Lamb Co Occupant consent to search valid State v Lamb

Court
cannot consider Sup Mt testimony unless agreed by defendant 

State v Gibson __ NJ __

A-11-13

Due to the
fundamental differences between a pre-trial motion to suppress and a trial on
the merits, the best practice is to conduct two separate proceedings. However,
the motion record may be incorporated into the trial record if both parties
consent and counsel are given wide latitude in cross-examination. Where the
evidence from a pre-trial hearing is improperly admitted at the trial on the
merits, the correct remedy is remand for a new trial.

State of New Jersey v. Bruno Gibson (A-11-13) (072257)

Argued March 31, 2014 -- Decided September 16, 2014

CUFF, P.J.A.D. (temporarily assigned), writing for a
unanimous Court.

In this appeal, the Court determines the correct
remedy when a municipal court convicts a defendant solely based on evidence
adduced in a pre-trial suppression hearing, without defendant’s consent but
without objection.

Defendant appeared before the municipal court for a
pre-trial hearing to suppress the fruits of the stop and subsequent arrest.
Following Mueller’s testimony at the suppression hearing and review of video
footage of the stop, the municipal court determined that reasonable suspicion
for the stop and probable cause for defendant’s arrest existed, and denied
defendant’s motion to suppress. After the suppression hearing, the State
inquired whether it was necessary for Mueller to testify again at trial since
the State would be relying strictly on Mueller’s physical observations. The
court asked defense counsel whether there was sufficient basis for the court to
find beyond a reasonable doubt that defendant was intoxicated. In response,
defense counsel commenced his summation, arguing that the State’s evidence
failed to satisfy its burden of proof. The court did not ask whether defense
counsel wanted to conduct further cross-examination of Mueller, and counsel did
not object. Relying on the observational evidence, the municipal court found
defendant guilty of DUI and failing to signal.

Following a trial de novo in the Law Division, the
court found that the State carried its burden of proof to establish that
defendant drove while intoxicated, describing the evidence as “overwhelming.”
The Law Division noted that Mueller’s testimony was credible, unrebutted and
corroborated by the videotape. With respect to defendant’s argument that the
municipal court violated his right to procedural due process by deciding the
merits of the case based on the suppression motion record, the Law Division
recognized that the municipal court did not follow normal procedures, but noted
that defense counsel neither objected, sought to admit additional evidence, nor
sought additional cross-examination. The Law Division concluded that defendant
failed to show he was prejudiced.

On appeal, the Appellate Division reversed, concluding
that the municipal court was not empowered to consider the pre-trial hearing
evidence in the trial on the merits, and to proceed to closing argument without
expressly asking defense counsel if he intended to call witnesses. The panel
emphasized that the suppression hearing and trial are governed by different
rules and determine discrete issues. Moreover, differing standards of proof
influence the scope of cross-examination and presentation of witnesses in each
proceeding, and suppression hearings may include evidence that is inadmissible
at trial. The panel also noted that a person charged with DUI has broad
procedural rights, including the right to confront the witnesses and evidence
against him. Determining that the State presented no evidence to permit either
the municipal court or the Law Division to find beyond a reasonable doubt that
defendant operated a motor vehicle under the influence of alcohol, the panel
directed the Law Division to enter a judgment of acquittal. This Court granted
the State’s petition for certification. 215 N.J. 488 (2013).

HELD: Due to the
fundamental differences between a pre-trial motion to suppress and a trial on
the merits, the best

practice is to conduct two separate proceedings.
However, the motion record may be incorporated into the trial record if both
parties consent and counsel are given wide latitude in cross-examination. Where
the evidence from a

pre-trial hearing is improperly admitted at the trial
on the merits, the correct remedy is remand for a new trial.

1. Municipal court proceedings are quasi-criminal
proceedings in which defendants are entitled to due process of law. A defendant
charged with a DUI enjoys a broad array of procedural rights, including a trial
in accordance with the Rules of Evidence and the right to confront
witnesses. State v. Allan, 283 N.J. Super. 622 (Law Div. 1995) is
the only reported opinion addressing the practice of incorporating the evidence
from a suppression motion into the trial record. There, the Law Division
cautioned against the continued use of this common practice, finding that the better
practice is to conduct two separate proceedings. However, the Law Division
noted that the motion testimony and exhibits could be incorporated in the trial
record if both counsel consented and defense counsel had been given wide
latitude during cross-examination.  

2. Error in a pre-trial proceeding or trial may
require reversal of a conviction and remand for a new trial, particularly in
the case of an error that impacts a fundamental right affecting the framework
of the trial. Here, incorporation of the motion record into the municipal court
trial record deprived defendant of his right to complete cross-examination of
the arresting officer, thereby implicating his fundamental right to confront
the witnesses against him. Although the error contravened a fundamental right,
it did not undermine the legitimacy of the trial itself, and the prejudice it
caused was readily assessed. Therefore, the remedy for such an error is
reversal of the conviction and a new trial.  

3. In certain circumstances, an error that interferes
with a defendant’s right to confront the witnesses against him may also produce
a factual record that provides insufficient evidence to support a finding of
guilt beyond a reasonable doubt, thereby implicating a defendant’s double
jeopardy guarantee and preventing the State from retrying the case. However,
the Double Jeopardy Clause permits a retrial when evidence, without which a
conviction cannot be supported, is erroneously admitted against a defendant.
Reversal for such trial error is appropriate because it implies nothing about a
defendant’s guilt or innocence, but rather that the judicial process by which
the defendant was convicted was defective in some fundamental respect. Under
those circumstances, a retrial merely recreates the situation that would have
been obtained had the trial error not occurred.  

4. With respect to incorporation of the record of the
motion to suppress into the trial record, the Court subscribes to the rule set
forth in Allan. In light of the separate nature of each proceeding, the
limited scope of a suppression motion, and the different standards of proof
governing each proceeding, the better practice is to conduct two separate
proceedings. On the other hand, if both counsel stipulate that testimony and
exhibits from the pre-trial motion may be incorporated into the trial record
and counsel are given wide latitude in cross-examination in connection with the
issues raised, the trial court may use the pre-trial record. Here, without the
improperly-admitted video evidence and testimony from the suppression hearing,
the State could not meet its burden of proof. Since this error was procedural
and did not affect the sufficiency of the evidence, the proper remedy is a
remand to the municipal court for a trial based on the observational evidence,
with defendant being afforded the full opportunity to cross-examine Mueller and
test the State’s proofs. Under these circumstances, a new trial does not
violate defendant’s double jeopardy right.  

The judgment of the Appellate Division is REVERSED and
the matter is REMANDED to the municipal court for proceedings consistent
with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and FERNANDEZ-VINA; and JUDGE RODRÍGUEZ (temporarily assigned) join
in JUDGE CUFF’s opinion.

Free Office Space for New Attorney and go to Court & Mentor program- Edison, NJ available October 1

Free Office Space for New Attorney and go to Court & Mentor program- Edison, NJ available October 1

           Kenneth Vercammen’s Law Office has a space sharing opportunity for new lawyer or recent unemployed attorney to get experience and go to court and learn NJ Law office procedures. This is a mentoring experience where you can learn NJ Law Office Procedure.

           Attorney will be provided with use of desk on main floor, plus if needed private office space in furnished basement to start their practice, rent-free. They can see clients in first floor office rooms. In return they will handle municipal court appearances, Telephone communications with courts, prosecutors, clients, etc, Will signings and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week. 

            Go to court and get court experience. Excellent opportunity to jump-start your career. You will get to represent people in Municipal Courts in Middlesex, Union and Monmouth County and meet the top Prosecutors and Judges. Must be admitted in NJ and have a car.

            Learn to interview potential Municipal Court/Criminal clients. Also learn to draft Wills and work on Litigation files. Attorney may also help provide legal assistance to members of prepaid legal plans and public defender clients. Follow up contact calls with clients, courts, prosecutors and bar associations.

  Excellent mentoring position for the right attorney. Are you hardworking and aggressive?  Visit our website: www.njlaws.com to learn about our office.

   The following is included with office use:

Desk space

Reception room for clients and use as Bona Fide Office

You can copy and use our Complaints, Motions, Form Letters and Pleadings.

 Use our marketing books, marketing CDs, Criminal, Municipal Court and Elder law audiotapes and video library now located in basement

 Use of our computer forms Motions, Complaints, and Form letters

Ability to use a file cabinet in basement to store your old files

Lighting/ Utilities

Bathroom Supplies

Landscaping / Snow Removal

Valuable advice

Hot water, municipal water/sewer charge paid

If interested, fax, email or mail a resume and cover letter.

KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW

2053 Woodbridge Ave. Edison, NJ 08817(Phone) 732-572-0500

(Fax) 732-572-0030   vercammenlaw@njlaws.com

Other Duties/ Services to Clients

-Call Courts to follow up on Letter of Representation and scheduling of hearings

-Call Police Departments to follow up on discovery

-Call clients and remind them of hearing dates and what to do

-Prepare Police Chief letters

- Update Criminal and Civil blogs with recent cases

- Help add our 900+ criminal articles and statutes to our new criminal articles blog [We will teach you how to add articles to Blogs]

- Whatever else needed to assist clients [ex Motions, ]

About Mentor Program Director: Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney.    Mr. Vercammen has published 125 articles in national and New Jersey publications on criminal, traffic, DWI, probate, estate planning, and litigation topics. He has been selected to write the book on Criminal Law for the American Bar Association. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. 

   Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association. He is the past chair of the NJ State Bar Association Municipal Court Section and is the Co-Chair of the ABA Criminal Law committee, GP Division.

          He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. As the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is also a recipient of the NJSBA- YLD Service to the Bar Award.

In his private practice, he has devoted a substantial portion of his professional time to the preparation for trial of litigated matters.  He has appeared in Courts throughout New Jersey several times each week on Criminal personal injury matters, Municipal Court trials, and contested Probate hearings.  He serves as the Editor of the popular legal websites www.njlaws.com and www.BeNotGuilty.com

He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 25 years. Kenneth Vercammen was included in the 2013 “Super Lawyers” list published by Thomson Reuters. He was a member of the Law Review and top 10% law school grad.

George C. Riley v. New Jersey State Parole Board (A-94-11;

George C. Riley v. New Jersey State Parole Board 

(A-94-11; 069327) 

The retroactive application of the 2007 Sex Offender Monitoring Act to George Riley twenty-three years after he committed the sexual offense at issue and after he fully completed his criminal sentence violates the Ex Post Facto Clauses of the United States and New Jersey Constitution. 

State v. Kirby Lenihan (A-45-12

9-18-14 State v. Kirby Lenihan (A-45-12; 071497) 

Under the circumstances presented in this case, a violation of the Seat Belt Law, clearly “intended to protect the public health and safety,” is a predicate offense that can support a conviction under N.J.S.A. 2C:40-18b. 

In the Matter of Peter J. Cammarano, III

 In the Matter of Peter J. Cammarano, III, An Attorney at Law (D-46-13; 073714) 

Respondent’s unethical conduct, consisting of offering favored treatment to a private developer in exchange for money, betrays a solemn public trust and undermines public confidence in honest government, thereby warranting his disbarment. 

State v. Bruno Gibson (A-11-13;

 State v. Bruno Gibson (A-11-13; 072257) 

Due to the fundamental differences between a pre-trial motion to suppress and a trial on the merits, the best practice is to conduct two separate proceedings. However, the motion record may be incorporated into the trial record if both parties consent and counsel are given wide latitude in cross-examination. Where the evidence from a pre-trial hearing is improperly admitted at the trial on the merits, the correct remedy is remand for a new trial 

Suppression ordered where search based on a hunch State v ROWSON,

Suppression ordered where search based on a hunch

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMIL W. ROWSON,

Defendant-Appellant.

____________________________

August 15, 2014 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01678-12T4

NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Submitted April 29, 2014 - Decided

Before Judges Hayden and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 11-08-00888.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, on the brief).

PER CURIAM

Defendant Jamil W. Rowson appeals from the Law Division's October 5, 2012 final judgment of conviction, which the court entered after defendant pled guilty to one count of second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(2). At the time defendant entered his guilty plea, he specifically reserved his right to appeal the court's denial of his motion to suppress evidence. In exchange for his plea, the State agreed to the dismissal of the other two counts of the indictment, which charged defendant with third-degree possession of cocaine, N.J.S.A. 2C:35-1(a)(1), and second-degree conspiracy to possess with intent to distribute a CDS (cocaine), N.J.S.A. 2C:5-2, 35-5(a)(1), -5(b)(2). The State further agreed to recommend that the court sentence defendant as a third-degree offender to a term of three years' imprisonment. The court later sentenced defendant in accordance with that recommendation.

Defendant pled guilty after the court denied defendant's motion to suppress "evidence seized on April 7, 2011, during the stop of a vehicle in which [d]efendant was a passenger[,]" for the reasons stated in the court's July 31, 2012 written "Statement of Reasons." Before entering the order and issuing its decision, the court conducted an evidentiary hearing at which the State presented the testimony of New Jersey State Trooper Steven Spitaleri. Defendant did not testify or produce any witnesses. On appeal, defendant challenges the court's decision and argues:

POINT I

THE EVIDENCE AGAINST MR. ROWSON MUST BE SUPPRESSED BOTH BECAUSE OFFICER SPITALERI LACKED SUFFICIENT SAFETY REASONS TO ASK MR. ROWSON OUT OF THE CAR, AND BECAUSE THE SUBSEQUENT ONE HOUR STOP WAS NEITHER REASONABLE NOR MINIMALLY INTRUSIVE.

A. Officer Spitaleri Was Not Justified In Asking Mr. Rowson To Exit The Vehicle.

B. Observations of Nervousness In Addition To Allegedly Conflicting Stories May Contribute To, But Are Not Sufficient To Find, A Reasonable And Articulable Suspicion Of Criminal Activity.

C. The Totality Of The Circumstances Did Not Justify Such A Lengthy and Intrusive Stop.

POINT II

THE EVIDENCE AGAINST MR. ROWSON MUST BE SUPPRESSED BECAUSE MR. WERTZ'S CONSENT WAS INVOLUNTARY.

POINT III

THE STATE HAS NOT DEMONSTRATED THAT THE FRUIT OF THE SEARCH WOULD HAVE BEEN DISCOVERED INEVITABLY ABSENT THE ILLEGAL SEARCH.

In opposition, the State argues that "the trial court correctly denied defendant's motion to suppress [as t]he police had reasonable suspicion to ask defendant-passenger to exit the car and conduct a search of the car after obtaining valid consent, and the overall time of the stop was reasonable under the circumstances." We have considered these arguments in light of the record and we now reverse, vacate defendant's conviction, and remand for a new trial.

The facts found by the court at the evidentiary hearing it held established that on April 7, 2011, at 7:19 p.m., Spitaleri pulled over the vehicle in which defendant was a passenger while riding on Interstate Highway 80. Seth Wertz was driving the vehicle and Spitaleri observed him failing to maintain his vehicle in the marked lanes.

Spitaleri has been a "[f]ield [o]perations, [r]oad [t]rooper" with the New Jersey State Police for the past five years. Before assuming his current position, Spitaleri received training at the New Jersey Police Academy in, among other subjects, "moving and non-moving" traffic violations under New Jersey statues, in "search and seizure," and in matters pertaining to CDS. He is also certified as a "Drug Recognition Expert," and was previously part of "the State Police Street Gang Unit, which is involved with undercover narcotics transactions from vehicles, the movement of narcotics and narcotic activity." During the prior three years, he had been patrolling Route 80 in the same area where he stopped the subject vehicle, and he had conducted seventy-five to 100 stops that resulted in the discovery of CDS.

Spitaleri approached Wertz and made several observations about his appearance, and became suspicious that Wertz and defendant were involved in some type of criminal activity, especially because Route 80 was known to the officer as a corridor for drug trafficking and other crimes. Wertz was "extremely nervous[,] noticeably sweating and visibly shaking[,]" and unable to maintain eye contact with the officer. Wertz gave Spitaleri his Pennsylvania license and the officer determined that it was suspended. After making these initial observations, the officer believed that Wertz was driving while under the influence of drugs or alcohol, so he administered field sobriety tests, which Wertz passed. While this transpired, defendant remained seated in the vehicle.

After administering the field sobriety tests, Spitaleri did not arrest Wertz but advised him of his Miranda¹ rights, and told him that he had "a reasonable articulable suspicion that there is something funny going on here." He interrogated Wertz outside defendant's presence about his and defendant's travels. According to the officer:

[Defendant] had contacted [Wertz] the day before [to] give him a ride to New York to drop off his girlfriend . . . [and that] when they left Pennsylvania [defendant] and his girlfriend [were in the car with him.]

. . . Wertz [stated that] he [has known defendant] over a couple of months . . . [b]etween a couple of months and a year. I then spoke to Mr. Wertz about who was in the vehicle with him, and [Wertz] said [defendant] and his girlfriend. I then asked Mr. Wertz if he knew [defendant's] last name and he just knew him as "Mel." He didn't know [defendant's] last name.

And then I asked [Wertz] if he was in contact with [defendant] the whole day and [Wertz] said up until . . . [defendant's] girlfriend was dropped off.

The officer then removed defendant from the car, advised him of his Miranda rights, and interrogated defendant about his trip with Wertz. As Spitaleri explained, like Wertz, defendant was not "exactly" under arrest but was being "detained," so that if defendant tried to leave the scene of the stop, Spitaleri would have apprehended him. Spitaleri explained why he wanted to speak to defendant:

I just wanted to speak with [defendant] to clarify just Mr. Wertz's story and that's when the conflicting statements came.

. . . .

The conflicting statements were that, the first one that he called . . . Mr. Wertz the morning of the stop because he missed the bus. And then Mr. Wertz stated that that he had – I mean [defendant] stated that he had his two kids – that he brought his wife and two kids from Pennsylvania and dropped them off in New York.

Spitaleri testified that defendant was polite. He did not describe him as being nervous as he did when testifying about Wertz. He pointed out that defendant did not have any identification with him on that day, nor did he know Wertz's last name. Spitaleri also determined that defendant had "felony convictions and he had served . . . prison terms . . . for narcotics . . . and weapons possession." Also, he described how defendant misspelled his own name. According to Spitaleri, the spelling "was off a letter," but the officer was able to eventually determine that defendant's license was suspended. After speaking to defendant, Spitaleri went back to Wertz to confirm the identities of everyone who was in the car with them that day. Wertz told the officer it was only defendant and his girlfriend.

The combination of Spitaleri's training; his familiarity with Route 80; the inconsistent statements; Wertz's nervous demeanor; defendant's inability to spell his name correctly; and both men being unlicensed, caused Spitaleri to become more suspicious. Spitaleri believed that he had a "reasonable articulable suspicion to ask for consent" to search the vehicle. If he did not have this suspicion, because both Wertz and defendant did not have valid licenses, the "vehicle would have been impounded, and both [of them] would have been relayed off . . . the exit to a safe location to be picked up or to make alternate plans for themselves."

The officer then followed his department's standard operating procedure to obtain approval from his superior before asking Wertz to consent to the search. Included in the information that Spitaleri relayed to his superior was the fact that a third party owned the car Wertz was driving. According to the officer, Wertz told him that the car belonged to Wertz's girlfriend and that he used her car instead of his own "because it was better on gas miles."² Ultimately, Spitaleri obtained approval to ask Wertz for his consent to search the vehicle.

Approximately one hour transpired from the time of the initial stop to the time when the officer obtained that approval. Spitaleri then read a State Police "Consent to Search Form" to Wertz before searching the vehicle. He did not have Wertz sign it before conducting the search but, rather, waited until later, when Wertz was arrested and at police headquarters "[b]ecause due to safety reasons, we're not going to give somebody a pen or somebody else anything on a stop when we are dealing with them . . . [b]ecause [i]t could be used as a weapon." After Spitaleri read and showed Wertz the form, "[h]e verbally agreed [to] the search of the vehicle." According to Spitaleri, Wertz initially responded by saying, "I ain't got nothing in there, I ain't worried about it." Spitaleri responded by asking Wertz, "So you grant it?" He did so because he "[couldn't] take that as an answer, so that's why [Spitaleri] asked him, is that you giving permission to consent, and that's when [Wertz] said 'yeah.'"

The search ultimately revealed cocaine stashed inside a cigarette box located "on the passenger-side visor[ a]nd, behind the front-passenger seat on the back floor^[3] was . . . a shoebox, [with] a plastic bag containing 320 decks of CDS heroin." The search also disclosed a vial containing marijuana which "was found outside the vehicle . . next to where [defendant] exited the vehicle." According to Spitaleri, defendant "took ownership to" the vial of marijuana. Once Spitaleri discovered the various substances, he arrested both Wertz and defendant. The officer stated that defendant initially resisted the arrest as he claimed that "he had nothing to do with it."

We begin with a recognition that our scope of review varies depending upon whether the issue raised on appeal concerns findings of fact or, alternatively, conclusions of law. As to the former, we must uphold the factual findings and credibility determinations of the trial judge if they are supported by "sufficient, credible evidence," State v. Yohnnson, 204 N.J. 43, 62 (2010), and "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case." State v. Johnson, 42 N.J. 146, 161 (1964). Still, if the trial court's findings are so clearly mistaken or unwarranted "that the interests of justice demand intervention and correction," then the Court may review the record "as if it were deciding the matter at inception and make its own findings and conclusions." Id. at 162. Finally, we "owe[] no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010) (citing State v. Ghandi, 201 N.J. 161, 176 (2010)).

In near-identical language, both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey State Constitution guarantee "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and provide that "no [w]arrants shall issue, but upon probable cause." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Accordingly, "[o]ur constitutional jurisprudence expresses a clear preference for government officials to obtain a warrant issued by a neutral and detached judicial officer before executing a search." State v. Edmonds, 211 N.J. 117, 129 (2012) (citing State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed.2d 128 (2004)). "[S]earches and seizures conducted without warrants issued upon probable cause are presumptively unreasonable and therefore invalid." State v. Elders, 192 N.J. 224, 246 (2007). For that reason, "the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure 'falls within one of the few well-delineated exceptions to the warrant requirement.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)).

Consent is a well-recognized exception to the Fourth Amendment's search warrant requirement.Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36

L. Ed.2d 854, 858 (1973). However, "consent searches under the New Jersey Constitution are afforded a higher level of scrutiny." State v. Carty, 170 N.J. 632, 639, modified on other grounds, 174 N.J. 351 (2002). Under Article I, paragraph 7 of the New Jersey Constitution any consent given by an individual to a police officer to conduct a warrantless search must be given knowingly and voluntarily. Ibid.. The burden is on the State to show that the individual giving consent knew that he or she "had a choice in the matter." Ibid. (quoting State v. Johnson, 68 N.J. 349, 354 (1975)). For that reason, the person giving consent must first be advised of his right to refuse. Johnson,supra, 68 N.J. at 353-54.

More pertinent here, when police request consent to search during a motor vehicle stop, they must have a reasonable and articulable suspicion that the search will produce evidence of criminal wrongdoing. Carty, supra, 170 N.J. at 635; State v. Thomas, 392 N.J. Super. 169, 188 (App. Div.), certif. denied, 192 N.J. 597 (2007). That standard has been defined as "a particularized and objective basis for suspecting the person stopped of criminal activity[,]" and is a far lower standard than probable cause. State v. Stovall, 170 N.J. 346, 356 (2002) (internal quotation marks and citation omitted).

If a police officer has a reasonable and articulable suspicion that a driver or passenger has engaged in, or is about to engage in, criminal activity, the officer may ask the driver to consent to a search of the vehicle. Carty,supra, 170 N.J. at 647. Under such circumstances, when a driver knowingly and voluntarily consents, the ensuing warrantless search does not violate Article 1, paragraph 7 of the New Jersey Constitution. Id. at 638-39.

As the Court explained in Carty, supra, once a car is stopped, and a police officer seeks consent to search the vehicle for reasons unrelated to the motor vehicle violation, the unique nature of a roadside detention requires a reasonable and articulable suspicion that a different crime has been or will be committed:

A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed. Once a lawful stop is made, the subsequent reasonable detention of the occupants of the motor vehicle constitutes a seizure. Such reasonable seizures, however, are permissible.

Although stopping a car and detaining its occupants constitute a seizure within the meaning of the Fourth Amendment, the governmental interest in investigating an officer's reasonable suspicion, based on specific and articulable facts, may outweigh the Fourth Amendment interest of the driver and passengers in remaining secure from the intrusion.

The fact that the motorist already has been detained at the point when an officer asks for consent to search is not dispositive of whether a suspicionless search should be allowed to continue. Because the motorist cannot leave the area before the search is completed, unless it is terminated earlier, the detention associated with roadside searches is unlike a mere field interrogation where an officer may question an individual without grounds for suspicion. Roadside consent searches are instead more akin to an investigatory stop that does involve a detention. Such a stop traditionally has required reasonable and articulable suspicion.

[Id. at 639-40 (internal quotation marks and citations omitted).]

Whether a reasonable and articulable suspicion exists depends upon the totality of the circumstances.Pineiro, supra, 181 N.J. at 22. No mathematical formula exists for deciding whether the totality of circumstances provided the officer with an articulable or particularized suspicion that the individual in question was involved in criminal activity. Such a determination can be made only through a sensitive appraisal of the circumstances in each case. In each case, the reasons for such particularized suspicion will be given careful scrutiny by the court. However, "[a] seizure cannot – we emphasize cannot – be justified merely by a police officer's subjective hunch." Id. at 27 (quoting State v. Davis, 104 N.J. 490, 505 (1986)).

Likewise, whether a defendant's consent to a warrantless search was knowingly and voluntarily given depends upon the totality of the circumstances. See State v. King, 44 N.J. 346, 352 (1965). Some factors suggesting that a defendant's consent was coerced are: the defendant consented after being arrested, denying guilt, or initially refusing to give consent; the search resulted in seizure of contraband the defendant knew would be discovered; and the defendant consented while handcuffed. Id. at 352-53. Factors showing that consent was voluntarily given include that a defendant "had reason to believe that the police would find no contraband[;] admitted his guilt before consent[; or] affirmatively assisted the police officers." Id. at 353.

However, "[i]n the context of motor vehicle stops, where the individual is at the side of the road and confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch of the imagination to assume that the individual feels compelled to consent." Carty, supra, 170 N.J. at 644. "Extended detentions and questioning regarding issues not related to the reason for the stop" constitute "[c]onsent that is the product of official intimidation or harassment" which invalidates any consent given by the detained and interrogated motorist. Id. at 645. For this reason, in Carty, supra, the Court held:

[C]onsent searches following a lawful stop of a motor vehicle should not be deemed valid . . . unless there is reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in, criminal activity. In other words, we are . . . holding that unless there is a reasonable and articulable basis beyond the initial valid motor vehicle stop to continue the detention after completion of the valid traffic stop, any further detention to effectuate a consent search is unconstitutional. A suspicionless consent search shall be deemed unconstitutional whether it preceded or followed completion of the lawful traffic stop. The requirement of reasonable and articulable suspicion is derived from our State Constitution and serves to validate the continued detention associated with the search. It also serves the prophylactic purpose of preventing the police from turning a routine traffic stop into a fishing expedition for criminal activity unrelated to the stop.

[Id. at 647 (emphasis added).]

In Carty, the Court applied that standard to an officer's reliance on a defendant's appearing nervous and held that it did not provide sufficient grounds for "the reasonable and articulable suspicion necessary to extend the scope of a detention beyond the reason for the original stop." Id. at 648. However, nervousness may be considered as a factor among others when determining whether a reasonable articulable suspicion exists that other crimes have occurred or are about to occur. Stovall, supra, 170 N.J. at 367-68.

"'[A] police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). "If, during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances 'give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.'" State v. Dickey, 152 N.J. 468, 479-80 (1998) (alteration in original) (quoting United States v. Johnson, 58 F.3d 356, 357-58 (8th Cir.), cert. denied, 516 U.S. 936, 116 S. Ct. 348, 133 L. Ed.2d 245 (1995)). However, "a police officer may not ask for consent to search a lawfully stopped vehicle or its occupants unless the officer has 'a reasonable and articulable suspicion' that the occupants are engaged in criminal wrongdoing." Elders, supra, 192 N.J. at 230 (citing Carty, supra, 170 N.J. at 635). "Reasonable suspicion" means that "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." State v. Barrow, 408 N.J. Super. 509, 517 (App. Div.) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.2d 889, 906 (1968)) (internal quotation marks omitted), certif. denied, 200 N.J. 547 (2009). "Reasonable suspicion" is "less than proof . . . by a preponderance of evidence," and "less demanding than that for probable cause," but must be something greater "than an inchoate or unparticularized suspicion or hunch." Ibid. (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed.2d 1, 10 (1989)) (internal quotation marks omitted).

"A finding of reasonable and articulable suspicion of ongoing criminality" is determined by objective "cumulative factors in a totality of the circumstances analysis." Elders, supra, 192 N.J. at 250. So, while an anonymous tip may be insufficient by itself to justify a request for consent, State v. Matthews, 398 N.J. Super. 551, 559-60 (App. Div.), certif. denied, 196 N.J. 344 (2008), cert. denied, 555 U.S. 1159, 129 S. Ct. 1037, 173 L. Ed.2d 480(2009), that information must be considered together with all other facts of record, taking into account the standard indicia of reliability as well as the extent of independent police corroboration and degree of predictive accuracy, in determining whether reasonable suspicion exists. Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 2417, 110 L. Ed.2d 301, 310 (1990); Florida v. J.L., 529 U.S. 266, 270, 120 S. Ct. 1375, 1378, 146 L. Ed.2d 254, 260 (2000); State v. Amelio, 197 N.J. 207, 212 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed.2d 1297(2009); State v. Rodriguez, 172 N.J. 117, 127-28 (2002).

Although a judge should "ascribe sufficient weight to the officer's knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise," State v. Arthur, 149 N.J. 1, 10 (1997), a reasonable and articulable suspicion is not subject to a singular rule and must not "'be justified merely by a police officer's subjective hunch.'" Elders, supra, 192 N.J. at 247 (quoting Pineiro, supra, 181 N.J. at 27).

Turning to the issues raised on appeal, the primary question is whether there was a sufficient factual basis for a reasonable and articulable suspicion of criminal activity to justify Spitaleri's search of the vehicle in which defendant was a passenger. In holding that there was a sufficient basis, the trial court relied on our opinion inThomas, supra, in denying defendant's motion. The facts in that case, however, were different than the instant matter. We summarized the facts in Thomas as follows:

The charges against defendant arose out of an incident that occurred on . . . a four-lane, divided highway with a grass median. Detective Louis Fundora was driving east on Route 36 in an unmarked car. Fundora observed a Mazda stopped in the westbound passing lane. He saw one man standing at the car and two men walking toward the Mazda in the eastbound lanes. By the time Fundora turned around and approached the Mazda in the westbound lane, all three men were in the car and driving away. Fundora stopped the Mazda on the westbound shoulder.

None of the men in the car had any identification. The driver identified himself as Najee Standard, gave an address and date of birth, all of which proved false. The front seat passenger identified himself as Vernon Valentine and produced a car rental agreement in that name. He also produced four traffic summonses, two in the name of Vernon Valentine and two in the name of Tyrone Whitley, but claimed he didn't know Whitley. Valentine was later identified as Whitley.

Defendant, a back seat passenger, gave his correct name but had no identification and persisted in talking on a cell phone during the stop. After learning that the driver had given incorrect identification, that Valentine was in possession of summonses issued to Tyrone Whitley and that defendant had no identification, Fundora asked Valentine to sign a consent to search because the car was rented in his name. Valentine agreed and a substantial amount of cocaine was recovered.

[392 N.J. Super. at 175-76 (emphasis added).]

Based on those facts we affirmed the trial court's decision to deny Thomas' motion to suppress because

the evidence demonstrated that Fundora had more than mere nervousness to support a reasonable and articulable suspicion that the occupants were already--or about to be--engaged in criminal activity.

The trial court found that

Det. Fundora had ample, reasonable and articulable suspicion for requesting a consent to search . . . [a]nd I've indicated I found him to be credible. But in short, the failure of the individuals to produce identification, the story by Mr. Standard that he was not the original driver, two males walking to a car that was stopped in a fast lane, the production of two sets of summonses, that is for two different individuals from a glove box of a rented car, the fact that Mr. Vernon Valentine who appeared, who looked like a Mr. Whitley did not know who Mr. Whitley was, and did not know how those summonses had gotten into the car.

The fact that the automobile in question was a rented vehicle, the fact that the suspects were all nervous[,] [t]he fact that there appeared to be an argument in the car, the fact that one suspect was sweated and agitated[,] [and] [t]he fact that another suspect appeared to be on a cell phone making a call . . . provided the detective with a reasonable and articulable suspicion.

[Id. at 188-89 (emphasis added).]

Here, unlike Thomas, Spitaleri did not have a sufficient basis to support a reasonable and articulable suspicion to justify his request for a consent to search the vehicle. While Spilateri may had a hunch "something funny was going on," the combination of Wertz's nervousness, his and defendant's inconsistent story, and the fact that they were unlicensed, did not provide a particularly objective basis for suspecting Wertz and defendant were engaged in criminal activity.

Even if it did, it cannot be said that the consent Spitaleri obtained from Wertz was the product of his own free will. Rather, after considering the extraordinary length of time that transpired from the moment of the stop to the point of obtaining Wertz's equivocal verbal consent, it was at least likely that Wertz's consent was the result of Spilateri's extended detention of the two men and his questioning regarding issues not relative to his stopping Wertz for driving erratically. Once the officer's valid suspicion that Wertz was intoxicated had been laid to rest by the sobriety tests, and he determined both drivers were unlicensed, the officer had no reason to continue to interrogate and detain Wertz or defendant. He simply could have made arrangements for the vehicle's storage, State v. Slockbower, 79 N.J. 1, 9 (1979), or he could have secured the vehicle and attempted to obtain a warrant. Under the circumstances presented here, the officer's search was unjustified.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

1  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).

2  The police were able to contact the girlfriend who confirmed that Wertz was driving her vehicle with her consent.

3  He later clarified that it was underneath the front-passenger seat.