SUPERIOR COURT OF NEW JERSEY
APPELLATE
DIVISION
STATE
v.
DIANDRE E. LITTLEPAGE a/k/a DRE,
HERHAN RODRIGUEZ,
_______________________________________
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Submitted March 28, 2012 - Decided
Before Judges Fuentes, Graves and Haas.
On appeal from the Superior Court of New Jersey,
Law Division, Mercer County, Indictment No. 09-07-0680.
Joseph E. Krakora, Public Defender, attorney for
appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel
and on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor,
attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
After
his motion to suppress was denied, defendant Diandre Littlepage pled guilty to
third-degree possession of cocaine, N.J.S.A. 2C:35-7. He was sentenced to an extended term of
seven years in prison, with a three-year period of parole ineligibility. Defendant appeals the denial of his
motion to suppress. After
reviewing the record in light of the contentions advanced on appeal, we reverse
and remand for further proceedings.
I.
On
March 25, 2009, Trenton Police Detective Michael Schiaretti received
information from a confidential informant that a man was selling drugs from an
apartment located in a house on Hamilton Avenue. The informant told Schiaretti that the suspect also sold
drugs on the street and that he often had a pit bull with him.
That
evening, Schiaretti and Detective Sergeant Darren Zappley set up surveillance
across the street from the apartment house. At 9:30 p.m., they observed a woman walk down an alleyway
next to the house and then quickly re-emerge and leave the area. About ten minutes later, a man later identified
as defendant came out of the alleyway and began walking down Hamilton
Avenue. Defendant had a pit bull
on a leash.
Defendant
walked to the corner, where he stopped and waited. A man, who was never identified, approached him. After a brief conversation, the man
gave defendant some cash. Defendant reached into his mouth, removed an object,
and gave it to the man, who then left the area. Defendant resumed walking down the street. Schiaretti called a back-up unit and
instructed the officers to stop and detain defendant.
Schiaretti
and Zappley crossed the street to the apartment house. They went to a side door and thought
they heard voices coming from the apartment. The officers looked through a window and, on a kitchen
counter, they saw a digital scale, a piece of clear plastic that contained
"suspect crack cocaine," and a coffee pot. Schiaretti knocked on the door, but received no
response. He then directed the
back-up unit to arrest defendant and bring him to the apartment house. Defendant was searched and no
contraband was found. He was
handcuffed, placed in the rear of a police car, and driven to the apartment
house.
When
defendant arrived, he remained in the back of the police car in handcuffs. Schiaretti orally advised defendant of
his Miranda[1] rights. Schiaretti told defendant that the
officers had seen him in "an illegal narcotics transaction" and,
because they had also seen crack cocaine through his kitchen window, they would
be "pursuing a search warrant for the residence." Schiaretti also asked whether there was
any one in the residence.
Defendant told Schiaretti that no one was in the apartment and that he
had left the television on.
According to Schiaretti, defendant
went on to state that it wouldn't be necessary to
get a search warrant, that he only had the crack that we could see in the
window, and he said that there was a blunt in his house, and that he would give
consent to, you know, search his apartment in order for us to retrieve those
items without getting a search warrant.
Schiaretti
asserted that he then "quickly told" defendant that he had the right
to refuse to consent to the search, the right to stop the search at any time,
and the right to be present "on the scene while it happened." Schiaretti did not provide defendant
with the standard written consent to search form and he conceded that his
written reports did not record that he had verbally advised defendant of any of
these rights.
Schiaretti
left defendant in the police car, walked to the house, tried the side door, and
found that it was locked. He
returned to the car and asked defendant how he could get into the
residence. Schiaretti testified
that defendant told him that he had keys to the front door in his pocket. Although defendant was still handcuffed
behind his back, Schiaretti asserted that defendant was "able to reach to
his left pocket and remove the keys and hand them over." Zappley gave a different account. He testified that defendant offered the
officers the keys before Schiaretti had tried to gain entrance through the side
door and that they, rather than defendant, removed the keys from his pocket.
Once
the officers entered the apartment kitchen, they seized the digital scale, the
suspected crack cocaine and the coffee pot, which contained cocaine
residue. They also seized the
marijuana blunt that defendant said was in the living room. Expanding the search, they found crack
cocaine and "a couple of bags" of marijuana in the living room, some
of defendant's "personal papers" in the bedroom, and more crack
cocaine in the bathroom.
Defendant
was transported to police headquarters.
Upon arrival, Zappley asked defendant if he would sign a written consent
form "to further the consent, that verbal consent that he had given
us." Zappley explained that
having a signed consent form "would obviously strengthen our investigation
if [defendant] signed it."
Defendant refused to do so.
Defendant
testified that the apartment belonged to his girlfriend. He claimed that the officers, who had
arrested him on the street, took his keys. Defendant denied ever speaking to Schiaretti and Zappley at
the scene or giving his consent to any other officer to search the
apartment. Back at the police
station, defendant testified that Zappley asked him to sign a consent to search
form and that he refused.
The
motion judge denied defendant's motion to suppress. With regard to the credibility of the officers, the judge
stated:
Both officers, I thought, testified
persuasively. Assessing their
demeanor, they seemed to be candid.
There didn't seem to be any evidence of dissembling or deception . . . so
I found their testimony generally to be credible. I think in some cases they might, their memories might - -
they might be looking in the past with rose-colored glasses. People like to remember that they did
things appropriately, but I don't think they had any intention to deceive.
On the other
hand, the judge found defendant "to be incredible and deceptive from the
point of view of his testimony" and that defendant was "uncertain as
to details and seemed to vary in his testimony, even in the course of the short
time he was on the stand."
The
judge found that the officers had probable cause to instruct the backup
officers to stop and arrest defendant once they observed the apparent drug
sale. With regard to their search
of the apartment, the judge found that the officers did not advise defendant
that he had the right to refuse to consent to the search. The judge stated:
I think under the circumstances, I think I'm not
convinced by clear and positive evidence that the officers advised him you have
the right to refuse, because it's - - and I know the officers said they did,
but, and I don't think they were intentionally deceiving. People like to remember that they
follow procedure, and it's now some time ago and they could convince themselves
that they did that, and I could look more closely at the testimony, but, the
reports that were prepared immediately after don't say anything about the right
to refuse. I think that was a
point well made by the defense.
However,
the judge ruled that the officers' failure to advise defendant that he had the
right to refuse to consent was not fatal because he found that defendant
volunteered to permit the search before he was asked for his consent. The judge explained,
as a practical matter, if someone says you can
search my apartment to find the drugs in the kitchen and the blunt, why would
[the police] then . . . say, by the way, you have a right to refuse, you can
take that back, anymore than in the Miranda situation the person blurts
out a confession, more important information, before the Miranda warning
is given, but before a question is asked, that's usable.
Therefore,
the judge held that the officers properly entered the apartment and seized the
items they had observed through the kitchen window and the marijuana blunt defendant
told them was in the living room.
The judge found that defendant's consent was limited to these specific
items. In spite of the fact that
the officers searched other areas of the apartment for contraband, the judge
ruled that the items seized during this expanded search would not be suppressed
because, under the inevitable discovery doctrine, the officers would have
ultimately been able to obtain a valid search warrant to find and seize these
items.
II.
On
appeal, defendant raises the following arguments for our consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S
MOTION TO SUPPRESS EVIDENCE OBTAINED IN THE WARRANTLESS SEARCH OF THE
DEFENDANT'S APARTMENT BECAUSE THE DEFENDANT'S CONSENT WAS NOT VOLUNTARY, AND AS
A RESULT THE SEARCH WAS CONDUCTED IN VIOLATION OF THE FEDERAL AND NEW JERSEY
CONSTITUTIONS.
POINT II
THE SEACH OF 234 HAMILTON AVENUE IMPERMISSIBLY
EXTENDED BEYOND THE SCOPE OF ANY CONSENT.
POINT III
THE TRIAL COURT ERRED IN INVOKING THE DOCTRINE OF
INEVITABLE DISCOVERY AS GROUNDS FOR THE DENIAL OF THE DEFENDANT'S MOTION TO
SUPRESS.
"[A]n
appellate court reviewing a motion to suppress must uphold the factual findings
underlying the trial court's decision so long as those findings are supported
by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007)
(citation omitted) (internal quotation marks omitted). A reviewing court generally defers to a
trial court's findings, "which are substantially influenced by [its]
opportunity to hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy . . . ." State v. Davila, 203 N.J. 97, 109-10
(2010). However, we need not defer
to any legal conclusions reached from the established facts. State v. Brown, 118 N.J.
595, 604 (1990).
Defendant's
primary argument is that his consent to the search was not voluntary because
the officers failed to advise him that he had the right to refuse to
consent. We agree. "A search conducted pursuant to
consent is a well-established exception to the constitutional requirement that
police first secure a warrant based on probable cause before executing a search
of a home." State v.
Domicz, 188 N.J. 285, 305 (2006) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L.
Ed. 2d 854, 858 (1973)). Under
our State Constitution, however, there are "heightened requirements to
ensure that the waiver of the right to refuse a consent search [has been]
voluntarily and knowingly exercised." Id. at 307.
The State has the burden of showing that the consent was voluntary,
which includes "'knowledge of the right to refuse consent.'" Ibid. (quoting State v.
Johnson, 68 N.J. 349, 354 (1975)). A defendant who has consented to a search also has the right
to be present during the search and to limit or withdraw his consent once the
search begins. State v. Hampton,
333 N.J. Super. 19, 30 (App. Div. 2000).
We
are troubled by the motion judge's credibility findings on the consent
issue. The judge found that,
looking back at what happened through "rose-colored glasses,"
Schiaretti and Zappley testified "that they did things
appropriately." Nevertheless,
the judge rejected their claim that they told defendant that he could refuse to
consent to the search. Having concluded
that the officers did not testify accurately on this important issue, it is
difficult to perceive how the judge could conclude that they were
"candid" in the rest of their testimony.
However,
giving due regard to the judge's ability to observe the demeanor of the
witnesses as they testified, we defer to his credibility findings, including
his finding that the officers did not advise defendant that he had the right to
refuse to consent to the search. See
State v. Davila, supra, 203 N.J. at 109-10. Because the officers did not advise
defendant that he had the right to refuse to consent to the search, the search
was improper, unless some other exception to the warrant requirement
applies. See State v.
Johnson, supra, 68 N.J. at 353-54.
The
motion judge held that the search was valid because defendant volunteered his
consent before the officers were able to ask for it or to advise him of his
right to refuse. In so ruling, the
judge relied upon our decisions in State v. McGivern, 167 N.J. Super.
86 (App. Div. 1979), and State v. Humanik, 199 N.J. Super. 283
(App. Div.), certif. denied, 101 N.J. 266 (1985), rev'd on
other grounds sub. nom. Humanik v. Beyer, 871 F.2d 432 (3rd
Cir.), cert. denied, 493 U.S. 812, 110 S. Ct. 57, 107 L.
Ed. 2d 25 (1989). These decisions,
however, are readily distinguishable from the present matter because each
involved a situation where the defendant actually turned over an item to the
police before they asked if a search could be conducted.
In
State v. McGivern, supra, a State Trooper stopped a car on the
turnpike. 167 N.J. Super.
at 87. The trooper asked the
defendant whether he was carrying any luggage. Id. at 88.
Instead of replying, the defendant got out of his car and opened the
trunk, which enabled the trooper to see a box that smelled of marijuana. Ibid. Defendant was arrested and marijuana was found in the
box. Ibid. Under those unique circumstances, we
held that:
The issue of a knowing
consent, or for that matter any consent, is not involved in the case at bar. If a person chooses to disclose
contraband or evidence thereof as to which he ordinarily would be protected by
virtue of his constitutional rights, without that course being initiated by the
police, he does so at his peril.
Here defendant failed to respond to the trooper's question as to whether
he had luggage in the vehicle.
Instead, he, for some reason known only to himself, chose to open the
trunk. Once that occurred, the
trooper was free to act on the basis of what his senses revealed.
To hold otherwise would
give license to persons to rush to display evidence of crime and thereafter
prevent the use thereof for the purposes of prosecution. Before there can be a question of
consent, there must be an express or implied request to see or enter.
[Id.
at 89-90 (citation omitted).]
Likewise,
in State v. Humanik, supra, the defendant was a fugitive on a
murder charge. 199 N.J. Super.
at 303-04. He sent a letter to his
aunt who, in turn, gave it to his sister for safekeeping. Ibid.. Later, police went to the defendant's home to interview his
family. The defendant's sister
asked them to go with her to her house.
Id. at 304. When
they arrived, she gave them the defendant's letter. Ibid.
Under these circumstances,[2]
we held that
the issue of consent is not involved. [The defendant's sister's] action in
providing the police with defendant's letter was not directly instigated by the
officers. [The sister] never
responded to the police officers' questions pertaining to defendant's
whereabouts. Rather, she chose to
turn over the letter. In short,
the officers' inquiries were not tantamount to a request for consent to search.
[Id. at 304-05.]
Neither
of these two highly unusual factual situations is remotely similar to the case
at hand. Here, defendant did not
simply turn over contraband without first being prodded by the police. Instead, defendant was under arrest and
handcuffed in the back of a police car when Schiaretti told him that the
officers were going to get a search warrant to seize the items they had seen
through his kitchen window. Unlike
the situation in either McGivern or Humanik, where the officers
never suggested that they would be seeking a search warrant, Schiaretti's
statement was clearly designed to elicit a response from defendant as to his
views on the proposed search.
Thus, Schiaretti's action was "tantamount to a request for a
consent to search." State
v. Humanik, supra, 199 N.J. Super. at 305. Indeed, Schiaretti
had to ask defendant how he could get into the apartment, once he found that
the door was locked. This was
"an express or implied request to see or enter" the apartment. State v. McGivern, supra,
167 N.J. Super. at 90.
Therefore, as in State v. Johnson, the officers were obligated to
fully apprise defendant of his right to refuse to consent before any search was
undertaken.
The
officers also did not scrupulously honor defendant's right to be present during
the search and to withdraw his consent once the search began, as was required
in State v. Hampton. Because
he was handcuffed in the back of a police car while the apartment was searched,
defendant had no opportunity to withdraw his consent or to stop the officers
from expanding their search to other areas of the apartment.
Because
defendant was not advised of his right to refuse to consent, the search cannot
be sustained and we conclude that the motion to suppress was incorrectly
denied. We thus vacate defendant's
conviction and remand for further proceedings.
Reversed
and remanded.
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[1]
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966).
[2]
Significantly, the State did not challenge defendant's standing to challenge
the "search" and, therefore, we did not determine "whether
defendant had a sufficient proprietary, possessory or participatory interest in
the letter seized" to enable him to do so. Id. at 304, n. 10.
