State v. Dolly

• Decision Date: 20 May 1991
• Citation: 605 A.2d 238,255 N.J.Super. 278
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Timothy Ray DOLLY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 278

255 N.J.Super. 278

605 A.2d 238

STATE of New Jersey, Plaintiff-Respondent, v. Timothy Ray DOLLY, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted May 7, 1991.

Decided May 20, 1991.

Wilfredo Caraballo, Public Defender, for defendant-appellant (J. Michael Blake, Asst. Deputy Public Defender, of counsel and on the brief).

Robert J. Del Tufo, Atty. Gen., for plaintiff-respondent (Cherrie Madden Black, Deputy Atty. Gen., of counsel and on the letter-brief).

Before Judges BAIME and A.M. STEIN.

The opinion of the court was delivered by

BAIME, J.A.D.

Following the denial of his motion to suppress evidence, defendant entered a retraxit plea of guilty to possession of cocaine ( N.J.S.A. 2C:35-10a(1)). The Law Division imposed a probationary term of two years and a fine of $500. Defendant now appeals, contending that the search of his person and vehicle was unlawful. We agree and reverse.

I.

On September 30, 1988, Detective William T. Johnson submitted an affidavit in support of a search warrant for a combined residence and place of business located in Dennis Township. The affidavit alleged that Elmer Harris, the owner of the premises, was selling various controlled dangerous substances from this location. This allegation was based upon information received from several informants. Although the affidavit alleged in general fashion that Harris was selling cocaine from both his residence and place of business, the only particularized information pertained to sales conducted from Harris' second-floor bedroom. The affidavit alleged that large quantities of cocaine were being sold on an ongoing basis and that Harris had received several guns as payment for the drugs. The premises were described as a two-story structure, containing a Gulf gasoline station and convenience store in the front and a dwelling in which Harris and his daughter resided in the rear. Pursuant to Detective Johnson's request, the warrant authorized the search of the entire premises, including "all outbuildings and vehicles [present] at the time of ... execution."

The warrant was executed at approximately 4:30 p.m. on September 30, 1988. Ten State Troopers entered the premises with guns drawn. Approximately 20 minutes after initiating the search, Trooper Susan M. David noticed defendant's automobile in the front of the building parked in a parking area to the right of the gasoline pumps near the entrance to the convenience store. Trooper David and Detective Richard Ashman advised defendant that they were conducting a search of the premises and all vehicles present pursuant to a search warrant. Defendant was asked whether he would consent to a search of his automobile. Trooper David read a consent to search form which stated that defendant had the right to refuse.

Apparently believing that the consent form authorized the search of defendant's person as well as his automobile, Detective Ashman reached into defendant's front shirt pocket and discovered a small packet containing cocaine. Defendant was then asked whether "he had anything else on him." Because defendant appeared "nervous," the officer directed him to a nearby garage where a search of his undershorts disclosed a matchbox containing three additional packets of cocaine. A small quantity of cocaine was also discovered in defendant's automobile.

Based upon this evidence, the Law Division denied defendant's motion to suppress. In his oral opinion, the judge made no finding, one way or the other, concerning whether the warrant properly authorized the search of defendant's automobile. Instead, the judge concluded that defendant had voluntarily consented to the search of the vehicle and that there was probable cause to search his person.

We hold that both searches were invalid. We are convinced that the authorization contained in the warrant was overly broad, that the State failed to establish the voluntariness of defendant's consent to search his automobile, and that there was no reasonable basis to search defendant's person. We will consider these issues seriatim.

II.

Initially, we find that the warrant improperly authorized the search of all vehicles present on the premises. A warrant providing for the search of persons or vehicles without a particularized description to distinguish its subjects from the general public violates both the New Jersey Constitution and the Fourth Amendment to its federal counterpart. State v. Sims, 75 N.J. 337, 345, 382 A.2d 638 (1978). In addition to a particularized description, both Constitutions require that there be probable cause to believe property described in the warrant will be found at the specified premises and in the possession of the identified suspect. Id. at 347, 382 A.2d 638.

The sufficiency of a warrant to search automobiles identified only by their presence at a specified place depends upon the facts. State v. De Simone, 60 N.J. 319, 321, 288 A.2d 849 (1972). There is none of the vice of a general warrant if the vehicle to be searched is identified by physical nexus to the ongoing criminal event and the circumstances disclose a reasonable probability it is in some way involved in the illicit endeavor. Id. at 322, 288 A.2d 849. So long as there is good reason to suspect or believe that an automobile present at the anticipated scene will be part of the criminal scheme, presence may properly be considered the descriptive fact satisfying the Fourth Amendment. Ibid.

We stress that "mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause" to search a person or automobile. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238, 245 (1979). A search or seizure must be supported by probable cause "particularized" with respect to that individual or vehicle. Ibid. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person or car may happen to be. Ibid.

Two critical variables are the place to be searched and the nature of the criminal activity which is the subject of the investigation. Simple entry into a public area such as a store or gasoline station, without more, does not provide probable cause to suspect a person of illegal activity. State v. Sims, 75 N.J. at 350, 382 A.2d 638. Presence in a public place is not necessarily indicative of criminal confederacy. Ibid. In a different context, we have held that a warrant to search premises used for the continuing retail sale of controlled dangerous substances may authorize the search of all persons present "if the search is conducted at a time when sales ordinarily take place, if the premises are not of a sort likely to be also frequented by the public for lawful purposes, and if, as a result, a person who is in the premises when the police enter or arrives there during the search is likely to be a party to the unlawful activity." State in the Interest of L.Q., 236 N.J.Super. 464, 472, 566 A.2d 223 (App.Div.1989), certif. den. 122 N.J. 121, 584 A.2d 199 (1990).

The warrant here and the resulting search satisfy none of these criteria. It is undisputed that defendant's automobile was parked in a public area near the front entrance to the convenience store. There was no affirmation that sales took place in this area or in the store itself. Both the gasoline station and convenience store were open for business when the warrant was executed. Those parking their vehicles in the area reserved for that purpose cannot fairly or reasonably be tainted by the illegal activities which, according to the affidavit, took place in Harris' second-floor bedroom to the rear of the store. Mere presence in the front parking lot during daytime, business hours was not in any way suggestive of criminal involvement. Nothing in the affidavit or in the circumstances surrounding execution of the warrant disclosed a likelihood of criminal confederacy.

While we traditionally afford deference to the issuance of search warrants, see State v. Sheehan, 217 N.J.Super. 20, 524 A.2d 1265 (App.Div.1987), we are convinced that the warrant in this case conferred unbridled discretion upon the executing police officers to search individuals innocently at the scene. The warrant provided the police with unlimited authority to search vehicles that happened to be present. We conclude that the warrant was overly broad and did not satisfy constitutional requirements.

III.

We also find that the State failed to establish the voluntariness of defendant's consent to search. It is well settled that a valid consent to search must be "clear, knowing, voluntary, unequivocal, and express." State v. Sugar, 100 N.J. 214, 234, 495 A.2d 90 (1985). Under our Constitution, where the State seeks to justify a search on the basis of consent, "it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent." State v. Johnson, 68 N.J. 349, 354, 346 A.2d 66 (1975).

Against this backdrop, we conclude that the circumstances surrounding defendant's consent to search were inherently coercive. The overriding fact is that...