NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4108-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY D. PARKER, a/k/a JOHNNIE PARKER,
Defendant-Appellant. _________________________
Argued December 19, 2018 - Decided January 17, 2019
Before Judges Ostrer and Mayer.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 14-08-2357.
Justin T. Loughry argued the cause for appellant (Loughry and Lindsay, LLC, attorneys; Justin T. Loughry, on the briefs).
Natalie A. Schmid Drummond, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Natalie A. Schmid Drummond, of counsel and on the brief).
PER CURIAM Defendant Anthony Parker appeals from an April 27, 2017 judgment of
conviction for second-degree certain persons not to have weapons, N.J.S.A.
2C:39-7(b). Defendant moved to suppress evidence of the gun seized without a
warrant, which formed the evidential basis for the charge. Upon denial of his
suppression motion, defendant entered a negotiated guilty plea and was
sentenced to prison for five years with a five-year period of parole ineligibility.
On appeal, defendant challenges the denial of his suppression motion in
accordance with Rule 3:5-7(d). We reverse and remand.
The judge conducted suppression hearings on July 26, 2016 and
September 30, 2016. The following facts were adduced at the suppression
hearings.
At 10:00 p.m. on March 16, 2014, Berlin Township police officer Kenneth
Barbagli, Jr., saw a white Dodge Charger bearing Pennsylvania license plate
JGT6711, driven by defendant, exceeding the posted speed limit. While
following defendant's car, Barbagli received a call from police dispatch,
reporting an erratic driver in the area. Dispatch related the erratic driver was in
a Chevy sedan with Pennsylvania license plate JDT6711.
Defendant drove into a shopping center and parked the car. Barbagli
parked behind defendant's car. Defendant was in the driver's seat and a female
A-4108-16T1 2 was in the front passenger seat. Barbagli asked defendant for his license,
registration, and proof of insurance.
Exhibit D-7 marked during the suppression hearing was a sample of the
blank rental pamphlet defendant claimed he gave to Barbagli. The pamphlet had
spaces for "name," "color/model," and "license plate no." The blank pamphlet
also had contact information for the rental agency. In addition, the blank
pamphlet provided liability protection insurance for the driver of the rented
vehicle within the minimum limits required by the jurisdiction in which an
accident occurs. According to the suppression hearing testimony, the actual
insurance policy was maintained in the rental agency's offices. Defendant
testified the blank pamphlet marked at the suppression hearing was identical to
the document he gave to the officer.1
Barbagli testified defendant gave him a one-page, typewritten rental
agreement, which was separate from the renal pamphlet and its contents.
Barbagli further explained a rental agreement typically constitutes the vehicle's
1 The State objected to the blank pamphlet as lacking foundation testimony to establish the pamphlet produced in court was the same pamphlet given to defendant when he rented the car. Defense counsel offered to authenticate the document by recalling the rental agency employee; however, the judge declined to adjourn the suppression hearing. The judge agreed to consider the document in conjunction with the testimony, but declined to admit the document into evidence. A-4108-16T1 3 registration. According to the officer, if the information on the rental agreement
matched the vehicle's license plate, he would have considered the document
sufficient proof of registration. However, Barbagli testified the license plate
number typed in rental agreement was JDT6711, rather than the actual license
plate number JGT6711. Because of this discrepancy, the officer considered the
registration to be defective even though the model, make, and color of the rental
car were correctly identified in the rental agreement. The only anomaly between
the rental agreement and the actual vehicle was the letter "D" rather than the
letter "G" on the license plate. Barbagli never called dispatch about the license
plate discrepancy, never asked defendant to produce additional documentation
to clarify the discrepancy, and did not contact the rental agency regarding the
license plate discrepancy.
When checking defendant's driver's license, Barbagli discovered the
license was suspended and defendant had an open child support warrant.
Barbagli asked defendant to step out of the car and placed him under arrest for
the open warrant. Barbagli then searched defendant incident to arrest and
discovered a large sum of cash.
After arresting defendant, Barbagli reread the documentation provided by
defendant. Due to the one-letter discrepancy regarding the license plate number,
A-4108-16T1 4 Barbagli determined defendant failed to provide a valid registration. Based on
defendant's failure to produce a legal registration, Barbagli conducted a
"credentials search" of the car. Barbagli admitted the car had not been reported
stolen before he conducted the credentials search. Even though the rental
agency listed its telephone number and other contact information, Barbagli did
not contact the agency to confirm the vehicle's registration. Because defendant
was under arrest, defendant was not permitted to contact the rental company to
clarify the registration information.
Barbagli searched the center console and visors for credentials, but found
no additional documentation for the car. Barbagli then used a key he found in
the center console to unlock the glove compartment. Inside the glove box,
Barbagli discovered a loaded gun. After seizing the gun, the officer had the
vehicle towed to the police impound lot.
Barbagli testified on direct examination that he returned the rental
agreement and pamphlet to the glove compartment before it was towed to the
police impound lot. Barbagli testified that he did not conduct an inventory
search of the vehicle after it was impounded. He was unaware whether such a
search was conducted by anyone else.
A-4108-16T1 5 On cross-examination, defense counsel asked Barbagli why his police
report indicated "a vehicle inventory search as per [police] department[]
guidelines." Barbagli responded he "must have forgotten" he performed an
inventory search. Barbagli explained he conducted a search of the car limited
to the console, visors, and glove compartment, and stopped his search after he
found the gun.
No inventory paperwork was presented at the suppression hearing.
Defendant believed the rental agreement and rental pamphlet were in the car
when it was impounded. Defendant was unable to confirm his belief without an
inventory list provided by the police.
A rental agency representative testified at the suppression hearing related
to defendant's rental of the car. The agency representative could only locate the
computer-generated contract for the car. He confirmed the contract listed a
white Dodge Charger bearing Pennsylvania license plate JGT6711 was rented
to defendant. The company had no record of any vehicle bearing the license
plate JDT6711. The witness explained the computer-generated contract was
not the same document that would have been given to defendant. According to
the agency representative, the customer receives a shorter rental agreement with
data from the agency's computer-generated contract. The rental agreement is a
A-4108-16T1 6 one-page document, listing the customer's name, driver's license number,
vehicle make, model, and color, and license plate number. The rental agreement
provides a phone number for the local rental office. In addition, the form
provides a "law enforcement hotline."
The rental agency representative further testified it was against company
policy to place vehicle registration cards in its rental cars in the event the cars
were stolen. The agency considers the rental agreement to be proper evidence
of the vehicle's registration. The rental agency witness also testified the
company's policy is to place insurance information in the glove compartment of
its rental vehicles.
The rental agency witness was unable to locate a copy of the actual rental
agreement provided to defendant for the white Dodge Charger. However, the
witness produced a rental agreement signed by defendant on March 14, 2014,
for a red Chevy Malibu with a South Carolina license plate. The witness
attempted to explain why there was another rental agreement signed by
defendant on the same date he rented the white Dodge Charger. The judge did
not allow the testimony because the witness lacked personal knowledge
regarding defendant's signed paperwork.
A-4108-16T1 7 Defendant also testified during the suppression hearing. According to
defendant, he reserved a red Chevy Malibu. When defendant arrived at the
local rental office, the agency printed a rental agreement for the Chevy Malibu,
and defendant signed the document before he inspected the car. Upon inspecting
the Chevy Malibu, defendant felt there was something wrong with vehicle and
asked to rent a different car. The rental agency offered defendant a white Dodge
Charger, and he accepted and signed a rental agreement for that car. Defendant
testified he was given a copy of the rental agreement for the white Dodge
Charger.
Defendant further testified he had no personal automobile insurance. He
declined the additional insurance coverage because he believed the rental agency
provided basic insurance coverage for its rental cars.
Barbagli testified defendant initially refused to provide the requested
documentation, but eventually gave him a "blank" form that appeared to be "a
pamphlet for the rental." Barbagli stated the pamphlet lacked information
describing or identifying the vehicle. The officer admitted he did not scrutinize
the blank pamphlet and did not review the pamphlet's information to determine
if the document constituted defendant's driving credentials.
A-4108-16T1 8 According to defendant, Barbagli rejected the rental agency pamphlet and
asked for more specific driving credentials. Defendant testified Barbagli then
asked for the rental agreement, which defendant provided.
In an oral decision on October 27, 2016, the judge denied defendant's
motion to suppress the gun evidence. The judge found Barbagli to be
"exceedingly credible." However, the judge failed to cite specific instances in
supporting her belief regarding the officer's testimony, and overlooked
inconsistencies in the officer's testimony highlighted by defense counsel.
Because defendant was issued two different rental agreements on the same
date, the judge found evidence of "sloppy clerical work" and "careless
dissemination of documents" by the rental agency, making it "certainly credible
that whatever paperwork was given to [defendant] . . . was faulty." While the
judge found defendant's testimony that he gave Barbagli "some documentation"
to be credible, the judged concluded defendant "did not pay close attention to
what he signed or read what he signed[,] [b]ecause . . . he would never have
signed two rental agreements." The judge disregarded defendant's testimony
explaining why there were two signed rental agreements for the same date.
The judge further found the one-letter typographical discrepancy between
the actual license plate and the plate number in the rental agreement rendered
A-4108-16T1 9 the registration defective. In addition, the judge concluded, "there is absolutely
no legal requirement for the officer to contact [the rental agency] to verify
ownership." In rejecting defendant's argument the insurance information was
contained in the rental pamphlet produced to the officer, the judge found the
"argument totally disregards the testimony of [Officer] Barbagli . . . that the
documentation provided . . . was defective and faulty[.]" The judge's finding
contradicted Barbagli's testimony that he never read the pamphlet or reviewed
any portion of its contents.
The judge also found there was no evidence Barbagli used the search as a
pretext. The judge stated dispatch's warning to Barbagli that defendant was
known to carry a gun was "of no moment" and "there[] [was] absolutely no
evidence on the record that the officer knew ahead of time there would be a
firearm in the vehicle." Based on these findings, the judge upheld the
warrantless credentials search of defendant's rental car and denied defendant's
suppression motion.
On appeal, defendant raises the following arguments:
I.
FOR A WARRANTLESS SEARCH, EVEN ONE LIMITED TO A SUPPOSED SEARCH FOR CREDENTIALS, POLICE CONDUCT MUST SATISFY THE STANDARD OF OBJECTIVE
A-4108-16T1 10 REASONABLENESS, UNDER A TOTALITY OF THE CIRCUMSTANCES APPROACH, AND OFFICER BARBAGLI'S CONDUCT IN THAT CASE FAILS THIS TEST.
II.
AT ALL EVENTS, THE LIMITED "CREDENTIALS" SEARCH DEPENDS UPON THE JUDGE'S FINDING OF THE OFFICER AS CREDIBLE – A FINDING MADE WHILE IGNORING AND OVERLOOKING IMPORTA[N]T EVIDENCE IMPEACHING AND CONFLICTING WITH THAT FINDING, WHICH THE MOTION JUDGE IN HER LENGHTY OPINION SIMPLY NEVER CONSIDERED AT ALL.
III.
THE COURT'S FINDINGS IN EFFECT SHIFTED THE BURDEN OF PROOF AND FAILED TO CONSIDER THE OBVIOUS SPOLIATION OF EVIDENCE THAT OUGHT TO HAVE RESULTED IN DRAWING INFERENCES AGAINST THE STATE'S FACTUAL CONTENTIONS WITH RESPECT TO THE CONTENT OF THE UNPRESERVED RENTAL AGREEMENT.
IV.
THE SEARCH COULD NEVER QUALIFY AS AN INVENTORY SEARCH, AND THE IMPOUNDMENT WAS AN IMPERMISSIBLE SEIZURE SINCE THE POLICE DID NOT SATISFY THE REQUIREMENTS OF AN IMPOUNDMENT SEARCH.
A-4108-16T1 11 We review a motion judge's factual findings in a suppression hearing with
great deference. State v. Gonzales, 227 N.J. 77, 101 (2016). In our review of a
"grant or denial of a motion to suppress[,] [we] 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. Gamble, 218 N.J. 412, 424
(2014). We defer "to those findings of the trial judge which are substantially
influenced by his [or her] opportunity to hear and see the witnesses and to have
the 'feel' of the case, which a reviewing court cannot enjoy." State v. Elders,
192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
The trial court's legal conclusions are entitled to no special deference, and are
reviewed de novo. State v. Jessup, 441 N.J. Super. 386, 389-90 (App. Div.
2015).
The Fourth Amendment to the United States Constitution and Article I of
the New Jersey State Constitution protect people from "unreasonable searches."
U.S. Const. amend. IV; N.J. Const. art. I, § 7. The hallmark of these
constitutional provisions is reasonableness. State v. Bruzzese, 94 N.J. 210, 217
(1983). A warrantless search is presumed to be unreasonable, and therefore
invalid; "[h]ence, the State must prove the overall reasonableness and validity
of [a warrantless] search." State v. Valencia, 93 N.J. 126, 133 (1983). A
A-4108-16T1 12 warrantless search may be found reasonable if the State proves, by a
preponderance of the evidence, the search falls within one of the "well-
delineated" exceptions to the warrant requirement. Elders, 192 N.J. at 246
(quoting State v. Pineiro, 181 N.J. 13, 19 (2004)).
One such exception is known as the "credentials search" exception,
whereby a police officer may conduct a limited search of the areas in a vehicle
where registration and insurance information is normally kept to verify a
vehicle's credentials for public safety purposes. See State v. Terry, 232 N.J.
218, 222 (2018). In Terry, the Court "reaffirm[ed its] decision in Keaton2 –and
in previous cases – that, when a driver is unwilling or unable to present proof of
ownership, a police officer may conduct a limited search for the registration
papers in the areas where they are likely kept in the vehicle." Terry, 232 N.J. at
223. However, the Court added an additional "limiting principle," stating "a
warrantless search for proof of ownership will not be justified" "[w]hen a police
officer can readily determine that the driver or passenger is the lawful possessor
of the vehicle – despite an inability to produce the registration . . . ." Ibid.
2 State v. Keaton, 222 N.J. 438, 450 (2015). A-4108-16T1 13 In analyzing and reaffirming the "limited registration exception" to the
Fourth Amendment's requiring a valid warrant prior to conducting a search, the
Court stated:
The authority to conduct a warrantless registration search is premised on a driver's lesser expectation of privacy in his vehicle and on the need to ensure highway and public safety. A motorist must be given a meaningful opportunity to produce ownership credentials, but if he is either unable or unwilling to do so, an officer may conduct a brief and targeted search of the area where the registration might normally be kept in the vehicle.
[Id. at 238-39 (citing Keaton, 222 N.J. at 448).]
The Court determined the exception continued to "rest[] on solid constitutional
ground[,]" id. at 242, but held it did not apply where "a driver or passenger
explains to an officer that he has lost or forgotten his registration, and the officer
can readily determine that either is the lawful possessor . . . . Modern technology
may increasingly allow police officers to make such timely determinations." Id.
at 243.
Here, the State failed to satisfy the requirements to invoke the credentials
search exception to conduct a warrantless search of defendant's rental car.
Barbagli testified defendant produced his driver's license, the rental agreement,
and a rental pamphlet. The rental agreement and rental pamphlet identified the
A-4108-16T1 14 rental agency as the owner of the vehicle and provided the agency's telephone
number and e-mail address to verify vehicle information. The rental pamphlet
stated the driver of the rental car was insured as required by law, and the
insurance policy information was available from the rental agency.
Testimony and documents presented during the suppression hearing
confirmed defendant was driving a white Dodge Charger with a Pennsylvania
license plate leased from the rental agency's Philadelphia airport office. Even
crediting the officer's testimony, claiming a typographical error between the
actual license plate number and the license plate number in the rental agreement,
the rental agreement identified defendant as the lessee, accurately described the
color, make, model, and out-of-state registration for the car, and six of the seven
characters on the license plate. During his testimony, Barbagli never claimed a
belief the car was stolen or unregistered. To the contrary, the officer conceded
the paperwork indicated defendant was likely truthful about his rental of the
vehicle. There is no evidence defendant was unwilling or unable to provide
registration documentation, which would have justified the credentials search of
defendant's rental car. Indeed, defendant provided the registration
documentation given to him by the rental agency.
A-4108-16T1 15 Nor was there a pressing public safety concern supporting the officer's
search of the vehicle. The car was legally parked in a shopping center, defendant
was under arrest, and his passenger was permitted to leave the scene. Under the
circumstances, there was no risk to public safety that someone might flee and
drive away in a potentially stolen or uninsured vehicle.
Consistent with the Court's instruction in Terry, the officer could have
confirmed defendant was a "lawful possessor of the vehicle." Terry, 232 N.J. at
223. If a driver cannot produce a vehicle's registration, an officer must employ
a minimal investigatory effort, including the use of basic technology, before a
warrantless credentials search will be deemed reasonable. Id. at 243. Here, the
officer never checked the car's license plate through available law enforcement
databases. Had the officer performed such a simple task, he presumably would
have learned the name of the rental agency owning the car, consistent with
defendant's documentation. Nor did the officer contact the rental agency despite
the law enforcement hotline provided in the rental agreement.
Having reviewed the record, we are satisfied the warrantless search of
defendant's rental car based on the credentials search exception is inapplicable
in this case. Absent satisfaction of the requirements to invoke the credentials
search exception, the officer would have had to discover the gun pursuant to the
A-4108-16T1 16 plain view exception for a warrantless search. Because the gun was in the locked
glove compartment, the gun was not in plain view and a search warrant was
required. State v. Harris, 211 N.J. 566, 581 (2012). Under these circumstances,
the gun evidence should have been suppressed.
We briefly address the State's argument that if the credentials search
exception did not apply, the gun would have been inevitably discovered during
the inventory search at the impound lot. The State failed to raise the inevitable
discovery argument at the suppression hearing. Therefore, the issue was not
preserved for appeal. See State v. Mahoney, 226 N.J. Super. 617, 626 (App.
Div. 1988) (declining to consider inevitable discovery argument advanced by
the State for the first time on appeal). "[T]he points of divergence developed in
proceedings before a trial court define the metes and bounds of appellate
review." State v. Witt, 223 N.J. 404, 419 (2015) (quoting State v. Robinson,
200 N.J. 1, 19 (2009)). "Parties must make known their positions at the
suppression hearing so that the trial court can rule on the issues before it." Ibid.
"For sound jurisprudential reasons, with few exceptions, our appellate courts
will decline to consider questions or issues not properly presented to the trial
court when an opportunity for such a presentation is available." Ibid.
A-4108-16T1 17 Under the circumstances, the order denying the defendant's suppression
motion is reversed, defendant's conviction is vacated, and the matter is
remanded.
Reversed and remanded for further proceedings consistent with our
opinion. We do not retain jurisdiction.
A-4108-16T1 18