STATE OF NEW JERSEY VS. ANDREW BENJAMIN (14-08-0960, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2123-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDREW BENJAMIN,
Defendant-Appellant.
_______________________
Submitted October 28, 2019 – Decided December 11, 2019
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 14-08-
0960.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alison Stanton Perrone, Assistant Deputy
Public Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
After the trial court denied defendant Andrew Benjamin's motion to
suppress evidence seized from his vehicle after a routine traffic stop, he
conditionally pled guilty to one count of second-degree unlawful possession of
a weapon, contrary to N.J.S.A. 2C:39-5(b), and was sentenced in accordance
with the plea agreement. On appeal, defendant raises the following issues for
our consideration:
POINT I
[DEFENDANT]'S CONSENT TO SEARCH THE CAR
WAS NOT VOLUNTARILY GIVEN.
A. Legal Framework
B. Under State v. King And The Totality Of The
Circumstances, [Defendant] Did Not Voluntarily
Consent To The Search Of His Car.
C. This Court Should Expand the Requirements of
King and Johnson To Guide Lower Courts and Law
Enforcement In Ensuring That Consent Is Truly
Voluntarily, Intelligently, and Knowingly Obtained.
1. Law Enforcement Should Be Required To
Scrupulously Honor An Individual's Invocation Of His
Or Her Right Not To Be Subject to A Warrantless
Search Or Seizure.
2. To Ensure That Consent Is Knowing And Intelligent,
This Court Should Require Law Enforcement To
Advise Individuals That Their Decision Not To
Consent Must Be Respected And That Anything Found
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As A Result Of The Search May Not Be Used Against
Them In A Criminal Prosecution.
3. To Further Ensure That Consent Is Knowing And
Intelligent, This Court Should Require Law
Enforcement To Advise Individuals As To Whether Or
Not They Are Free To Leave After Refusing Consent.
Having reviewed defendant's arguments in light of the record and
applicable law, we affirm.
I.
The following facts are gleaned from the testimony of Officer Peter
Magnani of the South Plainfield Police Department (SPPD) at the suppression
hearing, as well as the Mobile Video Recorder (MVR) footage captured during
the search, both of which the trial court relied upon when rendering its June 21,
2016 written opinion and order denying defendant's motion to suppress.
According to Magnani, on April 29, 2014, shortly before 3:00 a.m., he
was on patrol in a marked police vehicle and driving behind a gold Honda
Accord in South Plainfield. Magnani testified that he observed the vehicle make
a left turn, cross over the double yellow lines, and then make "a very wide right
into [a] hotel parking lot." As soon as the vehicle was parked, Magnani
conducted a motor vehicle stop.
A-2123-17T3
3
Magnani approached the driver's side to speak to defendant. Two
passengers, later identified as Khalil Huggins and Dora Miller, were also in the
car. Instead of lowering his window, according to Magnani, defendant "cracked
his door a little bit to hand [Magnani] the insurance card." 1 Defendant, however,
failed to produce his driver's license and vehicle registration , claiming he did
not have them. Magnani also stated that defendant failed to search for the
vehicle registration in the glove compartment or elsewhere in the vehicle, which
he described as suspicious. Defendant instead provided Magnani with his name,
birthday, and Social Security number. Magnani also testified that before he
returned to his patrol car, he smelled marijuana through the cracked door of the
vehicle.
Magnani transmitted the information defendant provided to an individual
at dispatch who confirmed that defendant had a valid provisional New Jersey
license. Within minutes, another officer arrived to provide backup. Magnani
later approached the passenger side of the vehicle and Miller lowered the
window to hand him the vehicle's registration. At this point, with the window
open, Magnani detected "a very strong odor of raw marijuana" and immediately
1
In its June 21, 2016 written decision, the court noted that contrary to Magnani's
testimony, the MVR footage demonstrated "that the driver's door appear[ed] to
swing completely open at that time."
A-2123-17T3
4
asked defendant, Huggins, and Miller to exit and move toward the back of the
vehicle.
Magnani then completed a motor vehicle consent to search form which he
read to defendant. The consent form stated in pertinent part that:
I, [defendant], . . . having been informed of my
constitutional rights, first, that I may require that a
search warrant be obtained prior to any search being
made; second, that I may refuse the consent to any
search; third, that anything which may be found as a
result of this search which is subject to seizure can and
will be seized and may be used against me in a criminal
prosecution; fourth, that I may require to be present
during the search; and fifth, that I may withdraw my
consent to search at any time. By consenting to this
search, I hereby authorize . . . Magnani . . . and any
other officer designated to assist to conduct a complete
search of the vehicle under my control . . . .
Defendant initially expressed reluctance to consent to a search and asked
Magnani "what happens if he . . . den[ies] consent." Magnani testified that he
informed defendant that he was permitted to deny consent, and that if he did so,
the officers would "probably end up towing the vehicle and . . . apply[ing] for a
search warrant" in order to search the vehicle at a later time.
Defendant then signed and dated the consent form which further provided
that defendant's "written permission [was] given . . . voluntarily and without
threats or promises of any kind being made to" him. Magnani stated that
A-2123-17T3
5
defendant was "eager to get it over with quickly" so he could "get into the hotel."
Magnani testified that defendant did not, however, waive his right to be present
for the search.
Magnani and another officer searched defendant, Huggins, and Miller
because they had a concern for their safety. According to Magnani, "[a]ny time
that we do a consent search or suspect something, criminal activity is happening,
we always search the subjects that are . . . in the vehicle prior . . . [to] turning
our backs on them to go in the vehicle." When the officers searched the vehicle,
they found a "wet wipes" container on the back seat which, according to
Magnani, "was pretty much completely full of marijuana . . . [in] individual
baggies" as well as "a small baggie with bullets in it" and a pair of scissors that
appeared to have hardened marijuana on the blades.
During the search, Miller asked Officer Sikanowicz to retrieve her cell
phone and other items from her purse. When doing so, Sikanowicz found a
marijuana pipe in the purse. The officers then searched the trunk and discovered
a white garbage bag, which Magnani nudged with his flashlight, revealing a
loaded revolver. The officers also found a skull cap and a "Bloods 2 manuscript
2
"The 'Bloods' is a criminal gang described by the New Jersey State Police as
a franchise with numerous smaller gangs taking the 'brand name' of the gang and
A-2123-17T3
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or Bible," which Magnani described, based on his training and experience, as a
"large manuscript that is given to new members of the gang" to memorize.
Finally, the officers discovered a baseball bat under the front passenger seat.
Once the handgun was discovered, the officers placed defendant, Huggins,
and Miller under arrest and transported them to "police headquarters for
processing and booking." As Magnani prepared to search defendant at
headquarters, defendant admitted that he had marijuana in his underwear where
Magnani retrieved a small bag of marijuana and empty baggies, characterized
by Magnani as "packaging materials."
Defendant was charged in a six-count indictment with second-degree
conspiracy, contrary to N.J.S.A. 2C:5-2 (count one); first-degree gang
criminality, contrary to N.J.S.A. 2C:33-29 (count two); fourth-degree
possession of marijuana, contrary to N.J.S.A. 2C:35-10(a)(3) (count three);
third-degree possession of marijuana with intent to distribute, contrary to
N.J.S.A. 2C:35-5(a)(1) (count four); second-degree unlawful possession of a
weapon, contrary to N.J.S.A. 2C:39-5(b) (count five); and second-degree
adopting the gang's symbols, ideology and terminology." State v. Dorsainvil,
435 N.J. Super. 449, 455 n.5 (App. Div. 2014).
A-2123-17T3
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possession of a weapon during the commission of a CDS offense, N.J.S.A.
2C:39-4.1(a) (count six). 3
Defendants filed a motion to suppress all of the evidence seized by the
officers in connection with the motor vehicle stop, asserting there was no initial
motor vehicle violation justifying a stop, and the police never validly obtained
consent to search the vehicle. As a result of the illegal stop, defendants
contended "all evidence obtained by the police . . . is either the 'poisonous tree'
itself or the 'fruit of the poisonous tree.'" 4
At the suppression hearing, the State presented testimony from Magnani,
as well as other evidence including the MVR. Defendants presented testimony
from Lieutenant Wayne Diana, a retired SPPD officer, Janak Upadhyay, a
manager at the hotel outside where the arrest occurred, Juan Tenreiro, an
investigator from the Office of the Public Defender, and documentary evidence.
3
Huggins was also charged with counts one through six, and Miller was
similarly charged, with the exception of the gang criminality offense in count
two. In a February 7, 2017 opinion and order, the court dismissed count two.
4
On appeal, defendant does not challenge the constitutionality of the initial stop
nor does he contend that the police did not have probable cause to search him
based on the smell of marijuana that Magnani detected emanating from the
vehicle.
A-2123-17T3
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Diana testified as to the standard operating procedures of the SPPD
relating to the usage of MVR and officers' body microphones, and also stated
that he was aware of a request to conduct a consent search on the night in
question. Upadhyay testified regarding the hotel's surveillance system.
Specifically, he stated that surveillance video footage is recycled after seven
days, and that he had released footage to SSPD upon request in the past. He
further testified that he did not remember whether the SPPD had requested the
footage from the night of the incident.
Finally, Tenreiro testified that approximately six months after the
incident, he photographed the scene of the arrest and visited the SPPD to review
the evidence. Tenreiro also described an experiment he conducted in which he
transferred the marijuana from the evidence bag into the container seized and
brought it to another room in the SPPD. Tenreiro stated that while the marijuana
smelled "very pungent" in the first room, he was unable to smell the marijuana
from inside the closed container in the second room.
On June 21, 2016, in a forty-five-page written opinion and corresponding
order, the court denied defendants' motion to suppress. In its written opinion,
the court characterized Magnani's testimony to be "credible[,] . . . candid[,] and
responsive." Further, the court concluded Magnani's "initial motor vehicle stop,
A-2123-17T3
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. . . approach of the vehicle, and . . . request . . . for the production of credentials
were all appropriate given the totality of the circumstances . . . ."
Moreover, the court determined Magnani searched defendant "as a result
of the probable cause established by the purported plain smell of raw marijuana."
The court noted, however, "clear inconsistencies" between Magnani's testimony
and the MVR footage.5 For example, the court stated that in the MVR footage,
the driver's door "appear[ed] to swing completely open" at the time Magnani
testified that it was "cracked."
The court nevertheless found Magnani's testimony to be "credible[,] and
attribute[d] the inconsistent testimony to the loss of memory that results from
the passage of time." Given the inconsistencies, however, the court "weigh[ed]
the MVR footage more heavily than . . . Magnani's sworn statements more than
one year after the incident." The court determined that both Magnani's
testimony and the MVR footage "support[ed] the contention that [Magnani]
experienced an overwhelming smell of marijuana . . . which prompted him to
demand that the [occupants] exit the vehicle," and that Magnani's search of
defendant was justified.
5
When making its factual findings, the court acknowledged that Magnani failed
to turn on the MVR prior to the initial traffic violation, and also did not power
on his body microphone for the first fifteen minutes of the encounter.
A-2123-17T3
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Finally, the court concluded "that Magnani obtained valid consent to
search the vehicle . . . from [d]efendant . . . ." Initially, the court noted that it
was "troubled by the ineffective use of the MVR . . . technology," such as the
failures by Magnani to memorialize the initial traffic violation on the recording
and power on his body microphone for the first fifteen minutes of the incident.
Considering the totality of the circumstances, however, the court determined
that defendant "gave a valid and [voluntary] consent to have his vehicle searched
by the officers" because he "asked questions regarding the scope of the search"
and possessed "a clear understanding of the circumstances." In doing so, the
court also found Magnani's statement that he would tow defendant's vehicle and
apply for a warrant to be "neither threatening nor coercive, but merely an
accurate description of future events."
As noted, defendant pled guilty to count five, second-degree unlawful
possession of a weapon. Consistent with the plea agreement, the court sentenced
defendant to a five-year term of incarceration with a forty-two-month period of
parole ineligibility, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), mandatory
fines and fees, and dismissed the remaining charges. This appeal followed.
II.
Defendant first argues that the court committed error in denying his
A-2123-17T3
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motion to suppress because his consent to search the vehicle was not voluntary.
Specifically, he maintains the court failed to analyze properly the factors
enumerated in State v. King, 44 N.J. 346 (1965), when it concluded that his
consent was voluntary under the totality of the circumstances. In this regard, he
argues that the court did not consider that defendant was "already arrested" when
he gave his consent, and that he "never affirmatively assisted the police
officers." Defendant similarly contends that the court failed to acknowledge
that defendant knew "that the search would result in the discovery of marijuana
and the firearm," which demonstrated his consent was coerced. He further
asserts that Magnani's refusal to accept his initial denial of consent rendered the
consent involuntary. Finally, defendant argues that Magnani's statement that he
would tow the vehicle and apply for a search warrant if defendant denied consent
was not "a fair prediction of events that would follow," State v. Cancel, 256 N.J.
Super. 430, 434 (App. Div. 1992), but rather, a "situation . . . instinct with
coercion," Bumper v. North Carolina, 391 U.S. 543, 550 (1968). We disagree.
Generally, "a guilty plea represents a break in the chain of events" and
prohibits a defendant from appealing any non-jurisdictional defects "that
occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S.
258, 267 (1973); see also State v. Taylor, 140 N.J. Super. 242, 244-45 (App.
A-2123-17T3
12
Div. 1976). The denial of a motion to suppress evidence, however, is an
exception to this rule and "may be reviewed on appeal from a judgment of
conviction notwithstanding that such judgment is entered following a [guilty
plea]." R. 3:5-7(d). Essentially, this rule only applies when the motion to
suppress is "based on the allegation of an unlawful search and seizure and not
on other grounds." Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R.
3:5-7(d) (2019) (citing State v. Greeley, 178 N.J. 38, 50-51 (2003)).
An appellate court reviewing a motion to suppress "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. Handy,
206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). "A
trial court's findings should be disturbed only if they are so clearly mistaken 'that
the interests of justice demand intervention and correction.'" Elders, 192 N.J. at
244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "Video-recorded
evidence is reviewed under the same standard." State v. Hagans, 233 N.J. 30,
38 (2018). The court's legal conclusions, however, are reviewed de novo and
not entitled to our deference. Handy, 206 N.J. at 45.
Individuals are protected from unreasonable searches and seizures under
the Fourth Amendment of the United States Constitution and Article I,
A-2123-17T3
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Paragraph 7 of the New Jersey Constitution. U.S. Const. amend. IV; N.J. Const.,
art. I, ¶ 7. While "[w]arrantless seizures and searches are presumptively invalid
as contrary to the United States and the New Jersey Constitutions," there are a
"few well-delineated exceptions to the warrant requirement," including validly
obtained consent to search. State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting
State v. Maryland, 167 N.J. 471, 482 (2001)).
"Implicit in the very nature of the term 'consent' is the requirement of
voluntariness." King, 44 N.J. at 352. Accordingly, "consent must be
'unequivocal and specific' and 'freely and intelligently given.'" Ibid. (quoting
Judd v. United States, 89 U.S. App. D.C. 64, 66 (D.C. Cir. 1951)).
In King, the New Jersey Supreme Court listed the following
nonexhaustive factors tending to indicate coerced consent:
(1) that consent was made by an individual already
arrested . . .; (2) that consent was obtained despite a
denial of guilt . . .; (3) that consent was obtained only
after the accused had refused initial requests for consent
to search . . .; (4) that consent was given where the
subsequent search resulted in a seizure of contraband
which the accused must have known would be
discovered . . .; and (5) that consent was given while
the defendant was handcuffed . . . .
[Id. at 352-53 (citations omitted).]
A-2123-17T3
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The King court also listed the following opposing factors suggesting that
a defendant's consent was voluntary: "(1) that consent was given where the
accused had reason to believe that the police would find no contraband . . .; (2)
that the defendant admitted his guilt before consent . . .; and (3) that the
defendant affirmatively assisted the police officers . . . ." Id. at 353 (citations
omitted). The Court, however, acknowledged that "[e]very case necessarily
depends upon its own facts," and that "the existence or absence of one or more
of the above factors is not determinative of the issue." Ibid.
Thereafter, in State v. Johnson, 68 N.J. 349, 353-54 (1975), our Supreme
Court held that "where the State seeks to justify a search on the basis of consent,"
an "essential element" of its burden to show that consent was voluntary "is
knowledge of the right to refuse consent." The Johnson court, however, did not
require the police "to advise the person of his right to refuse to consent to the
search" in a "non-custodial situation." Id. at 354. Rather, it merely required the
State to demonstrate "knowledge on the part of the person involved that he had
a choice in the matter." Ibid.
In State v. Carty, 170 N.J. 632, 646 (2002), the court noted that "the
Johnson standard has not been effective in protecting our citizens' interest
against unreasonable intrusions when it comes to suspicionless consent s earches
A-2123-17T3
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following valid motor vehicle stops." The Carty court explained that "consent
searches following valid motor vehicle stops are either not voluntary because
people feel compelled to consent for various reasons, or are not reasonable
because of the detention associated with obtaining and executing the consent
search." Ibid. Accordingly, it "expand[ed] the Johnson . . . standard and [held]
that unless 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."
Id. at 647.
After considering the record in light of King, Carty, and Johnson, we
reject defendant's claim that the court improperly considered the King factors or
that his consent to search the vehicle was not voluntary. In this regard, although
the court acknowledged that defendant initially refused consent and that the
search resulted in a seizure of contraband that defendant "must have known
would be discovered," it also recognized that "the King factors are only
guideposts." Further, the court noted that at the time defendant consented to the
search, he was not yet handcuffed, and he was informed multiple times of his
right to refuse consent. Rather than rigidly evaluating and weighing the King
factors, the court properly determined that "under the totality of the
A-2123-17T3
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circumstances . . . [d]efendant gave . . . valid and voluntary consent" to the
search because he "asked questions regarding the scope of the search . . . and
eventually provided consent with a clear understanding of the consequences."
We also reject defendant's claim that the court incorrectly characterized
Magnani's statement that if defendant refused consent, he "would tow [the]
vehicle and apply for a search warrant" as "neither threatening nor coercive, but
merely an accurate description of future events." Defendant argues that
Magnani's statement "amounted to an 'announce[ment] in effect that [defendant]
had no right to resist the search . . . .'" (quoting Bumper, 391 U.S. at 550). We
disagree.
In Bumper, the defendant's family member consented to a search of a
home based on a misrepresentation by the police that they had a search warrant.
Bumper, 391 U.S. at 546, 50. As Magnani merely informed defendant that he
would "apply for a search warrant," defendant's reliance on Bumper is
misplaced. Instead, we agree with the trial court that Magnani's statement was
not coercive, but simply a fair prediction of events to come in the investigation.
See Hagans, 233 N.J. at 42; Cancel, 256 N.J. Super. 430, 434.
In Hagans, an officer stopped a vehicle for a motor vehicle violation, and
while waiting for the driver to provide her driving documents, smelled burnt
A-2123-17T3
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marijuana in the vehicle. Hagans, 233 N.J. at 34. The officer handcuffed the
driver and placed her in the back seat of his police vehicle. Ibid. In seeking the
driver's consent to search the vehicle, the officer stated that "it would be a lot
easier if [the defendant] would just make things easy," and read her the consent
form. Id. at 34-35. After the officer explained the driver's rights to refuse
consent and to withdraw consent at any time, she refused to consent to a
voluntary search of her vehicle. Id. at 35. When the officer expressed his
intention to "apply for a search warrant[,] . . . [which would] prolong the
inevitable," the driver consented. Ibid. The officer then reread the consent form
and the driver confirmed her consent. Ibid. In searching the vehicle, the officer
discovered a bag of marijuana and a pistol. Ibid.
The Hagans court found sufficient support for the conclusion that the
driver knowingly and voluntarily consented to the vehicle search. Id. at 42. In
making this determination, it emphasized that the King factors are not
dispositive, as "[t]he objective of a court undertaking a voluntariness analysis is
to scrutinize 'the totality of the particular circumstances of the case.'" Id. at 42
(emphasis in original) (quoting King, 44 N.J. at 353). Additionally, the Hagans
court noted that the police "had probable cause to support the issuance of a
search warrant given the odor of burnt marijuana," and therefore, the officer's
A-2123-17T3
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statement that a search was "inevitable . . . was nothing more than a candid
assessment of the likelihood that a judge would grant his application for a search
warrant." Ibid. Accordingly, "despite the presence of several of the potentially
coercive King factors," the totality of the circumstances demonstrated that the
driver's consent was voluntary. Id. at 43.
We similarly conclude that Magnani's statement that he would "probably
end up towing the vehicle and . . . apply[ing] for a search warrant," like the
officer's statement in Hagans, was "'a fair prediction of events that would follow'
rather than 'a deceptive threat . . . .'" Id. at 42 (quoting Cancel, 256 N.J. Super.
at 434). Further, unlike in Bumper, Magnani made no representation that he was
relying on a warrant to justify the search. See Bumper, 391 U.S. at 546. Instead,
Magnani simply provided a "candid assessment" of the events that would follow
defendant's refusal to consent to the search. Hagans, 233 N.J. at 42.
Additionally, the trial court noted that defendant consented only after
asking Magnani "questions regarding the scope of the search." It further
concluded Magnani's response provided defendant with "a clear understanding
of the consequences," along with "an accurate description of future events." As
such, and giving proper deference to the court's factual findings, we find
A-2123-17T3
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sufficient credible evidence in the record supporting the court's determi nation
that defendant provided valid and voluntary consent to search the vehicle.
III.
Defendant next argues that "given the progressive direction of New
Jersey's jurisprudence in this realm," we should deviate from New Jersey's
settled law relating to consent searches and "adopt the rule from our Fifth
Amendment [Miranda6] jurisprudence . . . requir[ing] that once an individual
asserts his right not to consent to a search, the police must immediately cease
questioning and must not try to persuade the individual to relinquish his right."
Defendant further asserts that "to ensure that an individual's waiver is knowing
and intelligent," we should "add a two-fold requirement to Johnson's knowledge
requirement: 1) that [o]fficers must inform individuals that a decision refusing
consent will be respected; and 2) that officers must inform individuals that
anything found as a result of the search can be used in evidence in a criminal
prosecution against them." Finally, defendant contends that New Jersey courts
should require police to advise individuals that have denied consent "that they
are free to leave if they are, in fact, free to leave[,] as most citizens would not
feel free to leave a scenario where [an officer] has advised that they are
6
Miranda v. Arizona, 384 U.S. 436, 477 (1966).
A-2123-17T3
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impounding the citizen's vehicle." We decline to extend New Jersey voluntary
consent jurisprudence in the novel manner advocated by defendant, particularly
given our role as an intermediate appellate court.
First, as noted, the Supreme Court in Carty recognized that "people feel
compelled to consent [to searches following motor vehicle stops] for various
reasons . . . ." Carty, 170 N.J. at 646. Thus, to address this shortfall in protecting
the interest against unreasonable intrusions, the Court appropriately modified
the Johnson standard to require police to have "a reasonable and articulable basis
beyond the initial valid motor vehicle stop to continue the detention after
completion of the valid traffic stop . . . ." Id. at 647. As the trial court in the
present case correctly found, the police had a reasonable and articulable basis to
stop defendant and continue his detention after the motor vehicle stop based on
the smell of marijuana emanating from defendant's vehicle.
Further, it must be noted that Miranda applies only to custodial
interrogations, and not to "[g]eneral on-the-scene questioning as to facts
surrounding a crime or other general questioning of citizens in the fact-finding
process . . . ." Schneckloth v. Bustamonte, 412 U.S. 218, 232, 42 (1973)
(quoting Miranda, 384 U.S. at 466); see also Johnson, 68 N.J. at 356 (Schreiber,
J., concurring). The Schneckloth court did not interpret Miranda to "extend the
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need for warnings" to consent searches. Schneckloth, 412 U.S. at 232 (quoting
Miranda, 384 U.S. at 477-78).
Further, in Johnson, while our Supreme Court acknowledged state courts'
"power to impose higher standards" at the state level than at the federal level, it
ultimately elected not to apply Miranda to consent searches, requiring only
"knowledge of the right to refuse consent." Johnson, 68 N.J. at 353-54.
Accordingly, given this guidance from our state's highest court, we decline to
extend the requirement of Miranda warnings, and the additional prophylactic
measures requested by defendant, to the voluntary consent circumstances
presented by this record.
Moreover, as the State correctly notes, the Fourth and Fifth Amendments
are grounded in different constitutional principles. While Miranda is based on
"the need to protect the fairness of the trial itself," Schneckloth, 412 U.S. at 240,
"[t]he protections of the Fourth Amendment are of a wholly different order, and
have nothing whatever to do with promoting the fair ascertainment of truth at a
criminal trial." Id. at 242. Rather, "the Fourth Amendment protects the 'security
of one's privacy against arbitrary intrusion by the police . . . .'" Ibid. (quoting
Wolf v. Colorado, 338 U.S. 25, 27 (1949)). "[T]he right of each individual to
be let alone" is a completely separate constitutional value from "the
A-2123-17T3
22
ascertainment of truth." Ibid. (citing Tehan v. United States ex rel. Shott, 382
U.S. 406, 416 (1966)).
In sum, we conclude there was substantial, credible evidence in the record
from the suppression hearing to support the court's factual findings that
defendant's consent was voluntary under the totality of the circumstances. We
further find no basis in the law as presently constituted, or the facts as presented
in the record before us, to impose a requirement that the police instruct
defendants that "anything found as a result of the search may not be used against
them in a criminal prosecution," or that defendants be advised "as to whether or
not they are free to leave after refusing consent."
To the extent we have not specifically addressed any of defendant's
arguments, it is because we conclude they are "without sufficient merit to
warrant discussion in a written opinion." R. 2:11-3(e)(2).
Affirmed.
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