STATE OF NEW JERSEY VS. SEAN P. MCARDLE (13-07-1338, MONMOUTH COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4485-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEAN P. MCARDLE,
Defendant-Appellant.
__________________________
Argued September 17, 2018 – Decided August 29, 2019
Before Judges Messano and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 13-07-
1338.
Elyse S. Schindel argued the cause for appellant
(Kalavruzos Mumola Hartman & Lento, LLC,
attorneys; Edward C. Bertucio, Jr., of counsel and on
the brief; Elyse S. Schindel, on the briefs).
Ian David Brater, Assistant Prosecutor, argued the
cause for respondent (Christopher J. Gramiccioni,
Monmouth County Prosecutor, attorney; Ian David
Brater, of counsel and on the brief).
PER CURIAM
Following the denial of his motions to suppress evidence seized from his
car and home, to exclude his post-arrest confession to police, to disclose the
identity of a confidential informant (CI), and to reconsider the denial of the
respective motions, defendant Sean McArdle entered an unconditional
negotiated guilty plea to count three of an eight-count indictment charging him
with first-degree possession of a controlled dangerous substance (CDS) with
intent to distribute, N.J.S.A. 2C:35-5(b)(10)(a).1 On June 9, 2017, in accordance
with the plea agreement, he was sentenced to a flat seven-year term of
imprisonment, and the remaining charges in the indictment were dismissed.2
The charges stemmed from a CI's tip that defendant was a "bulk-level distributor
of marijuana" who used large duffel bags to transport marijuana to distribution
locations. As a result, law enforcement officers conducted a motor vehicle stop
1
Defendant pled guilty the day after his trial began.
2
The remaining charges consisted of two counts of fourth-degree possession of
CDS, N.J.S.A. 2C:35-10(a)(3); two counts of third-degree possession of CDS
with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35 -7;
first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-
5(b)(10)(a); fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-
3(d); and first-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-
25.
A-4485-16T1
2
after observing defendant place two large duffel bags in his van. Defendant was
arrested when the officers detected the odor of raw marijuana emanating from
the van, and consented to a search of his van and home, leading to the seizure
of the marijuana and other evidence that formed the evidential basis for the
charges.
On appeal, defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT ERRONEOUSLY DENIED
[DEFENDANT'S] MOTION TO SUPPRESS
EVIDENCE SEIZED WITHOUT A WARRANT AND
RELATED MOTION TO CONFIRM AND REVEAL
THE IDENTITY OF THE [CI] AND THE
APPELLATE DIVISION SHOULD REVERSE THE
TRIAL COURT'S DECISION AND SUPPRESS THE
PHYSICAL EVIDENCE IN THIS CASE.
POINT II
THE TRIAL COURT ERRONEOUSLY DENIED
[DEFENDANT'S] MOTION FOR
RECONSIDERATION AFTER THE DEFENSE
RECEIVED CRITICAL INFORMATION IN THE
FORM OF A TRANSCRIPT OF THE TELEPHONE
CALL BETWEEN [DEFENDANT] AND THE CI ON
THE DATE OF [DEFENDANT'S] ARREST.
We reject these contentions and affirm.
I.
A-4485-16T1
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Preliminarily, we agree with the State that, other than the denial of his
suppression motion, when defendant entered an unconditional guilty plea, he
waived his right to appeal any other adverse determination, including his motion
to compel the State to disclose the CI's identity, and his motion for
reconsideration of that decision. "[T]he failure to enter a conditional plea under
Rule 3:9-3(f) generally bars appellate review of non-Fourth Amendment
constitutional issues." State v. J.M., 182 N.J. 402, 410 (2005). "Our rules
provide for three exceptions to the general rule of waiver[,]" none of which
apply to the other adverse decisions defendant now seeks to challenge on appeal.
State v. Knight, 183 N.J. 449, 471 (2005). See State v. Robinson, 224 N.J.
Super. 495, 498-99 (App. Div. 1988) (explaining that under the rules,
notwithstanding a guilty plea, a defendant may appeal "from the denial of his
motion to suppress as permitted by [Rule] 3:5-7(d), from the denial of admission
into pretrial intervention pursuant to [Rule] 3:28(g), and, with consent of the
court and approval of the prosecutor, from any other pre-trial order when the
issue is preserved, [Rule] 3:9-3(f)").
Neither is this one of those "limited situations where it would result in an
injustice to strictly adhere to the requirements of the rule[.]" J.M., 182 N.J. at
402, 410 (citing State v. Gonzalez, 254 N.J. Super. 300, 304 (App. Div. 1992)).
A-4485-16T1
4
Thus, because defendant failed to preserve his right to appeal any other pre-trial
orders, only his challenge to the legality of the search and seizure of evidence
"automatically survive[s] the entry of a guilty plea" and is properly before us.
State v. Greeley, 178 N.J. 38, 50-51 (2003).
During the suppression hearing, conducted over the course of three non-
consecutive days, the State presented Monmouth County Prosecutor's Office
Detective Jose Goncalves as its sole witness. Goncalves, who had been involved
in "[h]undreds" of narcotics investigations during his law enforcement career,
testified that on March 11, 2013, while he was on assignment at the New Jersey
field office of the United States Drug Enforcement Agency (DEA), Special
Agent Terrance Dunlap of the DEA's New York field office contacted his office.
Dunlap advised a superior officer that defendant was a suspected "bulk-level
distributor of marijuana." According to Dunlap, a CI with whom he had worked
with in the past had provided information that defendant was transporting
marijuana to distribution locations in "large[-]size duffel bags, almost like
hockey[-]size duffel bags." Dunlap stated that based on the CI's tip, DEA agents
had conducted surveillance of defendant and had observed him making
exchanges with high-level marijuana traffickers who were the targets of a drug
investigation in New York. Additionally, Dunlap had personally conducted an
A-4485-16T1
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"overhear" of a March 13, 2013 telephone conversation between defendant and
the CI, during which the CI arranged to purchase marijuana from defendant the
following day, March 14, 2013.
After receiving this information, on the day of the pre-arranged sale, a
task force, comprised of officers from the DEA, the Monmouth County
Prosecutor's Office, and the Middletown Police Department, "conducted
surveillance" of defendant's home, located in Port Monmouth. At approximately
7:00 a.m. on March 14, the task force stationed undercover vehicles outside
defendant's home and conducted aerial surveillance from a helicopter. While
under surveillance, after loading two "large[-]size weighted duffel bag[s]" from
his garage into a black Sierra pick-up truck parked in his driveway, defendant
went back inside his house. Approximately thirty minutes later, defendant came
back outside, transferred the duffel bags from the pick-up truck to a red Dodge
van in his driveway, and returned to his house. A few minutes later, defendant
came outside a third time and drove away in the red Dodge van.
While task force officers followed him, defendant drove a "very short
distance" from his home, stopped to scan the area by "looking around aimlessly
in many different directions[,]" and then continued driving. After defendant
resumed driving, Goncalves directed Middletown Corporal Gerald Weimer, who
A-4485-16T1
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was in uniform and driving a marked police car, to conduct a motor vehicle stop
of defendant's van. At approximately 11:17 a.m., Weimer pulled defendant
over, asked him for his driving credentials, and instructed him to exit the van.
When Goncalves arrived at the scene, he immediately detected "[a] very strong
odor of marijuana" "emanating from [defendant's] van." Goncalves approached
defendant and informed him that he was stopped because law enforcement had
received information that he was "involved in criminal activity[,]" and had
observed defendant moving "two large duffel[-]size bags" between vehicles at
his home. As Goncalves spoke to defendant, he "could also smell marijuana"
on him. 3
Thereafter, Goncalves advised defendant of his Miranda4 rights by reading
"a Miranda warning waiver card" to defendant, who "waived his rights" and
agreed to talk to the officers. Defendant also read and signed "a consent to
search form" after Goncalves reviewed it with him. Goncalves read the consent
form to defendant aloud, informing him of his right "to refuse to allow police to
conduct the search," to "revoke [his] consent to search at any time," to "stop the
3
At Goncalves' request, a K-9 unit responded to the scene to assist with the
investigation, but the result of the unit's involvement was not revealed during
the hearing.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
A-4485-16T1
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search at any time[,]" and "to be present while the search [was] conducted."
Defendant initialed next to each of these rights, and next to the section indicating
that he had "given []his permission voluntarily of [his] own free will without
coercion, fear, or threat." The consent form, which was executed approximately
forty minutes after the motor vehicle stop, specifically authorized the search of
defendant's residence, the red Dodge van, and the black Sierra pick-up truck.
In the ensuing search, inside the two large duffel bags in the red Dodge
van, the officers found "bulk marijuana . . . wrapped in clear plastic." At his
home, defendant, who was neither restrained nor handcuffed, led the officers to
the basement where they found "bulk marijuana," "hashish," "a large amount of
U.S. currency," drug "paraphernalia," "three weapons[,]" and other contraband.
In the basement, defendant showed the officers "a wall shelf with a lever," which
opened up a part of a bookshelf, revealing a hidden compartment where officers
found "numerous duffel bags," "bins," and other containers filled with marijuana
and hashish. The officers also recovered a handgun and a shotgun from the
hidden compartment. Additionally, the officers found a safe inside the hidden
compartment, which they opened after defendant gave them the code, and found
cash and a Derringer handgun with a defaced serial number inside. In another
area of the basement, the officers found another safe with cash inside.
A-4485-16T1
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In total, the officers seized approximately 394 pounds of marijuana and
over $762,000 in cash from defendant's basement. After the search, defendant
was transported to Middletown police headquarters, and again advised of his
Miranda rights. Defendant waived his rights and gave a video recorded
statement to police in which he acknowledged consenting, knowingly and
voluntarily, to the search of his home and vehicles, he admitted owning and
possessing all the evidence seized, and he admitted operating a narcotics
distribution business.
Following the hearing, on April 27, 2015, the motion judge denied
defendant's suppression motion. In a comprehensive and reasoned written
opinion, the judge found Goncalves to be a credible witness based on his
"demeanor." According to the judge, "[Goncalves] was honest and very
straightforward throughout his testimony[,]" which was "clear, candid , and
convincing." As a result, the judge made detailed factual findings consistent
with Goncalves' account. The judge also recounted at length the governing
principles and applicable case law, ultimately concluding that the motor vehicle
stop and subsequent consent search were lawful.
Beginning with the motor vehicle stop, the judge found that "Dunlap . . .
provided New Jersey authorities with particularized information about
A-4485-16T1
9
[d]efendant, which included his name, address, [and] physical description," as
well as the fact that "defendant was observed meeting with high-level bulk
marijuana traffickers and would transport marijuana in large duffle bags." The
judge described the information received from Dunlap as "very specific" and
determined that "the level of detail" provided to Dunlap by the CI, including
"[d]efendant's home address, physical description, [and] types of bags . . .
carried," as well as "the prior meetings that [the CI] had with [d]efendant,"
demonstrated that the CI had "a reliable 'basis of knowledge.'" 5 Additionally,
the judge determined that the CI's information was "subsequently corroborated
5
The judge also rejected defendant's argument that the overhear evidence
provided by Dunlap of the CI's conversation arranging the March 14, 2013
purchase of marijuana from defendant violated the New Jersey Wiretapping and
Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-1 to -137.
The judge reasoned that Dunlap obtained the evidence "acting 'in the exercise
of federal jurisdictional power, pursuant to federal authority[,] and in
accordance with federal standards[,]'" see State v. Mollica, 114 N.J. 329, 350
(1989), and "gathered [the] evidence . . . in compliance with the consensual
interception provision pursuant to [18 U.S.C. § 2511(c)]." According to the
judge, "[a]s such, Agent Dunlap was not subject to the Wiretap Act." See State
v. Minter, 116 N.J. 269, 281 (1989) (holding New Jersey Wiretap Act "does not
specifically regulate wiretaps . . . by federal law enforcement officials because
the provisions requiring law enforcement officers to obtain prior approval . . .
apply only to state officials"). As previously discussed, because defendant
entered an unconditional guilty plea, his claims that Dunlap's "overhear" of his
conversation with the CI violated the Wiretap Act are not properly before us and
will not be considered. Rule 3:5-7(d) does not automatically preserve the right
to appeal from "an adverse pre[-]trial ruling on a statutory violation of the
[Wiretap Act]." State v. Keegan, 188 N.J. Super. 471, 475 (App. Div. 1983).
A-4485-16T1
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by the observations made by the Task Force through surveillance" of defendant.
The judge found that drawing "on his years of experience and participation in
more than 100 narcotics investigations," Goncalves determined that defendant's
"conduct was consistent with illegal activity[,]" thereby giving rise to "a
reasonable . . . and articulable suspicion" to justify stopping defendant's vehicle.
According to the judge, after conducting the investigatory stop, the
"overwhelming odor of marijuana emanating from . . . [d]efendant and . . . [his]
van" "gave rise to a well-grounded suspicion that [d]efendant committed the
criminal offense of possessing a large quantity of marijuana" and that
"additional contraband may [have been] present." As a result, the judge
determined that because there was "probable cause to arrest . . . [d]efendant,"
prolonging defendant's detention to continue the investigation by securing
defendant's consent to search was justified.
Turning to the ensuing consent search, after applying the factors
articulated in State v. King, 44 N.J. 346, 352-53 (1965), the judge concluded
defendant knowingly and voluntarily consented to the search of his vehicles and
home, leading to the lawful seizure of the evidence. The judge explained:
In addition to the documentation of [d]efendant's
valid consent by way of executed form and video
recording, the totality of the circumstances established
[d]efendant's consent was voluntary. Defendant was
A-4485-16T1
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not handcuffed or under arrest at the time he consented.
His consent was not preceded by a refusal to consent.
He did not deny his guilt before providing consent.
Defendant also cooperated by affirmatively assisting
law enforcement authorities with the search of his
residence. As such, it is evident that [d]efendant's
consent was knowing and voluntary, and the consent
was valid.
Thereafter, defendant moved for reconsideration of the denial of the
suppression motion, asserting that "new evidence ha[d] come to light."
Specifically, defendant presented the transcript of the conversation between
defendant and the CI, which he had obtained through discovery in defendant's
related case in New York. Claiming that he had identified the CI as "Fritz,"
defendant argued that the State should confirm the CI's identity so he could "call
'Fritz' as a witness in a re-opened [suppression m]otion."
On May 24, 2016, in a written decision, the judge determined defendant's
motion was untimely because it was "filed . . . far more than [twenty] days after"
the entry of the order denying the suppression motion. The judge also rejected
the motion on the merits. In that regard, the judge recounted that he had
previously "granted [defendant's] motion and ordered the State to confirm or
reveal the identity of the [CI]." However, "[t]he Appellate Division granted the
State's motion [to file an interlocutory appeal] and the trial court's decision was
A-4485-16T1
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reversed." See State v. McArdle, No. A-2029-13 (App. Div. June 5, 2014).6
The judge pointed out that "[e]ach of [defendant's] arguments revisit[ed] those
previously argued before the trial court and the Appellate Division." The judge
noted that "[t]he Appellate Division's decision clearly state[d] that the State did
not [need to] disclose the [CI's] identity and that it was not in the interest of
justice to force the State to confirm defendant's belief that the informant was
'Fritz.'" Thus, the judge concluded "there [was] no new evidence . . . that would
require reconsideration of . . . defendant's motion to suppress evidence." The
judge entered a memorializing order and this appeal followed.
II.
Our review of the trial court's decision on a motion to suppress is limited.
State v. Robinson, 200 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
6
In reversing the trial court, we explained that "defendant's claim to already
know the identity of the CI" did "not justify disclosure" in the absence of "a
purposeful waiver [of the Rule 516 privilege] on the State's part." McArdle, slip
op. at 11-12; N.J.R.E. 516. We also determined defendant failed to make "any
showing, much less 'a strong showing' of need for the CI's identity" given the
CI's "marginal and tangential role in connection with the search of defendant's
car and home" as well as the fact that "defendant was not charged with any
offense arising from the CI's limited engagement." Id. at 13 (quoting State v.
Milligan, 71 N.J. 373, 387 (1976)).
A-4485-16T1
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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)). "The governing
principle, then, is that '[a] trial court's findings should be disturbed only if they
are so clearly mistaken that the interests of justice demand intervention and
correction.'" Robinson, 200 N.J. at 15 (alteration in original) (quoting State v.
Elders, 192 N.J. 224, 244 (2007)). "We owe no deference, however, to
conclusions of law made by trial courts in deciding suppression motions, which
we instead review de novo." State v. Brown, 456 N.J. Super. 352, 358-59 (App.
Div. 2018) (citing State v. Watts, 223 N.J. 503, 516 (2015)).
Applying a de novo standard of review, "[w]e review this appeal in
accordance with familiar principles of constitutional law." State v. Robinson,
228 N.J. 529, 543 (2017). "Both the United States Constitution and the New
Jersey Constitution guarantee an individual's right to be secure against
unreasonable searches or seizures." State v. Minitee, 210 N.J. 307, 318 (2012).
Searches and seizures conducted without a warrant, "particularly in a home, are
A-4485-16T1
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presumptively unreasonable" and "must be subjected to particularly careful
scrutiny." State v. Edmonds, 211 N.J. 117, 129 (2012) (quoting State v. Bolte,
115 N.J. 579, 583, 585 (1989)). As such, "[t]he State bears the burden of proving
by a preponderance of the evidence," id. at 128, that such searches and seizures
are justified by a "'well-delineated exception[]' to the warrant requirement."
State v. Shaw, 213 N.J. 398, 409 (2012) (quoting State v. Frankel, 179 N.J. 586,
598 (2004)).
Under one such exception, law enforcement officers may lawfully stop a
motor vehicle and detain the occupants on less than probable cause in order to
investigate suspicious conduct. State v. Stovall, 170 N.J. 346, 356 (2002). Such
an "investigatory stop" is permissible "if, based on the totality of the
circumstances, the officer had a reasonable and particularized suspicion to
believe that an individual has just engaged in, or was about to engage in,
criminal activity." Ibid.; see also State v. Carty, 170 N.J. 632, 639-40 (2002).
The State bears the burden of demonstrating, by a preponderance of the
evidence, that it possessed sufficient information to give rise to the requi site
level of suspicion. State v. Pineiro, 181 N.J. 13, 19-20 (2004).
Whether reasonable and particularized suspicion exists is a fact-sensitive
inquiry, and courts should consider the "totality of circumstances surrounding
A-4485-16T1
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the police-citizen encounter." State v. Coles, 218 N.J. 322, 343 (2014) (quoting
State v. Privott, 203 N.J. 16, 25 (2010)); see also State v. Mann, 203 N.J. 328,
338 (2010); State v. Nishina, 175 N.J. 502, 516-17 (2003). The officer's
experience and knowledge, as well as the facts available to the officer at the
time of the encounter, are circumstances relevant to the court's determination.
See Pineiro, 181 N.J. at 22. Likewise, courts are required to give weight to the
"rational inferences that could be drawn from the facts objectively and
reasonably viewed in light of the officer's expertise." State v. Citarella, 154 N.J.
272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)).
However, "inarticulate hunches" and "subjective good faith" are
insufficient to justify a warrantless search and seizure. State v. Maryland, 167
N.J. 471, 487 (2001) (quoting Arthur, 149 N.J. at 8). "Rather, the officer 'must
be able to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant [the] intrusion.'" Ibid.
(alteration in original) (quoting Arthur, 149 N.J. at 8). "Facts that might seem
innocent when viewed in isolation can sustain a finding of reasonable suspicion
when considered in the aggregate, so long as the officer maintains an objectively
reasonable belief that the collective circumstances are consistent with criminal
conduct." Nishina, 175 N.J. at 511.
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"In the event that known facts are not the result of an officer's
observations, the court[] must assess the reliability of the source of information
to ascertain whether reasonable suspicion exists." Byrnes, N.J. Arrest, Search
& Seizure, § 14:2-1 (2018-2019). Thus, when officers conduct an investigatory
stop based on a CI's tip, the court must assess the tip's reliability under the
totality of the circumstances. State v. Smith, 155 N.J. 83, 93 (1998). If the court
finds the tip was reliable, it may give rise to reasonable suspicion sufficient to
justify the stop. See State v. Birkenmeier, 185 N.J. 552, 561-62 (2006). In
evaluating the reliability of a tip, a CI's "'veracity' and 'basis of knowledge' are
two highly relevant factors under the totality of the circumstances." State v.
Zutic, 155 N.J. 103, 110 (1998) (quoting Smith, 155 N.J. at 93). Neither factor,
in and of itself, is indispensable to a finding of reliability, and "a strong
showing" in one of the factors, or "some other indicia of reliability[,]" may
compensate for "[a] deficiency" in the other. Id. at 110-11 (quoting Illinois v.
Gates, 462 U.S. 213, 233 (1983)).
"An informant's veracity may be established in a variety of ways." Id. at
111. For instance, a CI's "past reliability will contribute to the informant's
veracity." Ibid. If, on the other hand, an "informant does not identify the basis
of [his or her] knowledge," the court may infer "a reliable basis of knowledge"
A-4485-16T1
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from "the level of detail and amount of hard-to-know information disclosed in
the tip." Ibid. "[T]he nature and details revealed in the tip may imply that the
informant's knowledge of the alleged criminal activity is derived from a
trustworthy source." Smith, 155 N.J. at 94. A court can also infer knowledge
from the informant's prediction of "hard-to-know future events[,]" id. at 95, and
"independent corroboration of hard-to-know detail in the informant's tip may
. . . greatly bolster the tip's reliability." Zutic, 155 N.J. at 111.
Here, the judge determined the CI had a reliable basis of knowledge based
on the level of detail in the CI's tip. Further, through their surveillance of
defendant, as well as Dunlap's observation of defendant making exchanges with
high-level marijuana traffickers in New York, the task force officers were able
to confirm and corroborate details indicating that the CI's knowledge came from
a trustworthy source. Under these circumstances, the judge's determination that
there was reasonable articulable suspicion to justify the motor vehicle stop is
amply supported by the record, and the judge's legal conclusion is unassailable.
Further, the judge's conclusion that the strong odor of marijuana emanating from
defendant and his van during the lawful investigatory stop provided probable
cause to arrest is equally sound. See State v. Walker, 213 N.J. 281, 290 (2013)
(holding that the smell of marijuana "constitutes probable cause 'that a criminal
A-4485-16T1
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offense ha[s] been committed and that additional contraband might be present'"
(alteration in original) (quoting Nishina, 175 N.J. at 515-16)); State v. Myers,
442 N.J. Super. 287, 297-304 (App. Div. 2015) (holding that officers smelling
the odor of marijuana emanating from the defendant's car gave officer probable
cause to justify his arrest).
Defendant argues that because Dunlap did not testify at the hearing, as the
State had previously represented during its interlocutory appeal of the trial court
order compelling the release of the CI's identity, the information provided to
Goncalves was not reliable because it was hearsay. However, "[h]earsay may
constitute probative evidence . . . 'so long as a substantial basis for crediting the
hearsay is presented[,]'" as occurred here. Zutic, 155 N.J. at 110 (quoting State
v. Novembrino, 105 N.J. 95, 111 (1987)). Coming from a fellow officer,
Dunlap's information regarding his "overhear" of the phone conversation
between defendant and the CI setting up the March 14, 2013 sale was
presumptively reliable. See State v. Infante, 116 N.J. Super. 252, 254 (App.
Div. 1971) (explaining that when an officer conducts an "overhear" of a
telephone call and hears both ends of the call, the content of the call is "within
the detective's personal knowledge and not the result of information conveyed
to him"). Equally reliable was Dunlap's observations of defendant meeting and
A-4485-16T1
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making exchanges with suspected drug traffickers in New York. See United
States v. Ventresca, 380 U.S. 102, 111 (1965) ("Observations of fellow officers
of the Government engaged in a common investigation are plainly a reliable
basis for a warrant applied for by one of their number.").
Defendant also argues that the officer's stop of his vehicle was unlawful
because he did not observe defendant commit any motor vehicle violations.
While reasonable and articulable suspicion that a driver has committed a motor
vehicle infraction is sufficient to justify a stop, State v. Locurto, 157 N.J. 463,
470 (1999), it is not the only justification. Here, the CI's tip and the subsequent
corroborating investigation provided ample reasonable suspicion to justify the
stop of defendant's vehicle, independent of any motor vehicle violation, or lack
thereof.
The other "'long-recognized' exception to the warrant requirement"
implicated in this appeal is the consent search. State v. Hagans, 233 N.J. 30, 39
(2018) (quoting State v. Coles, 218 N.J. 322, 337 (2014)). In order to be valid,
consent must be voluntary, which is "a factual question to be determined from
the relevant circumstances." State v. Koedatich, 112 N.J. 225, 264 (1988). The
State bears the burden of proving "that the individual giving consent knew that
he or she 'had a choice in the matter.'" Hagans, 233 N.J. at 39 (quoting Carty,
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170 N.J. at 639). Specifically, "one required element of proof is that the
consenting party must know that he has the right to decline consent."
Birkenmeier, 185 N.J. at 564 (citing State v. Johnson, 68 N.J. 349, 354 (1975)).
Thus, "[t]he lynchpin to voluntary consent 'is whether a person has knowingly
waived [his or her] right to refuse consent to the search.'" Hagans, 233 N.J. at
39 (quoting State v. Domicz, 188 N.J. 285, 308 (2006)). In that regard, our
Supreme Court has provided "guideposts to aid a trial judge" in evaluating
whether consent was voluntary. King, 44 N.J. at 353.
According to the Court, factors that indicate coerced consent include: (1)
the consenting individual was under arrest; (2) the individual consented despite
a denial of guilt; (3) the individual refused initial requests for consent; (4) "the
subsequent search resulted in a seizure of contraband" that the consenting
individual "must have known would be discovered"; and (5) the accused gave
consent while in handcuffs. Id. at 352-53. Factors that tend to indicate voluntary
consent include: (1) the consenting individual "had reason to believe the police
would find no contraband"; (2) the consenting individual admitted guilt before
consenting to the search; and (3) the consenting individual affirmatively assisted
the investigating officers. Id. at 353.
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A consent search following a lawful motor vehicle stop is valid when the
officer seeking consent to search has a "reasonable and articulable suspicion to
believe that [the defendant] has engaged in, or is about to engage in, criminal
activity." Birkenmeier, 185 N.J. at 564 (alteration in original) (quoting Carty,
170 N.J. at 647). "[U]nless there is a reasonable and articulable basis beyond
the initial valid motor vehicle stop to continue the detention after completion of
the valid traffic stop, any further detention to effectuate a consent search is
unconstitutional." Carty, 170 N.J. at 647. The requirement of reasonable and
articulable suspicion "serves to validate the continued detention associated with
the search." Birkenmeier, 185 N.J. at 564.
Here, after reviewing the executed consent form and defendant's video
recorded statement, the judge determined defendant voluntarily consented to the
search of his home and vehicles. The judge's decision is amply supported by the
record, and his legal conclusion is sound. Further, as in Birkenmeier, "by the
time the police asked defendant for his consent to search, the police not only
had a reasonable and articulable suspicion of wrongdoing, but that suspicion had
blossomed into probable cause[,]" ibid., which is a higher standard than
reasonable suspicion. Stovall, 170 N.J. at 356. Here, when Goncalves requested
defendant's consent, there was probable cause to believe defendant had engaged
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in criminal activity based on the strong odor of marijuana emanating from
defendant and his van.
Finally, defendant argues the court "erroneously denied [his] motion for
reconsideration." We disagree. Under Rule 4:49-2, a court "may reconsider
final judgments or orders within twenty days of entry." Lee v. Brown, 232 N.J.
114, 126 (2018). Although Rule 4:49-2 does not expressly apply to criminal
practice, courts have nevertheless applied its standards to motions for
reconsideration in criminal actions. See State v. Wilson, 442 N.J. Super. 224,
233 n.3 (App. Div. 2015), rev'd on other grounds, 227 N.J. 534 (2017); see also
State v. Puryear, 441 N.J. Super. 280, 294-95 (App. Div. 2015) (applying Rule
4:49-2 and Rule 1:7-4(b) to a trial court's decision to grant reconsideration on
its earlier decision on a motion to suppress).
Reconsideration is "a matter within the sound discretion of the [c]ourt ,"
Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria
v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)), and will not be set aside
unless the trial court abused its discretion. Granata v. Broderick, 446 N.J. Super.
449, 468 (App. Div. 2016), aff'd, 231 N.J. 135 (2017). A court abuses its
discretion "when a decision is 'made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis.'" Pitney
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Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App.
Div. 2015) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
"[G]rounds for reconsideration are generally limited[,]" as "[t]he proper
object of reconsideration is to correct a court's error or oversight." Puryear, 441
N.J. Super. at 294; see also Palombi v. Palombi, 414 N.J. Super. 274, 288 (App.
Div. 2010). Further, reconsideration "is designed to seek review of an order
based on the evidence before the court on the initial motion, [Rule] 1:7-4, not to
serve as a vehicle to introduce new evidence in order to cure an inadequacy in
the motion record." Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J.
Super. 299, 310 (App. Div. 2008). Additionally, reconsideration is "not
appropriate merely because a litigant is dissatisfied with a decision of the court
or wishes to reargue a motion[.]" Palombi, 414 N.J. Super. at 288. Rather, courts
should grant reconsideration motions only when either: "(1) the [c]ourt has
expressed its decision based upon a palpably incorrect or irrational basis, or (2)
it is obvious that the [c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence." Fusco v. Bd. of Educ. of City
of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria, 242
N.J. Super. at 401); see also R. 4:49-2.
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Here, the judge correctly denied defendant's motion for reconsideration
because it was untimely, because defendant simply sought to reargue an issue
previously decided in the trial court and on appeal, and because defendant was
merely dissatisfied with the outcome. We discern no abuse of discretion in the
judge's determination warranting our intervention because defendant relied on
inappropriate bases for reconsideration. To the extent we have not addressed a
particular argument, it is because either our disposition makes it unnecessary or
the argument was without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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