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Friday, July 06, 2012


                                                                                     SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-2843-10T1




April 17, 2012

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).

            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.
            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.
On appeal, defendant raises the following arguments for our consideration:






"[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.

[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.