109, 106 S. Ct. 1517, 89 L. Ed. 2d 916 (1986).
In Robinson, the defendant claimed in the suppression hearing that the officers had not knocked when executing a warrant, but on appeal claimed that the officers had knocked but had executed the warrant improperly. Robinson, supra, 200 N.J. at 8-11. We addressed the defendant's new argument, apparently without objection by the State, and overturned the denial of suppression. Id. at 10-12. The Supreme Court reversed, holding that "[b]ecause that issue never was raised before the trial court, because its factual antecedents never were subjected to the rigors of an adversary hearing, and because its legal propriety never was ruled on by the trial court, the issue was not properly preserved for appellate review." Id. at 18-19.
Here, the issue was never raised and never ruled upon, but we cannot say that its factual antecedents were not elicited at the suppression hearing. The Supreme Court in Robinson found a "factual shortcoming" in the record because, "when the State sought to explore the whys and wherefores of" its actions, the defendant successfully objected. Id. at 20-21. Here, defendant did not object to the State's elicitation of evidence to support this warrantless search. Detective Dubose testified thoroughly as to what he did and why he did it, and the State does not claim the record is inadequate to resolve this issue. Because we have "a complete record," it is unclear whether Robinson bars review. Id. at 20.
We do not believe that the placement of the burden of proof on the State to justify a warrantless search is sufficient to distinguish Robinson, which was instead based on the concept that "the points of divergence developed in proceedings before a trial court define the metes and bounds of appellate review." Id. at 19; cf. State v. Bacome, 440 N.J. Super. 228, 235 n.4 (App. Div. 2015).
Rule 2:10-2 provides that an appellate court "may, in the interest of justice, notice plain error not brought to the attention of the trial [court]." In an abundance of caution and the interests of justice, we consider defendant's new claim under Rule 2:10-2. However, defendant must satisfy both prongs of the rule to prevail. "'Plain' is synonymous with 'clear' or, equivalently, 'obvious.'" United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508, 519 (1993). "Our law is the same." State v. Chew, 150 N.J. 30, 82 (1997) (citing Olano, supra, 507 U.S. at 734, 113 S. Ct. at 1777, 123 L. Ed. 2d at 519), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999). Thus, defendant "'has the burden of proving that the error was clear and obvious,'" and that it had "'the clear capacity to bring about an unjust result.'" State v. Koskovich, 168 N.J. 448, 529 (2001).
"An officer's mere observation of an item left in plain" sight "generally involves no Fourth Amendment search." Texas v. Brown, 460 U.S. 730, 738 n.4, 103 S. Ct. 1535, 1541, 75 L. Ed. 2d 502, 511 (1983) (plurality opinion). Thus, "'[a] simple observation into the interior of an automobile by a police officer located outside the automobile is not a "search" within the meaning of the Fourth Amendment.'" State v. Reininger, 430 N.J. Super. 517, 534 (App. Div.) (citing, e.g., Brown, supra, 460 U.S. at 739-40, 103 S. Ct. at 1541-42, 75 L. Ed. 2d at 513)), certif. denied, 216 N.J. 367 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1947, 188 L. Ed. 2d 962 (2014). "'There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers.'" Ibid. (quoting Brown, supra, 460 U.S. at 740, 103 S. Ct. at 1542, 75 L. Ed. 2d at 513); see also State v. Mann, 203 N.J. 328, 341 (2010).
It is important to distinguish observation of an item in plain sight from the "plain view" doctrine, which itself "justif[ies] seizure of an object." Ibid. "[T]he information obtained as a result of observation of an object in plain sight may be the basis for probable cause or reasonable suspicion of illegal activity," but it is not in itself an exception to the warrant requirement. Ibid.; accord Horton v. California, 4 96 U.S. 128, 133 n.5, 110 S. Ct. 2301, 2306, 110 L. Ed. 2d 112, 221 (1990).
Moreover, "'[t]he use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.'" State v. Johnson, 171 N.J. 192, 210 (2002) (quoting Brown, supra, 460 U.S. at 740, 103 S. Ct. at 1542, 75 L. Ed. 2d at 512); Reininger, supra, 430 N.J. Super. at 534. "Likewise, the fact that [an officer] changed his position and bent down at an angle so he could see what was inside" a car "is irrelevant to Fourth Amendment analysis." Brown, supra, 460 U.S. at 740, 103 S. Ct. at 1542, 75 L. Ed. 2d at 512.
On the other hand, in New York v. Class, 475 U.S. 106, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986), "an officer's momentary reaching into the interior of a vehicle did constitute a search." United States v. Jones, ___ U.S. ___, ___, 132 S. Ct. 945, 952, 181 L. Ed. 2d 911, 921-22 (2012). In Class, supra, the officer reached through the vehicle's open door into the interior to move some papers obscuring the VIN on the dashboard, and saw a gun under the seat. 475 U.S. at 108, 106 S. Ct. at 963, 89 L. Ed. 2d at 87. The Court held "that the intrusion into that space constituted a 'search.'" Id. at 114-15, 106 S. Ct. at 966, 89 L. Ed. 2d at 91. "While the interior of an automobile is not subject to the same expectations of privacy that exist with respect to one's home, a car's interior as a whole is nonetheless subject to Fourth Amendment protection from unreasonable intrusions by the police." Ibid.; accord State v. Lark, 319 N.J. Super. 618, 624 (App. Div. 1999) (opening a vehicle's door, although a "minimal" intrusion, was an invalid search "in the absence of one of the recognized exceptions to the constitutional requirement of probable cause and a warrant"), aff'd o.b., 163 N.J. 294 (2000); see also State v. Cohen, 73 N.J. 331, 344 (1977) (opening the door of a vehicle is an "intrusion" requiring "justification or probable cause").
Here, Detective Duboue did not merely observe the interior of the vehicle "from outside the vehicle." Brown, supra, 460 U.S. at 740, 103 S. Ct. at 1542, 75 L. Ed. 2d at 513. Nor did Duboue open the vehicle's door or "reach into the passenger compartment of [the] vehicle to move papers," touch, or seize anything. Class, supra, 475 U.S. at 107, 106 S. Ct. 962, 89 L. Ed. 2d at 86.
Thus, there is no precedent, in the United States Supreme Court, the New Jersey Supreme Court, or indeed in this court, on whether an officer conducts a search by sticking his head into an open car window. An error is "plain" only if "the error is clear under current law." Olano, supra, 507 U.S. at 734, 113 S. Ct. at 1777, 123 L. Ed. 2d at 519; accord Henderson v. United States, ___ U.S. ___, ___, 133 S. Ct. 1121, 1130, 185 L. Ed. 2d 97-98 (2013). Defendant cannot ask this court to make new law on a claim of error he did not even raise for adjudication by the trial court.
Because defendant does not satisfy this prerequisite for plain error review, we do not resolve whether it is a search for an officer to stick his head into the open window or open door of a vehicle. However, we caution that the courts which have ruled on that issue have uniformly held that this "constitute[s] a 'search' for Fourth Amendment purposes." United States v. Ryles, 988 F.2d 13, 15 (5th Cir. 1993); accord, e.g., State v. Epperson, 703 P.2d 761, 764, 768-69 (Kan. 1985); Commonwealth v. Podgurski, 436 N.E.2d 150, 152-53 (Mass. 1982), cert. denied, 459 U.S. 1222, 103 S. Ct. 1167, 75 L. Ed. 2d 464 (1983); People v. Aquino, 500 N.Y.S.2d 677, 678-79 (N.Y. App. Div. 1st 1986); State v. Hendricks, 948 P.2d 740, 743 (Or. Ct. App. 1997). Accord 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 2.5(c), at 853-55 (5th ed. 2012) (opining such an intrusion is a search).
These courts emphasize there is "a legitimate expectation of privacy in the interior of a motor vehicle, however diminished." Podgurski, supra, 436 N.E.2d at 153. When the officer "pierced the airspace inside the vehicle," he "intruded inside a space that, under most circumstances, is protected by a legitimate expectation of privacy." Ryles, supra, 988 F.2d at 15. In doing so, the officer "conduct[ed] a visual inspection of what would otherwise be hidden from plain view." Aquino, supra, 500 N.Y.S.2d at 679. The expectation of privacy is enhanced "in those areas which would be otherwise free from observation except by physical intrusion of some sort." Podgurski, supra, 436 N.E.2d at 153. "By inserting his head into the interior of the" vehicle, the officer "was allowed to observe and smell what he otherwise would not have been able to observe or smell from a lawful vantage point. That was a search." Hendricks, supra, 948 P.2d at 743.
The Fifth Circuit observed that, "like any other Fourth Amendment privacy interest, the expectation of privacy in the inside airspace of an automobile is not absolute. Rather, if [an officer's] intrusion was reasonable, his 'search' was not a Fourth Amendment violation." Ryles, supra, 988 F.2d at 15. Some courts have found it reasonable for an officer to stick his head into a vehicle to have effective communications with a passenger, e.g., id. at 15-16; United States v. Pierre, 958 F.2d 1304, 1309-10 (5th Cir.) (en banc), cert. denied, 506 U.S. 898, 113 S. Ct. 280, 121 L. Ed. 2d 207 (1992); Lewis v. State, 949 N.E.2d 1243, 1245 (Ind. 2011); People v. Vasquez, 483 N.Y.S.2d 244, 245-46 (N.Y. App. Div. 1st 1984), aff'd on other grounds, 489 N.E.2d 757 (N.Y. 1985); to place back into the vehicle an item the defendant gave the officer, Commonwealth v. Santana, 649 N.E.2d 717, 720-21 & n.5 (Mass. 1995), or "to follow defendant's hands" in a dangerous situation, State v. Aubin, 622 A.2d 444, 445 (R.I. 1993).
Here, Detective Duboue did not assert any such reason particular to this stop. Duboue testified that, at the point he stuck his head in defendant's car: he "didn't fear for his safety at all"; defendant was "fully cooperative," he had done "[n]othing suspicious," and "his demeanor was fine"; and Duboue had "no information" that defendant "had committed any crime" or that his vehicle "was involved in any crime," and had "[a]bsolutely" no basis to arrest him.
Instead, Detective Duboue testified that "the customary thing I do on any motor vehicle stop while I am waiting for the driver to retrieve their paperwork I do a cursory look of the inside of the vehicle." He explained:
The minute the driver of the vehicle leans over to grab their credentials that's the time I take to stick my head inside, look around, smell, make sure there's nothing in there that shouldn't be in there that's going to hurt me or make sure there's
nothing illegal going on in the vehicle. Every single vehicle.
The reasonableness of such a uniform practice is highly questionable. First, in looking for something "illegal in the vehicle" it serves the purpose of a search. See Kyllo v. United States, 533 U.S. 27, 33 n.1, 121 S. Ct. 2038, 2042 150 L. Ed. 2d 94, 101 (2001) (noting "[w]hen the Fourth Amendment was adopted, as now, to 'search' meant 'to look over or through for the purpose of finding something"). Second, it "simply articulates a general concern for safety and does not provide sufficiently specific and articulable facts to justify a reasonable suspicion that this defendant posed an immediate threat of injury to the officer or others present." State v. Hicks, 749 P.2d 1221, 1224 (Or. Ct. App. 1988). We noted that officers are allowed to physically search the passenger compartment of an automobile for weapons only "if the police officer possesses a reasonable belief . . . that the suspect is dangerous and the suspect may gain immediate control of weapons." Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201, 1220 (1983); see State v. Gamble, 218 N.J. 412, 427 (2014) ("this Court adopted the rule in Long to govern protective searches of automobiles based on reasonable suspicion").
Long "stress[ed] that [its] decision does not mean that the police may conduct automobile searches whenever they conduct an investigative stop." Long, supra, 463 U.S. at 1049 n.14, 103 S. Ct. at 3481 n.14, 77 L. Ed. 2d at 1220 n.14. Similarly, courts which have found it reasonable for officers to stick their heads into a vehicle's open window or door emphasize they do not "suggest that a police officer may in all circumstances constitutionally intrude into the interior of a vehicle simply because he has temporarily lawfully detained the vehicle because of a traffic violation." Ryles, supra, 988 F.2d at 16; see Pierre, supra, 958 F.2d at 1310.
The Border Patrol agent in Pierre had earlier testified it was his "standard practice" to stick his head in the open window of all automobiles to establish eye contact with the occupants to help determine their citizenship. United States v. Sheppard, 901 F.2d 1230, 1231 (5th Cir. 1990); id. at 1239 n.3 (King, J., dissenting). The Fifth Circuit panel in Pierre, noting the prevalence of this practice at that checkpoint, found it was an unreasonable search and was "part of a systematic and continuing series of Fourth Amendment violations." United States v. Pierre, 932 F.2d 377, 382-85, 389-90 (5th Cir. 1991). The Fifth Circuit granted rehearing en banc, United States v. Pierre, 943 F.2d 6 (5th Cir. 1991), and decided that "based on the particular facts of this stop [the agent's] conduct was reasonable." Pierre, supra, 958 F.2d at 1308. Nonetheless, the en banc court emphasized "that our holding is fact specific and based on the peculiar facts of this case. This opinion does not give carte blanche authority to checkpoint agents to intrude into vehicles during citizenship inquiries." Id. at 1310. --------
Nonetheless, even if we were to consider defendant's newly-raised argument and conclude that Detective Duboue sticking his head through the vehicle's open window was a search, suppression of the drugs would not be appropriate under the circumstances of this case. Detective Duboue did not seize any items when he stuck his head through the window, or conduct a search of the vehicle based on his observation. Instead, he first asked defendant for consent to search the vehicle. Only after defendant signed the consent-to-search form was a full search performed, and the cylindrical objects were seized during the subsequent consent search.
Several courts have refused to suppress in such circumstances. "Assuming without deciding that [defendant]'s Fourth Amendment rights were violated when [the officer] put his head through the truck's open window, we conclude that the subsequent search of the truck was validated by [defendant's] voluntary consent to search." United States v. McGill, 125 F.3d 642, 644 (8th Cir. 1997), cert. denied, 522 U.S. 1141, 118 S. Ct. 1108, 140 L. Ed. 2d 161 (1998); accord United States v. Grajeda, 497 F.3d 879, 882 (8th Cir. 2007); United States v. Sheppard, 901 F.2d 1230, 1233-34 (5th Cir. 1990).
In New Jersey and federal courts, "[t]he exclusionary rule will not apply when the connection between the unconstitutional police action and the secured evidence becomes so attenuated as to dissipate the taint from the unlawful conduct." State v. Shaw, 213 N.J. 398, 414 (2012) (internal quotation marks omitted). "In making that determination, the test is not whether the authorities would have failed to obtain the challenged evidence 'but for' their illegal conduct." State v. Johnson, 118 N.J. 639, 653 (1990). Rather, "[t]he test followed by both federal and New Jersey courts is based on three factors: (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. (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 427 (1975)). Applying those three factors, we have held that evidence seized after a defendant's voluntary consent to search should not be excluded if the consent was "'sufficiently an act of free will to purge the primary taint.'" State v. Chapman, 332 N.J. Super. 452, 468, 471 (App. Div. 2000) (quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct. 407, 416-17, 9 L. Ed. 2d 441, 454 (1963)), appeal dismissed, 167 N.J. 624 (2001).
First, we "consider 'particularly, the purpose and flagrancy of the official misconduct.'" Chapman, supra, 332 N.J. Super. at 470 (quoting Brown, supra, 422 U.S. at 604, 95 S. Ct. at 2262, 45 L. Ed. 2d at 427). Again, neither the United States Supreme Court nor the New Jersey courts has held that it is a search for an officer to stick his head in the open window of a vehicle. See State v. Casimono, 250 N.J. Super. 173, 187 (App. Div. 1991) (finding conduct was not flagrant because the New Jersey courts had not yet decided its illegality), certif. denied, 127 N.J. 558, cert. denied, 504 U.S. 924, 112 S. Ct. 1978, 118 L. Ed. 2d 577 (1992). Moreover, Detective Duboue emphasized that his primary purpose in doing so was "for safety reasons" "[s]o I can get home safe to my family." Thus, "even though the officer[] may have acted mistakenly, [he] did so in good faith," so his "actions could hardly be described as flagrant misconduct." State v. Williams, 192 N.J. 1, 16 (2007). Also, "the assumed violation was not flagrant" because it was a visual search only; Duboue did not touch anything, "'root about the interior' of the vehicle, or move anything to gain a better view." Grajeda, supra, 497 F.3d at 883 (quoting Class, supra, 475 U.S. at 118, 106 S. Ct. at 968, 89 L. Ed. 2d at 93). Finally, as Patrolman Rivera testified, the cylindrical objects were visible from outside of the vehicle.
Second, there was a short temporal break between the alleged illegal conduct and the consent. Detective Duboue told defendant to exit the vehicle, they went to the rear of the vehicle where defendant sat on the bumper, and Duboue asked defendant several questions about his trip, the cylindrical objects, and consent. Duboue had Detective Rock retrieve a consent-to-search form, Duboue explained it to defendant in Spanish, and defendant signed it approximately eleven minutes after the stop began. Thus, the "consent to search followed closely but not immediately after the alleged Fourth Amendment violation." Grajeda, supra, 497 F.3d at 882 (involving a twenty-minute gap). In any event, "[t]emporal proximity 'is the least determinative' of the three factors. Shaw, supra, 213 N.J. at 416 (finding this factor neutral where the gap was about five minutes).
Third, knowing and voluntary consent to search can "constitute[] independent intervening circumstances sufficient to dissipate the taint of the primary illegality." See State v. Pante, 325 N.J. Super. 336, 348 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). Here, defendant consented knowing Detective Duboue was aware of the cylindrical objects. "Even if consent is the result, in a 'but for' sense, of a Fourth Amendment violation, the consent will validate a subsequent search if the consent is 'sufficiently an act of free will to purge the primary taint.'" McGill, supra, 125 F.3d at 644. Therefore, we must determine if defendant's consent to search was knowing and voluntary.
III.
Defendant does not dispute the trial court's finding that the officers had "a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle." State v. Carty, 170 N.J. 632, 635, modified on other grounds, 174 N.J. 351 (2002). He also does not contest he signed the consent-to-search form.
Defendant contends his consent to search was not knowing because the detectives only had a consent-to-search form in English. Use of the appropriate consent-to-search form is desirable, but oral consent can also be valid. See, e.g., State v. Birkenmeier, 185 N.J. 552, 557 (2006). Detective Duboue, a fluent Spanish speaker, testified that he read and explained the form to defendant in Spanish. Specifically, Duboue testified he advised defendant that the form sought consent to search the vehicle, that he did not have to consent to a search or sign the form, that signing the form was voluntary and would give the detective the right to search the vehicle, and that he could observe the search and stop it at any time. Such "knowledge of his right to refuse to give consent" is a crucial component of voluntary consent. State v. Elders, 192 N.J. 224, 241 (2007); see also Grajeda, supra, 497 F.3d at 882.
Defendant argues there was no corroboration of Detective Duboue's testimony, particularly as Detective Rock could not understand Spanish. However, Detective Rock did corroborate that Duboue asked him to get the consent-to-search form from the police vehicle, that Duboue then had a calm dialogue with defendant in which they appeared to have "a rapport with each other," and that defendant then signed the form.
In any event, the trial court found that Detective Duboue was "a credible witness" and that he presented "an accurate version of the stop and subsequent encounter with defendant." "'Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.'" State v. Kuropchak, 221 N.J. 368, 382 (2015).
The trial court found that "defendant knowingly and voluntarily consented to a search of the vehicle," and knew "that he had the right not to consent to the search and to stop the search at any time." "The trial court had the 'feel' of the case, the opportunity to make observations of the witnesses denied to an appellate court." State v. Domicz, 188 N.J. 285, 309 (2006) (internal quotation marks omitted). Defendant has not shown the trial court's findings were "'so clearly mistaken that the interests of justice demand intervention and correction.'" Robinson, supra, 200 N.J. at 15. Defendant certainly has not shown that any error was "plain" or that it was "'of such a nature as to have been clearly capable of producing an unjust result.'" Robinson, supra, 200 N.J. at 21 (quoting R. 2:10-2).
IV.
Lastly, defendant challenges his sentence. Although defendant pled guilty to a first-degree crime and the State sought a sentence in the first-degree range, the trial court sentenced him in the second-degree range. In so doing, the court found mitigating circumstances seven, eleven, and twelve substantially outweighed aggravating factors three and nine.
Defendant contends the trial court improperly found a "risk that the defendant will commit another offense." N.J.S.A. 2C:44-1(a)(3). However, the court cited the "the gravity" of defendant's "very serious offense" of trafficking 1.28 pounds of heroin. The court also cited defendant's record in New York, where he was charged with assault and robbery, found guilty of harassment, and received a conditional discharge. The court also had before it the theft by deception offense defendant committed while on bail for the drug trafficking offense. Thus, despite defendant's lack of prior convictions and his otherwise law-abiding life, the court properly found a risk of re-offense.
Defendant argues his "conduct was the result of circumstances unlikely to recur." N.J.S.A. 2C:44-1(b)(8). However, defendant merely said the drug trafficking offense was "a mistake," and the court did not "know what prompted him" to commit the offense other than "financial reasons." Absent some specified, unusual circumstances, there was no basis to find this mitigating factor.
Finally, defendant argues "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9), has lost all value. However, "'[d]eterrence has been repeatedly identified in all facets of the criminal justice system as one of the most important factors in sentencing[.]'" State v. Fuentes, 217 N.J. 57, 78-80 (2014) ("declin[ing] to find that aggravating factor nine is inappropriate in a case in which the defendant had no prior record"). Courts must focus on "the need to deter the individual defendant," id. at 79, but "[d]eterrence of others remains a proper sentencing reason," State v. Martin, 235 N.J. Super. 47, 60 (App. Div.), certif. denied, 117 N.J. 669 (1989).
"[A]ppellate courts review the trial court's 'sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015). An appellate court is "'bound to affirm a sentence, even if [it] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" Ibid. We see no basis for reversing this lenient sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION