NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4649-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VINCENT JACKSON, a/k/a VINCE JACKSON,
Defendant-Appellant. _____________________________
Argued October 1, 2018 – Decided November 8, 2018
Before Judges Fasciale and Rose.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-07- 1268.
Elyse S. Schindel argued the cause for appellant (Hobbie, Corrigan & Bertucio, PC, attorneys; Edward C. Bertucio, of counsel and on the briefs; Elyse S. Schindel, on the briefs).
Monica do Outeiro, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Monica do Outeiro, of counsel and on the brief). PER CURIAM
Following denial of his motion to suppress evidence seized without a
search warrant, defendant Vincent Jackson pled guilty to second-degree
possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.
2C:35-5(b)(3), as amended from a first-degree offense, charged in a six-count
Monmouth County indictment. Defendant was sentenced to an eight-year prison
term with four years of parole ineligibility in accordance with the Brimage
guidelines,1 and the State's recommendation in the plea agreement. 2 The
remaining charges in the indictment, a related disorderly persons offense
charged in a summons, and two unrelated indictments, were dismissed pursuant
to the plea agreement. The sentencing judge ordered a twenty-four-month
suspension of defendant's driver's license, and imposed appropriate fines and
penalties.
On appeal, defendant challenges the denial of his motion. He argues the
police lacked a reasonable and articulable suspicion to stop his vehicle, lacked
1 State v. Brimage, 153 N.J. 1 (1998). 2 Defendant retained the right to argue for a parole ineligibility period of two years and four months, and a hardship waiver of his driver's license suspension. See N.J.S.A. 2C:35-16(a). A-4649-16T4 2 probable cause to arrest him for obstruction, and the resulting search incident to
his arrest was unlawful. Defendant also claims that his girlfriend's consent to
search her apartment, and the search and seizure of a safe, which was conducted
pursuant to a warrant, were unlawful. Lastly, defendant contends his sentence
was excessive. We reject these arguments and affirm.
I.
We derive the following facts from the record developed at the
suppression hearing. Late in the evening on April 6, 2013, Asbury Park police
officers assigned to the Street Crimes Unit were on routine patrol. While parked
in an undercover vehicle in a high crime area, they observed a green Oldsmobile
roll past a stop sign without completely stopping. Officer Joseph Spallina
stopped the vehicle for violating the stop sign statute, N.J.S.A. 39:4-144. After
conducting the stop, Spallina recognized the driver as defendant from a prior
arrest and an ongoing narcotics investigation conducted by the Monmouth
County Prosecutor’s Office (MCPO). Notably, Spallina testified that, had he
known defendant was driving the vehicle, he would not have made the stop to
avoid jeopardizing the MCPO's investigation.
Spallina approached the driver’s side window and noticed both of
defendant's hands were placed in his jacket pockets. In response to Spallina's
A-4649-16T4 3 request to produce his license and registration, defendant handed the officer his
credentials with his right hand, but his left hand remained in his pocket.
Defendant "seemed nervous. His hand was shaking as he was handing [Spallina]
the information. And he was sweating profusely. . . . [even though] it was about
[forty] degrees out" and defendant's car windows were open.
Spallina described the area where the motor vehicle stop occurred as "the
subject of numerous narcotics and weapons[-]related investigations and arrests.
It's also been the subject of a number of shots[-]fired calls . . . [and] a number
of reports of . . . armed subjects . . . ." Spallina asked defendant "[m]ultiple
times" to show "both of his hands" for the safety of the officers, but defendant
refused to do so. Concerned that defendant was armed, Spallina asked him to
step out of the vehicle.
Defendant complied with Spallina's request by "reach[ing] all the way
over" and opening the car door with his right hand, which seemed "unusual."
As he exited the vehicle, defendant turned the left side of his body away from
Spallina. "Again, [defendant] seemed nervous. His eyes were darting back and
forth, as if he were looking for [an] avenue of escape. And he was sweating."
Spallina then observed defendant "moving [his left hand] around as if he was
manipulating something." Because defendant refused to remove his hand,
A-4649-16T4 4 Spallina placed him under arrest for obstructing the motor vehicle stop. N.J.S.A.
2C:29-1(a). Concerned that defendant was armed with a weapon, Spallina then
grabbed defendant’s left arm to prevent him from removing anything from his
pocket. In response, defendant clenched his fist and pushed the object further
into his jacket. With assistance from his three partners, Spallina handcuffed
defendant and performed a search incident to the arrest, seizing approximately
four and a half bricks of heroin from defendant's left jacket pocket and ten bags
of heroin from his right jeans pocket.
After defendant was transported to police headquarters, Spallina and
another officer responded to an apartment in a housing complex on Washington
Avenue. Defendant's girlfriend, S.C., 3 leased the apartment and defendant
stayed there on "some nights." S.C. signed a consent to search form, and
permitted the officers to search the bedroom where defendant kept some clothing
and a safe. S.C. told the officers she wanted defendant's contraband out of her
apartment because it could jeopardize her and her children. A K-9 unit
responded to the apartment and positively alerted for the presence of narcotics
in the safe. The officers then removed the safe, obtained a warrant to search its
contents, and seized CDS located therein.
3 We use initials to protect S.C.'s privacy. A-4649-16T4 5 The court held a pretrial testimonial hearing regarding defendant's motion
to suppress the evidence seized from his person and from the safe. Spallina and
one other officer testified at the hearing. Defendant did not testify or present
any evidence. The motion judge denied defendant's motion, finding: (1) the
traffic stop was lawful; (2) Spallina was justified in ordering defendant to exit
the car; (3) defendant's refusal to remove his hands from his pockets gave
Spallina probable cause to arrest him; (4) the search of defendant's person
incident to the arrest was lawful; (5) the apartment search was legal because
S.C. knowingly and freely consented; (6) and all of the above were valid steps
in obtaining the warrant to search the safe. This appeal followed.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE TRIAL COURT ERRONEOUSLY DENIED [DEFENDANT]'S MOTION TO SUPPRESS EVIDENCE SEIZED WITHOUT A WARRANT AND THE APPELLATE DIVISION SHOULD REVERSE THE TRIAL COURT'S DECISION AND SUPPRESS THE PHYSICAL EVIDENCE IN THIS CASE.
A. THE STOP AND PROLONGED DETENTION OF [DEFENDANT]'S MOTOR VEHICLE WAS UNLAWFUL.
B. [DEFENDANT]'S ARREST WAS UNLAWFUL.
A-4649-16T4 6 C. THE SEARCH OF [DEFENDANT]'S PERSON AS A "SEARCH INCIDENT TO ARREST" WAS UNLAWFUL.
D. THE REQUEST FOR CONSENT AND THE SUBSEQUENT SEARCHES WERE UNLAWFUL.
E. THE ITEMS SEIZED DURING THE EXECUTION OF THE SEARCH WARRANT SHOULD HAVE BEEN SUPPRESSED.
POINT II
THE TRIAL COURT ERRONEOUSLY SENTENCED [DEFENDANT] TO EIGHT (8) YEARS IN NEW JERSEY STATE PRISON WITH A FOUR (4) YEAR PERIOD OF PAROLE INELIGIBILITY AND A TWENTY-FOUR (24) MONTH PERIOD OF DRIVER'S LICENSE SUSPENSION. THE TRIAL COURT SHOULD HAVE SENTENCED [DEFENDANT] TO EIGHT (8) YEARS IN NEW JERSEY STATE PRISON WITH THE MINIMUM PERIOD OF PAROLE INELIGIBILITY AND NO PERIOD OF LICENSE SUSPENSION. 4
II.
Our review of a trial judge's decision on a motion to suppress is "highly
deferential." State v. Gonzales, 227 N.J. 77, 101 (2016); State v. Robinson, 200
4 Because each of defendant's point headings cite to the March 2, 2015 order denying his motion to suppress, they fail to comply with Rule 2:6-2(a)(1), mandating citation to "the place in the record where the opinion or ruling in question is located." Nonetheless, we consider the merits of defendant's arguments. See State v. Kyles, 132 N.J. Super. 397, 400 (App. Div. 1975). A-4649-16T4 7 N.J. 1, 15 (2009). "An appellate court reviewing a motion to suppress evidence
in a criminal case must uphold the factual findings underlying the trial court's
decision, provided that those findings are 'supported by sufficient credible
evidence in the record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting
State v. Scriven, 226 N.J. 20, 40 (2016)). We do so "because those findings 'are
substantially influenced by [an] opportunity to hear and see the witnesses and to
have the "feel" of the case, which a reviewing court cannot enjoy.'" State v.
Gamble, 218 N.J. 412, 424-25 (2014) (alteration in original) (quoting State v.
Johnson, 42 N.J. 146, 161 (1964)). We owe no deference, however, to
conclusions of law made by trial courts in suppression decisions, which we
instead review de novo. State v. Watts, 223 N.J. 503, 516 (2015).
Our federal and state constitutions both guarantee the right of persons to
be free from unreasonable searches and seizure in their home. U.S. Const.
amend. IV; N.J. Const. art. I, ¶ 7. "[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). "[T]he 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
A-4649-16T4 8 warrant requirement.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 19-20
(2004)).
A.
We first address defendant's contentions that the stop of his vehicle and
"prolonged detention" were unlawful and a "pretext to conduct warrantless
searches of his person in conjunction with an ongoing narcotics investigation."
A motor vehicle stop is lawful if authorities have a "reasonable and articulable
suspicion" that violations of motor vehicle or other laws have been or are being
committed. State v. Bacome, 228 N.J. 94, 103 (2017) (quoting State v. Carty,
170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351 (2002)).
Reasonable suspicion may arise even where a minor traffic offense is
committed. Ibid. See State v. Barrow, 408 N.J. Super. 509, 514-19 (App. Div.
2009) (holding police officer had reasonable, articulable basis for traffic stop
when driver had two items hanging from rearview mirror that officer deemed
obstructions to the driver's vision); State v. Cohen, 347 N.J. Super. 375, 381
(App. Div. 2002) (holding darkly tinted windows of the defendant's vehicle
provided reasonable basis for traffic stop).
Here, Spallina observed defendant's failure to stop his motor vehicle in
violation of N.J.S.A. 39:4-144. That eyewitness observation is sufficient to
A-4649-16T4 9 legitimize a traffic stop. See Bacome, 228 N.J. at 103. Defendant's contention
that the State did not elicit testimony that he actually failed to stop at the stop
sign is belied by the record. Indeed, Spallina testified on direct examination that
defendant "[s]lowed down, but didn't come to a complete stop before he made
the right turn onto Prospect." Spallina confirmed that observation on cross -
examination stating, defendant "slowed" at the stop sign "[a]nd then turned
right."
Nor was the stop unnecessarily prolonged. Prolonging a traffic stop
"beyond the time reasonably required to complete the . . . stop's purpose . . . is
unlawful absent independent reasonable suspicion of criminal activity." State
v. Dunbar, 229 N.J. 521, 536 (2017). However, "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) (internal quotation marks
omitted).
While nervousness or anxiety alone might be insufficient grounds to
support an investigatory detention, a person's "furtive movements inside a
recently stopped vehicle [may] provide[] an objectively reasonable basis for
A-4649-16T4 10 officers' exercising heightened caution, justifying removal . . . ." Bacome, 228
N.J. at 97. In Bacome, the police stopped the defendant's vehicle after noticing
the passenger was not wearing a seatbelt. Ibid. The Court found the defendant
simply "lean[ing] forward as if he were reaching under his seat" constituted valid
justification for the officers ordering defendant out of the car. Ibid.
Here, defendant was nervous and perspiring profusely on a cold night in
a high crime area known for shootings. He made furtive movements with his
left hand, which he refused to remove from his jacket pocket despite repeated
requests from Spallina. The officer, therefore, had reason to suspect defendant
could be armed. Thus, "independent reasonable suspicion of criminal activity"
justified prolonging defendant's detention. See Dunbar, 229 N.J. at 536.
Moreover, defendant's claim that the stop was illegal as a pretext to search
for drugs is belied by the record. Pretextual stops are generally permitted.
Whren v. United States, 517 U.S. 806, 814-15 (1996). New Jersey generally
follows Whren. See Bacome, 228 N.J. at 103 ("The objective reasonableness of
police officers' actions—not their subjective intentions—is the central focus of
federal and New Jersey search-and-seizure jurisprudence."); Dickey, 152 N.J. at
475 (citing Whren and noting that a traffic stop is valid as long as police had
probable cause to believe driver is violating motor vehicle law).
A-4649-16T4 11 Only in certain racial-profiling situations, which are not alleged here, has
our Supreme Court found pretextual stops unlawful. See State v. Segars, 172
N.J. 481, 495 (2002) (holding defendant must establish prima facie racial
profiling and that State must not have a race-neutral reason for stop). There is
nothing in the record to suggest Spallina's actions were otherwise unreasonable.
See Bacome, 228 N.J. at 103. Further, Spallina's testimony casts doubt that the
traffic stop was a pretext for a drug search. Rather, Spallina's unrefuted
testimony established that he was not aware defendant was driving the car until
he pulled him over, and would not have done so to avoid interfering with the
MCPO's investigation. In fact, Spallina "[took] the hit" for arresting defendant
by advising an MCPO sergeant before the sergeant heard about the arrest from
other sources. We are, therefore, unpersuaded that the stop was unlawfully
pretextual or unreasonable.
B.
We next address defendant's arguments that his arrest for obstruction was
unlawful. In doing so, we address defendant's overlapping arguments that he
was unlawfully charged with obstruction because he did not physically interfere
with Spallina's duties; he should have been issued a summons because
A-4649-16T4 12 obstruction is a disorderly persons offense; and the resultant search incident to
his arrest for that offense was unlawful.
"In determining whether there was probable cause to make an arrest, a
court must look to the totality of the circumstances and view those circumstances
from the standpoint of an objectively reasonable police officer." State v. Basil,
202 N.J. 570, 585 (2010) (citations and internal quotations omitted). The
personal observations of law enforcement officers are generally regarded as
highly reliable and sufficient to establish probable cause. See State v. O'Neal,
190 N.J. 601, 613-14 (2007); State v. Moore, 181 N.J. 40, 46-47 (2004).
A person commits obstruction if he "purposely obstructs, impairs or
perverts the administration of law or other governmental function or prevents or
attempts to prevent a public servant from lawfully performing an official
function by means of flight, intimidation, force, violence, or physical
interference or obstacle, or by means of any independently unlawful act."
N.J.S.A. 2C:29-1(a). A police officer acting in objective good faith is
considered to be "lawfully performing an official function." State v. Reece, 222
N.J. 154, 171 (2015). "A suspect is required to cooperate with the investigating
officer even when the legal underpinning of the police-citizen encounter is
questionable." Id. at 172.
A-4649-16T4 13 We have acknowledged circumstances that give rise to obstruction "often
turn on the precise details of the charged conduct." State v. Powers, 448 N.J.
Super. 69, 74 (App. Div. 2016), certif. denied, 231 N.J. 111 (2017). For
example, physically resisting an officer's efforts to complete a pat-down search
can constitute an obstruction. See State v. Wanczyk, 201 N.J. Super. 258, 262-
63 (App. Div. 1985).
Here, after defendant's car was lawfully stopped in a high crime area, he
repeatedly refused to comply with Spallina's requests to remove both hands from
his jacket pockets. After he exited the vehicle, defendant attempted to conceal
the left side of his body from Spallina. Defendant then pushed the object in his
pocket further inside the jacket, while sweating profusely and looking for an
"avenue of escape." Based on the totality of defendant's actions, and Spallina's
concern that defendant was concealing a weapon or might flee the scene,
Spallina had probable cause to arrest defendant for obstruction.
Further, defendant's reliance on State v. Dangerfield, 171 N.J. 446 (2002),
is misplaced. In Dangerfield, our Supreme Court recognized that its prior
holding in State v. Pierce, 136 N.J. 184, 190-93 (1994) favored the issuance of
citations and summonses instead of custodial arrests for traffic offenses in
certain situations. Dangerfield, 171 N.J at 458. However, the Court declined to
A-4649-16T4 14 extend Pierce beyond traffic offenses, stating that "we do not disturb the
authority of the police to arrest for disorderly and petty disorderly persons
offenses that occurred in their presence." Id. at 460. Obstruction, at the very
least, is a disorderly persons offense. Moreover, police may search an arrestee
incident to a lawful arrest "to remove from the arrestee's reach things that might
be used to assault an officer . . . ." Id. at 461.
Here, the record firmly support's the motion judge's finding that the motor
vehicle stop occurred in a high crime area and Spallina was concerned for
"officer safety." Based on Spallina's observations and the events as they
unfolded from the time he stopped defendant's vehicle until he stepped out of
the car, the officer had probable cause to arrest defendant for obstruction and
search him incident to that arrest.
C.
We next turn to defendant's contention that the search of S.C.'s apartment
was unlawful. Consent to search is a well-recognized exception to the warrant
requirement. State v. Cushing, 226 N.J. 187, 199 (2016). The State bears the
burden of proving "the consent was voluntary and that the consenting party
understood his or her right to refuse consent." State v. Maristany, 133 N.J. 299,
305 (1993).
A-4649-16T4 15 A third party's ability to consent to a search depends on the party's
occupancy of and ''common authority' over the premises." Cushing, 226 N.J. at
199 (quoting Fernandez v. California, 571 U.S. 292, 299 (2014)). Evidence
seized during a search need not be suppressed "if the 'officer's belief that the
third party had the authority to consent was objectively reasonable in view of
the facts and circumstances known at the time of the search.'" Id. at 200 (quoting
State v. Coles, 218 N.J. 322, 340 (2014)).
In this case, even assuming defendant's occasional overnight stays at
S.C.'s apartment rendered him a co-occupant of the premises, there is ample
evidence in the record to support the judge's determination that S.C. had
authority to consent to the search of her residence. S.C. invited the officers
inside her apartment, told them she wanted defendant's things removed, and led
the officers into the bedroom where defendant kept "some belongings" because
he stayed there on "some nights." S.C. executed a consent to search form after
being advised that she could refuse consent, or even decide to terminate the
search at any time. Her concern for her children further underscores her
voluntary consent to search the premises.
A-4649-16T4 16 To the extent not addressed, defendant's remaining arguments challenging
the evidence seized, including denial of his request for a Franks hearing,5 lack
sufficient merit to warrant discussion. R. 2:11-3(e)(2).
III.
Lastly,we address defendant's excessive sentencing argument. We review
a "trial court's 'sentencing determination under a deferential [abuse of
discretion] standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015)
(quoting State v. Lawless, 214 N.J. 594, 606 (2013)). Where, as here, a sentence
is imposed pursuant to a plea agreement the same abuse-of-discretion standard
applies. State v. Sainz, 107 N.J. 283, 292 (1987); State v. Roth, 95 N.J. 334,
364-65 (1984).
We affirm a sentence if: (1) the trial court followed the sentencing
guidelines; (2) its findings of fact and application of aggravating and mitigating
factors were based on competent, credible evidence in the record; and (3) its
application of the law to the facts does not "shock[] the judicial conscience."
State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting Roth, 95 N.J. at 364-65).
When reviewing a trial court's sentencing decision, we will not "substitute [our]
5 Franks. v. Delaware, 438 U.S. 154, 170 (1978). A-4649-16T4 17 judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70
(2014).
The sentencing judge must identify and consider "any relevant
aggravating and mitigating factors" that "'are called to the court's attention[,]'"
and "explain how [it] arrived at a particular sentence." State v. Case, 220 N.J.
49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). The
judge's explanation of the aggravating and mitigating factors need not, however,
"be a discourse." State v. Dunbar, 108 N.J. 80, 97 (1987), overruled in part by
State v. Pierce, 188 N.J. 155 (2006). A sentencing court must "undertake[] an
examination and weighing of the aggravating and mitigating factors listed in
[N.J.S.A.] 2C:44-1(a) and (b)." Roth, 95 N.J. at 359. "An appellate court is
bound to affirm a sentence, even if it would have arrived at a different result, as
long as the trial court properly identifie[d] and balance[d] aggravating and
mitigating factors that [were] supported by competent credible evidence in the
record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
Here, the sentencing judge found aggravating factors: three, N.J.S.A.
2C:44-1(a)(3) (risk of committing another offense); six, N.J.S.A. 2C:44-1(a)(6)
(extent of defendant's prior criminal record and the seriousness of the offenses );
and nine, N.J.S.A. 2C:44-1(a)(9) (specific and general deterrence). The court
A-4649-16T4 18 found no mitigating factors, thereby rejecting defendant's blanket request that
the following mitigating factors apply: one, N.J.S.A. 2C:44-1(b)(1) (defendant's
conduct did not cause or threaten serious harm); two, N.J.S.A. 2C:44-1(b)(2)
(defendant did not contemplate that his conduct would cause or threaten serious
harm); eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the result of
circumstances unlikely to recur); and nine, N.J.S.A. 2C:44-1(b)(9) (defendant's
character and attitude "indicate that he is unlikely to commit another offense").
On appeal, defendant contends the trial judge erroneously imposed the
maximum sentence under the plea agreement, and failed to explain why none of
the mitigating factors applied. While the judge's explanation for finding no
mitigating factors was brief, defendant has not presented a meaningful argument
or legal basis supporting any of the mitigating factors raised before the
sentencing judge. Conversely, "competent credible evidence in the record[,]"
see O'Donnell, 117 N.J. at 215, supports the judge's findings for aggravating
factors three, six and nine. For example, the judge cited defendant's seven prior
convictions from 1989 to 2006 "for possession of CDS, aggravated assault,
distribution of CDS, and possession with intent to distribute on a number of
occasions."
A-4649-16T4 19 Further, defendant did not demonstrate "compelling circumstances"
warranting waiver of his driver's license suspension. N.J.S.A. 2C:35 -16(a).
Specifically, defendant did not allege that loss of his license would "result in
extreme hardship and alternate means of transportation are not available." Ibid.
Rather, defense counsel simply stated at sentencing that, "Even though
[defendant] is going to [s]tate [p]rison, that will be one less thing that he'll need
to account for when he becomes eligible for a half-way house, which generally
occurs about half way into his period of parole ineligibility." Defendant did not,
however, present any evidence that public transportation, for example, would
not be available to him when he is released to a half-way house.
We thus find no reason to second-guess the trial court's application of the
sentencing factors. Defendant's prison term is near the middle of the second -
degree sentencing range, and is warranted given his seven prior convictions,
which include CDS offenses. In sum, the sentence imposed was manifestly
appropriate and by no means shocks our judicial conscience. Roth, 95 N.J. at
365.
Affirmed.
A-4649-16T4 20