STATE OF NEW JERSEY v. KESHAWN R. TUCKER (17-05-1315, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 21, 2022
• Docket: A-0768-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0768-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KESHAWN R. TUCKER, a/k/a KESAHWN TUCKER,

Defendant-Appellant. ________________________

Argued January 5, 2022 – Decided January 21, 2022

Before Judges Sabatino and Mayer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 17-05-1315.

Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ashley T. Brooks, Assistant Deputy Public Defender, of counsel and on the briefs).

Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Lucille M. Rosano, of counsel and on the briefs). PER CURIAM

Defendant Keshawn R. Tucker appeals from a May 9, 2019 order denying

his motion to suppress drug evidence. He also appeals from the sentence

imposed after being convicted by a jury of drug related offenses. We affirm.

The following facts are derived from an evidentiary hearing on defendant's

motion to suppress. In the early morning hours on March 11, 2017, Officers

Roy Vasquez and Miguel Costa of the Newark Police Department were on

routine patrol. The officers passed defendant driving in the opposite direction

and noted he was not wearing a seatbelt. The officers followed defendant but

did not activate the patrol car's lights or siren. Officer Vasquez observed

defendant pull into a parking space and stopped his patrol car near defendant's

car. When the officers approached the car, defendant drove away, crossed two

lanes of traffic without signaling, and cutoff another vehicle. A short time later,

defendant parked his car in a private driveway. Defendant did not reside at the

residence where he parked. Because defendant's car blocked the driveway and

sidewalk, the officers conducted a motor vehicle stop. 1

1 On appeal, defendant did not challenge the validity of the motor vehicle stop.

2 A-0768-19 Officer Vasquez saw defendant "moving inside the vehicle," shifting his

hands "a little bit," and waving his arms "back and forth." Vasquez asked

defendant to stop moving. Because defendant could not hear what the officer

said, defendant exited his car and walked toward the officers. Vasquez ordered

defendant to return to the car and he did so.

Officer Vasquez requested defendant's license, registration, and proof of

insurance. Defendant supplied a Florida driver's license, proof of insurance, but

could not provide a valid vehicle registration. After checking defendant's

license, Officer Vasquez discovered defendant's New Jersey driver's license

expired and his driving privileges in this State were suspended. Additionally,

defendant had an open arrest warrant in Newark for failing to appear in court.

As a result, Officer Vasquez placed defendant under arrest.

Because defendant's car was illegally parked, the officers advised the car

would be towed unless defendant could arrange for someone to retrieve it.

Defendant explained he could not arrange for someone to pick up his car.

Knowing the car would towed, defendant asked the officers to retrieve the

following personal items from his car: a red sweater from the backseat, cell

phones and medication on the front passenger seat, and a black watch in the

center console. According to Officer Vasquez, defendant was "adamant that he

3 A-0768-19 really wanted [those items]." Officer Vasquez agreed to retrieve the specified

items per defendant's request. The officer testified he had no reason to enter the

car and would not have done so absent defendant asking for the personal items

in his car.

Officer Vasquez entered the defendant's car through the open driver's side

door. When he reached into the backseat to retrieve the sweater, the officer

looked down between the driver's seat and center console and saw two white-

topped glass vials. Suspecting the vials contained cocaine, Vasquez confiscated

the items.

Officer Vasquez continued to retrieve the other items defendant requested.

When the officer opened the center console to retrieve defendant's watch, he saw

a zipper sealed bag sticking out of a second compartment beneath the first

compartment of the car's console. The officer tugged the bag, which caused the

second compartment to open. Vasquez then saw two zipper sealed bags. One

bag contained 155 glassine envelopes, later determined to be heroin, and the

other bag contained ninety-four clear vials, later determined to be cocaine.

Officer Vasquez seized the drugs and defendant's personal items and returned to

his patrol car.

4 A-0768-19 In his written incident report, Officer Vasquez wrote, "Before being towed

this officer conducted an inventory of the vehicle for personal items." At the

suppression hearing, Officer Vasquez admitted neglecting to mention in his

report that defendant gave him permission to enter the car. Vasquez explained

he was new to the job and the omission "was an oversight."

On May 1, 2019, the trial judge held an evidentiary hearing on defendant's

motion to suppress the drug evidence, during which Officer Vasquez testified.

In denying the motion, the judge found the officers had reasonable suspicion to

conduct a motor vehicle stop based on defendant crossing two lanes of traffic

without signaling and cutting off another vehicle. Based on Officer Vasquez's

credible testimony, the judge held defendant consented to a limited search of his

car to retrieve a watch in the center console, medication and cell phones in the

front seat, and a sweater in the back seat. While retrieving these items at

defendant's request, Officer Vasquez discovered two vials of cocaine in plain

view. Consequently, the judge concluded the officer had probable cause to

search defendant's car for contraband and conducted a valid warrantless search,

finding still more drugs in the car. Even if the search of the car was unlawful,

the judge determined the drugs would have been found under the inevitable

discovery doctrine because, at the impound facility, the "vehicle would have

5 A-0768-19 been inventoried and the vials of cocaine that were in plain sight would have

been seen, thereby giving rise to the automobile exception."

After denial of his suppression motion, defendant proceeded to trial. A

jury found defendant guilty on all counts. The judge sentenced defendant to an

extended term of five years with three years of parole ineligibility, consisting of

concurrent five-year sentences with mandatory three-year parole terms on the

possession of drugs in a school zone counts, concurrent to the five-year

sentences on the other four drug counts. The judge also determined the sentence

would be consecutive to a nine-year sentence with a four-and-a half-year period

of parole ineligibility on defendant's separate conviction for another drug

offense. The aggregate sentence for the two criminal matters was fourteen years

with a seven-and-a-half-year period of parole ineligibility.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING SUPPRESSION BECAUSE THE SEARCH WAS NEITHER A VALID CONSENT SEARCH NOR A REASONABLE INVENTORY SEARCH, AND THE INEVITABLE-DISCOVERY EXCEPTION DOES NOT APPLY.

A. The Trial Court Erred in Finding the Evidence Admissible Under the Consent Search Exception to the Warrant Requirement Because the State Did Not – and

6 A-0768-19 Cannot – Show that Consent Was Knowingly and Voluntarily Given.

B. The Inventory Search Exception to the Warrant Requirement Does Not Apply Because the Police Did Not Give Tucker the Opportunity to Make His Own Arrangements for His Belongings and Did Not Complete a Genuine Inventory Search.

C. The Trial Court Erred in Finding that the Inevitable- Discovery Exception to [the] Exclusionary Rule Applied Because the State Did Not Show that the Evidence Would Have Been Discovered Pursuant to a Lawful Inventory Search.

In his supplemental brief filed pursuant to this court's July 26, 2021 order,

defendant raises the following additional points:

POINT II

RESENTENCING IS REQUIRED BECAUSE THE COURT DID NOT CONSIDER THE OVERALL FAIRNESS OF THE AGGREGATE SENTENCE BEFORE ORDERING THAT THE SENTENCE IMPOSED IN THIS CASE RUN CONSECUTIVE TO THE SENTENCE IMPOSED ON A SEPARATE INDICTMENT.

POINT III

THE POSSESSION, POSSESSION WITH INTENT TO DISTRIBUTE, AND POSSESSION WITH INTENT TO DISTRIBUTE IN A SCHOOL ZONE COUNTS MUST BE MERGED AND THE JUDGMENT OF CONVICTION MUST BE CORRECTED.

7 A-0768-19 We first address defendant's argument that the trial judge erred by denying

his motion to suppress the drug evidence seized from his car.

Our standard of review of the trial court's factual findings in the context

of deciding a motion to suppress evidence in a criminal case is well-settled. We

are bound to uphold the factual findings, provided those findings are "supported

by sufficient credible evidence in the record." State v. Scriven, 226 N.J. 20, 40

(2016). We may reject the judge's findings "only if they are so clearly mistaken

'that the interests of justice demand intervention and correction.'" State v. Elders,

192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

However, we review de novo the judge's legal conclusions. State v. Watts, 223

N.J. 503, 516 (2015).

Defendant argues he did not knowingly and voluntarily consent to Officer

Vasquez searching his car and, therefore, the judge should have suppressed the

drug evidence. Defendant further claims the officers failed to tell him he could

refuse the search or, alternatively, arrange for someone to retrieve his personal

belongings prior to having the car towed to an impound facility.

We reject the lack of knowing and voluntary consent to search argument

because defendant invited Officer Vasquez to enter the car to retrieve personal

items. This was not a search for contraband after a motor vehicle stop. The

8 A-0768-19 judge determined Officer Vasquez credibly testified that he had no intent to

enter the car but for defendant asking him to retrieve specific personal

belongings inside.

When a defendant voluntarily leads the police to contraband without an

express or implied request to search, he waives the State's burden of

demonstrating knowing and voluntary consent. See, e.g., State v. McGivern,

167 N.J. Super. 86 (App. Div. 1979) (police asked defendant at a traffic stop if

he had any luggage and defendant responded by opening the trunk and revealing

marijuana); State v. Humanik, 199 N.J. Super. 283 (App. Div. 1985)

(defendant's sister handed police an incriminating letter without being asked);

State v. Koedatich, 112 N.J. 225, 260-64 (1988) (defendant contacted the police

to report an assault that occurred while he was in his car and the police,

responding to defendant's report of the incident, found incriminating evidence

inside the car related to a different crime).

This case is similar to McGivern. In McGivern, during a proper motor

vehicle stop, the officer asked the defendant if he had any luggage in the car. 67

N.J. Super. at 88. Rather than responding to the officer's inquiry, the defendant

exited his car and opened the trunk, revealing a strong odor of marijuana. Ibid.

In that case, we held:

9 A-0768-19 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.

[Id. at 89 (internal citations omitted).]

Defendant's consent was not required under the specific circumstances

presented in this case. Here, there is no viable issue regarding consent to search

the car because defendant initiated the officer's entry into the car where the drug

evidence was in plain view. Defendant did not deny expressly asking the officer

to retrieve personal items from inside his car. Like the defendant in McGivern,

defendant's invitation to Officer Vasquez revealed drugs that otherwise have

been protected.

Defendant also contends the seized drug evidence should have been

suppressed because the police failed to advise him of every available option to

secure his personal property. Defendant admits he was informed of the right to

arrange for someone to pick up his car or his car would be towed to an impound

10 A-0768-19 facility. Defendant maintains the police "had to separately advise him of his

right to make other arrangements for the safekeeping of his belongings."

We reject defendant's alternative argument for suppression of the drug

evidence. Defendant told Officer Vasquez he was unable to arrange for someone

to pick up his car. It was reasonable for the officer to presume if no one was

available to drive defendant's car from the scene, then no one was available to

retrieve the personal items from the vehicle. Defendant offered no case law

requiring law enforcement to advise a defendant that someone could retrieve

personal items from the car if there was no one available to drive the car from

the scene. In any event, defendant has proffered no such individual.

Because we affirm the denial of defendant's motion to suppress the drug

evidence for the reasons stated, we need not resolve whether the judge erred in

finding the drug evidence admissible under the inevitable discovery doctrine.

For the sake of completeness, we do note it is unlikely the doctrine applied here

because the State offered no evidence, let alone the required clear and

convincing evidence, the drugs would inevitably have been discovered based on

established procedures of the Newark Police Department governing the

inventory of personal items when a vehicle is towed to an impound facility. See

State v. Maltese, 222 N.J. 525, 552 (2015) (establishing factors satisfying the

11 A-0768-19 State's burden of demonstrating normal police procedures inevitably would have

led to the discovery of the seized evidence).

We next consider defendant's arguments in support of a remand for

resentencing. We agree this matter should be remanded to the trial court for that

purpose.

First, the parties do not dispute that certain counts of defendant's

convictions must be merged. Under the doctrine of merger, "a separate sentence

should not be imposed on the count which must merge with another offense."

State v. Trotman, 366 N.J. Super. 226, 237 (App. Div. 2004). "The doctrine of

merger is based on the concept that 'an accused [who] committed only one

offense . . . cannot be punished as if for two.'" State v. Tate, 216 N.J. 300, 302

(2013) (quoting State v. Davis, 68 N.J. 69, 77 (1975)).

Since possession of drugs with intent to distribute in a school zone cannot

be committed without possession with intent to distribute drugs, these counts

should be merged. See State v. Gonzalez, 123 N.J. 462, 464 (1991) (holding the

conviction for possession with intent to distribute should merge with the

conviction for possession with intent to distribute within 1,000 feet of a school

zone); State v. Rechtschaffer, 70 N.J. 395, 411-12 (1976) (holding the

conviction for possession should merge with intent to distribute that substance).

12 A-0768-19 The State agrees defendant's convictions on counts one and two

(possession of cocaine and possession of cocaine with intent to distribute)

should be merged with his conviction on count three (possession of cocaine with

intent to distribute within a school zone) and his convictions on counts four and

five (possession of heroin and possession of heroin with intent to distribute)

should be merged with his conviction on count six (possession of heroin with

intent to distribute within a school zone). Thus, we remand for the judge to

merge these counts.

We also remand for the judge to consider the overall fairness of imposing

consecutive sentences. While this appeal was pending, the New Jersey Supreme

Court decided State v. Torres, 246 N.J. 246 (2021). In Torres, the Court

reiterated that trial courts may impose consecutive sentences after considering

the Yarbough 2 factors and stating the reasons for imposing consecutives

sentences, which reasons should address the overall fairness of the sentence. Id.

at 267-68.

Torres instructs trial judges to provide

[a]n explicit statement, explaining the overall fairness of a sentence imposed on a defendant for multiple offenses in a single proceeding or in multiple sentencing proceedings, is essential to a proper

2 State v. Yarbough, 100 N.J. 627 (1985).

13 A-0768-19 Yarbough sentencing assessment . . . . Acknowledging and explaining the fairness of the overall sentence imposed on the defendant advances critical sentencing policies of the Code, as amplified by Yarbough. It remains, in fact, the critical remnant of accountability imposed by Yarbough, since the legislative elimination of the outer limit imposed by factor six.

[Id. at 268.]

At oral argument, the State acknowledged Torres did not express a new

rule of law regarding the imposition of consecutive sentences. Rather, Torres

emphasized that judges must explicitly assess fairness when imposing

consecutive sentences.

Here, the judge did not provide the required "explicit statement"

amplifying the overall fairness of the sentence imposed. Thus, in accordance

with Torres, we remand for the trial judge to provide "[a]n explicit statement,

explaining the overall fairness" of the sentences imposed.

Affirmed in part and remanded for resentencing in accordance with this

opinion. We do not retain jurisdiction.

14 A-0768-19