State v. Cabrita

• Docket Number: A-2980-21
• Decision Date: 25 January 2024
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. MATTHEW H. CABRITA, a/k/a MATT CABRITA, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

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STATE OF NEW JERSEY, Plaintiff-Respondent, v. MATTHEW H. CABRITA, a/k/a MATT CABRITA, Defendant-Appellant.

No. A-2980-21

Superior Court of New Jersey, Appellate Division

January 25, 2024

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.

Argued October 24, 2023

On appeal from the Superior Court of New Jersey, Law Division Bergen County, Indictment No. 18-02-0161.

Robert C. Pierce argued the cause for appellant.

Edward F. Ray, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; William P Miller, of counsel and on the brief; Catherine A. Foddai Legal Assistant, on the brief).

Before Judges Gooden Brown and Natali

PER CURIAM

After the trial judge denied his motion to suppress evidence seized from his car and home without a warrant, defendant Matthew Cabrita entered a negotiated guilty plea to first-degree possession of a controlled dangerous substance (CDS) with intent to distribute and was sentenced to ten years in prison. Defendant now appeals from the denial of his suppression motion ^[1] and challenges his bargained-for sentence raising the following points for our consideration:

POINT I

THE TRIAL COURT ERRED BY DENYING [DEFENDANT]'S MOTION TO SUPPRESS THE FRUITS OF THE WARRANTLESS SEARCH BECAUSE THE POLICE DID NOT HAVE REASONABLE SUSPICION OF CRIMINAL ACTIVITY TO CONDUCT THE MOTOR VEHICLE STOP OR TO REQUEST CONSENT FROM [DEFENDANT] TO SEARCH HIS MOTOR VEHICLE.

POINT II

THE TRIAL COURT ERRED BY DENYING [DEFENDANT]'S MOTION TO SUPPRESS THE FRUITS OF THE WARRANTLESS SEARCH BECAUSE [DEFENDANT]'S CONSENT TO SEARCH HIS MOTOR VEHICLE AND HOME WERE NOT VOLUNTARY.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION BY NOT SENTENCING [DEFENDANT] ONE-DEGREE LOWER BECAUSE THE MITIGATING FACTORS SUBSTANTIALLY OUTWEIGHED THE AGGRAVATING FACTORS AND THE INTERESTS OF JUSTICE SO REQUIRED.

Based on our review of the record and the applicable legal principles, we affirm the conviction and sentence.

I.

At the suppression hearing, the State produced Detectives Michael Klumpp and Elliot Cookson, veterans of the Bergen County Prosecutor's Office (BCPO). Klumpp, a BCPO narcotics detective, testified that in August 2017, he received information from a confidential informant (CI) that defendant "was involved in the distribution of [CDS]." The CI provided defendant's telephone number and identified defendant's photograph from a Department of Motor Vehicle (DMV) database search conducted by Klumpp. The CI informed Klumpp that he had purchased CDS from defendant in the past either by going to defendant's residence at an apartment building on Bloomfield Avenue in Bloomfield or by defendant "deliver[ing] the drugs to the CI."

At Klumpp's request, during the week of September 4, 2017, the CI arranged to make a controlled purchase of CDS from defendant at defendant's residence in Bloomfield. Prior to the controlled buy, police established surveillance in the area of defendant's residence. In addition, the CI was searched and provided with a specified amount of currency to complete the transaction. Klumpp followed the CI to defendant's residence and observed defendant exit the building, interact with the CI for a short period of time, and then return to his residence. After departing, the CI went to a predetermined location where he turned over the CDS he had purchased from defendant to Klumpp. The CI was also searched with negative results. On the same date, the surveillance team observed a Honda Civic with a New Jersey license plate that was registered to defendant and identified by the CI as belonging to defendant.

The same month, Klumpp received information from a different CI that "[defendant] was involved in the distribution of [CDS]." The second CI provided Klumpp with defendant's phone number, which was the same number used by the first CI to contact defendant, and identified the photo of defendant from the DMV database search. At Klumpp's request, the second CI made arrangements to conduct a controlled purchase of CDS from defendant on September 6, 2017, at a predetermined location in Wallington. Surveillance teams were set up to conduct surveillance around defendant's residence in Essex County as well as the prearranged drug buy location in Bergen County.

Klumpp positioned himself in the area of defendant's residence and observed defendant enter his Honda Civic and depart the location at approximately 4:20 p.m. Officers maintained visual surveillance of defendant's vehicle while en route. At approximately 4:40 p.m., Cookson, a member of the investigative team, conducted an investigative motor vehicle stop of defendant's vehicle based on the prearranged drug transaction. The stop was made as defendant entered Wallington, but prior to him arriving at the prearranged location. Cookson acknowledged that no motor vehicle violations were observed prior to the stop.

Upon approaching defendant's vehicle, Cookson identified himself and informed defendant that "[he] was doing an investigation regarding him being involved in narcotics." Cookson asked defendant "to step out of the vehicle, "and, after he complied, asked defendant "if he[ would] be willing to allow [Cookson] to search his vehicle." Cookson specifically informed defendant that he had the right to refuse to consent, that he had the right to withdraw his consent at any time, and that he had the right to be present during the search.

After reading out loud to defendant the BCPO Consent to Search Vehicle form containing these rights, Cookson provided the form to defendant. The form indicated that the trunk, among other areas, could be searched. After reviewing the form, defendant consented to the search, both verbally and in writing, and signed the form at 4:50 p.m. During the search of defendant's vehicle, Cookson found "a clear plastic wrapper containing a white powdery substance suspected of being cocaine" "in the trunk, in a jacket pocket." As a result, defendant was placed under arrest.

When Klumpp arrived at the scene, the CDS had already been located in defendant's trunk. While defendant was handcuffed and seated in the back of Cookson's vehicle, Klumpp informed him of his Miranda^[2] rights using a Miranda card. After reading defendant his rights, Klumpp asked defendant for consent to search his residence by reading a consent form out loud to defendant. Among other things, Klumpp advised defendant of his right to refuse to consent, of his right to withdraw his consent at any time, and of his right to be present during the search. After reviewing the form, defendant gave verbal consent to the search and signed the form at 5:40 p.m., authorizing a search of his home. The search was conducted at approximately 6:15 p.m. in defendant's presence.

Among the items recovered from defendant's residence were suspected CDS, including cocaine and marijuana, drug paraphernalia, and over $86,000 in United States currency.

Defendant was subsequently charged in a four-count Bergen County indictment with first-degree maintaining or operating a CDS production facility, N.J.S.A. 2C:35-4 (count one); first-degree possession of CDS, namely, cocaine, in a quantity of five ounces or more with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count two); third-degree possession of CDS, namely, cocaine, N.J.S.A. 2C:35-10(a)(1) (count three); and second-degree money laundering, N.J.S.A. 2C:21-25(a) (count four).

Following the suppression hearing, the judge entered an order on August 7, 2018, denying defendant's motion. In an accompanying written opinion, the judge credited the testimony of both detectives "based upon their lengthy experience in the narcotics squad[,] their demeanor and body language while testifying, and the manner in which they responded to questions both on direct examination and cross-examination." As such, the judge made detailed factual findings in accordance with their testimony.

Next, the judge found the motor vehicle stop was justified by the "investigatory stop" exception to the warrant requirement. Specifically, the judge determined that the prior undercover drug buy between defendant and the first CI at defendant's residence and the second planned undercover drug buy between defendant and the second CI,

together with the fact that defendant did traverse from Bloomfield in Essex County to Wallington in Bergen County en route to the predetermined transaction site, clearly and succinctly provide specific and articulable facts which rise to establish reasonable suspicion of criminal activity to justify a stop of defendant's vehicle and to request to search that vehicle.

The judge added that "[t]he recovery of CDS from defendant's vehicle" further justified the "request to search defendant's residence." Turning to the voluntariness of defendant's consent to search his vehicle and residence, the judge stated:

Defendant argues that he was removed from his vehicle surrounded by numerous law enforcement officers; and handed a document to sign, knowing that incriminating evidence would be discovered. Under these circumstances, defendant asserts the "consent" was not voluntary, but was compulsory.

Defendant was ordered to exit his vehicle and was advised he was the target of the CDS investigation. Although not under arrest, defendant was not free to leave, and was therefore in custody when Cookson requested consent to search his vehicle....

Cookson advised defendant that [he] had the right to withhold consent to search the vehicle, could be present at the search, and could terminate the search at any time. The

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