STATE OF NEW JERSEY VS. ORLANDO A. HERNANDEZ (16-03-0363, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-1367-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ORLANDO A. HERNANDEZ,
a/k/a ORLANDO HERNANDEZ,
HERNANDEZ, ORLANDO
ARNOLD, ORLANDO
HERNANDEZ JR., ORLANDO
FERNANDEZ, WILLIAM
BONURA, and CAPONE,
Defendant-Appellant.
_____________________________
Argued November 4, 2021 – Decided December 13, 2021
Before Judges Fuentes, Gilson, and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 16-03-0363.
S. Emile Lisboa, IV, argued the cause for appellant
(Galantucci & Patuto, attorneys; S. Emile Lisboa, IV,
of counsel and on the brief).
Jaimee M. Chasmer, Assistant Prosecutor, argued the
cause for respondent (Mark Musella, Bergen County
Prosecutor, attorney; William P. Miller, Assistant
Prosecutor, of counsel; Catherine A. Foddai, Legal
Assistant, on the brief).
PER CURIAM
After a judge denied his motion to suppress evidence seized during a
purportedly consented-to motor-vehicle search, defendant Orlando A.
Hernandez was tried before a jury on various drug-related offenses. Before
receiving the jury's verdict, the trial judge learned the jury foreperson had left
the jury room for an unknown time after the jury had begun deliberations and
before it reached a verdict. Declining to interview each of the jurors to
determine whether they had deliberated while the foreperson was absent, the
trial court denied defendant's motion for a mistrial and accepted the jury's
verdict convicting defendant of all charges. Because the motion judge should
have granted the motion to suppress and the trial judge should have interviewed
the jurors, we reverse.
I.
We glean the following facts from the record developed during the
suppression hearing and trial.
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A.
While driving a patrol vehicle early on September 21, 2015, Lyndhurst
police officer Paul F. Haggerty stopped at a red light, directly behind defendant's
vehicle. From his vantage point, he could not read the vehicle's temporary
registration, which was displayed in the top left corner of the vehicle's rear
windshield. Because he could not read the temporary registration and because
the vehicle did not have a driver's-side exterior rearview mirror, he decided to
stop defendant's vehicle.
At about 1:12 a.m., the traffic light turned green, defendant's vehicle
moved forward to merge onto a highway, and Haggerty activated his emergency
lights and siren, attempting to "corral" defendant and prevent him from entering
the highway. After defendant pulled his car over to the right side of the road,
Haggerty exited his vehicle and approached the driver's side of defendant's
vehicle. As he approached the vehicle, Haggerty was able to view the
registration number. He saw in the vehicle a single occupant, later identified as
defendant, and smelled burnt marijuana coming from the passenger
compartment. Haggerty radioed headquarters and requested back-up "for officer
safety purposes." Haggerty asked defendant if anyone had smoked marijuana in
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the vehicle; defendant told him a friend had smoked marijuana in the vehicle
earlier that evening, but the vehicle did not then contain any marijuana.
Officer DeCamp arrived as back-up. Haggerty asked defendant to step
out of his vehicle, hoping to get "a better interview" with him. Haggerty
characterized defendant's demeanor as "[a]rgumentative, challenging the basis
for the stop." In response to Haggerty's questions, defendant told Haggerty he
was coming from a friend's house, indicating the house was "over there," without
providing the friend's name or address. Haggerty characterized those responses
as "evasive." It isn't clear from the record whether Haggerty asked for the
friend's name or address. Because of the suspected marijuana and the "potential
of concealed weapons," Haggerty conducted a pat-down search of defendant and
did not find any weapons, drugs, or other contraband on him.
Because of the "evasive" responses and the burnt-marijuana odor,
Haggerty asked for defendant's consent to search his vehicle. When defendant
declined to give his consent, Haggerty asked his supervisor, Lieutenant Michael
Carrino, to come to the scene so he could authorize a request for the assistance
of a Bergen County K-9 dog unit. Haggerty wanted the assistance of a K-9 unit
because of "a suspicion based on the odor present, . . . the admission that
somebody had smoked in the vehicle, . . . the argumentative behavior, and the
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evasive responses, as well as [his] suspicions that there may have been
something illegal in the vehicle, whether it be contraband or weapon." Carrino
arrived at the scene, spoke with Haggerty, and authorized the request of the K-
9 unit.
Bergen County Sheriff's Officer Joseph Cutrona arrived on the scene with
a narcotics dog. Cutrona's dog conducted an "exterior sniff of the vehicle."
During that process, the dog alerted Cutrona to the possibility of the presence of
narcotics by scratching at the front passenger-side bumper of the vehicle and at
the seam between the driver's door and the rear passenger's door.
Haggerty advised defendant the dog had "hit positive for potential
narcotics present in the vehicle" and that their next step would be to "impound
the vehicle and apply for a search warrant." Defendant's home address was in
Trenton. Haggerty thought it was "fair and reasonable" to ask again for
defendant's consent to the search instead of seeking a search warrant because
the search warrant process "could take several hours," defendant's home in
Trenton was "not the close[s]t proximity to our jurisdiction," and there was "no
other transportation home" for defendant if they impounded defendant's vehicle.
Haggerty told defendant, "I'll provide you with one final opportunity to
consent. If not, we're going to be making [an] application for a search warrant
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and impounding the vehicle, and releasing you from the scene." Defendant
consented to a search of the areas "where the dog hit." Rejecting defendant's
consent to search just those areas, Haggerty advised defendant "that [is] not how
a consent search works." Haggerty told him, "it's the entire vehicle" and "[t]he
consent to search is not a specific area . . . it's . . . every compartment within,
bumper to bumper." Lieutenant Carrino confirmed Haggerty's statement that
any consent had to be of "the entire vehicle and every compartment within, not
just where the dog hit." As to his rights with regards to the consent to search,
Haggerty advised defendant:
He had the . . . right to refuse . . . or stop . . . or if he
had provided consent, stop the search at any time during
the course of it. If he refused, he would be told that
he'd be released on the scene once we identified him
properly and we'd impound the vehicle for a search
warrant application . . . .
Haggerty provided defendant with a "CONSENT TO SEARCH MOTOR
VEHICLE" form and read it to him "line by line." Haggerty filled in portions
of the form. For example, on the portion of the form stating "I, ______, do
hereby consent to have members of the Lyndhurst Police Department and all
other law enforcement agenc[ies] who may be cooperating with them, to conduct
a complete search of: __________," Haggerty filled in defendant's name and
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wrote "my vehicle" and a description of the vehicle in the blanks provided to
describe the extent of the search. The form also contained these provisions:
I further authorize the same officers to remove any and
all papers, property and effects which they may
consider pertinent to their criminal investigation. I give
this consent to search knowingly and voluntarily
without fear, threat, coercion or promise of any kind. I
have been further advised that I may withdraw my
consent at any time during the search.
I have been advised by [Haggerty] and fully understand
that I have the right to refuse giving my consent to
search and am aware that if I wish to exercise this right
it would be respected.
Haggerty and defendant were both holding the form as Haggerty read it to
defendant. Haggerty did not provide the form to defendant for his individual
review. After Haggerty finished reading the form, defendant signed it.
Haggerty and Cutrona conducted the vehicle search. They had different
recollections of how they conducted the search; Haggerty's recollection differed
between his direct- and cross-examination testimony at the suppression hearing.
Haggerty described the vehicle as having a "rear seat pass through" to the trunk
compartment. During direct examination, Haggerty testified Cutrona, while in
the rear seat of the vehicle, had "pulled a toolbox through the pass hole,"
"opened up the toolbox, [and] located a plastic shopping bag." The bag
contained a substance Haggerty suspected based on its packaging was cocaine.
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On cross-examination, Haggerty testified the toolbox had remained in the trunk
and "we pulled the contraband through the hole, from the toolbox." He
described the toolbox as having "snaps on it." He denied being "hands on with
the toolbox." They did not seize the toolbox and secure it as evidence because
his police department had a small evidence room and the toolbox was "too large
and it takes up space for unnecessary reasons."
Cutrona described the vehicle as having seats that could be folded down.
According to Cutrona, he opened the rear passenger door, folded down the rear
seat, reached in, found a metal toolbox behind the rear passenger seat on the
driver's side, put his hand in the toolbox, was "pricked" by something, and pulled
his hand back. Haggerty then searched the toolbox and found the bag that
contained the cocaine.
Haggerty arrested defendant, handcuffed him, and issued tickets for
operation of a motor vehicle while in possession of a controlled dangerous
substance, N.J.S.A. 39:4-49.1, improper display of registration plates, N.J.S.A.
39:3-33, and failure to have a driver's side, external rearview mirror, N.J.S.A.
39:3-71. DeCamp transported defendant to police headquarters, when, for the
first time, he was advised of his rights under Miranda v. Arizona, 384 U.S. 436(1966). Police subsequently determined the plastic shopping bag contained 9.7
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ounces of cocaine. They did not find any raw or burnt marijuana in the vehicle
or any drugs in the areas identified by the narcotics dog.
B.
A grand jury indicted defendant and charged him with first-degree
possession of five or more ounces of cocaine with the intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and (b)(1); third-degree possession of cocaine, N.J.S.A.
2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute
while within 1,000 feet of a school, N.J.S.A. 2C:35-7; and second-degree
possession of cocaine with intent to distribute while within 500 feet of a public
park, N.J.S.A. 2C:35-7.1. The State dismissed the last two charges before trial.
Defendant moved to suppress all evidence seized during the September
21, 2015 vehicle stop. The motion judge conducted a two-day evidentiary
hearing, during which the State called Haggerty and Cutrona and defendant
called a witness admitted by the judge as a dog-sniff expert.
In a written opinion, the motion judge denied defendant's motion. She
found Haggerty's stop of defendant's vehicle was supported by Haggerty's
reasonable and articulable suspicion defendant had been or was committing a
Title 39 offense, specifically violations of N.J.S.A. 39:3-33 and -71 for,
respectively, affixing the temporary registration improperly to the rear
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windshield and not having a driver's-side, external rearview mirror. Although
she found the pat-down search had violated defendant's constitutional rights, the
motion judge concluded the discovery of the cocaine was sufficiently attenuated
from the unlawful pat-down search to permit its introduction into evidence at
trial. The motion judge held the removal of defendant from the vehicle, the
narcotics-dog sniff, and the vehicle search had not violated defendant's rights.
With respect to the vehicle search, the judge found defendant knowingly and
voluntarily had consented to the search.
Although she found both Haggerty and Cutrona to be credible, the motion
judge did not address or resolve some of the inconsistencies in their testimony
regarding how they conducted the vehicle search. For example, she did not
address the officers' directly divergent testimony as to which of them opened the
toolbox and found the cocaine and Haggerty's conflicting testimony that Cutrona
had pulled the toolbox through the pass hole and that the toolbox had never left
the trunk. In rendering her decision, the motion judge also made factual findings
that were not supported by the record. For example, she found defendant had
advised Haggerty he had "just come from a friend's house, but could not
remember the friend's name." Haggerty did not testify defendant had said he
could not remember his friend's name or that he had asked defendant to provide
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his friend's name. The motion judge found defendant's purported "failure to
provide the location or name of the friend" to be "the sort of evasive responses
that might suggest [defendant] had smoked marijuana earlier." From that
finding, she concluded defendant had admitted his guilt before consenting to the
search, a factor she considered in holding defendant's consent had been
voluntary.
C.
A jury and a different judge presided over defendant's trial. The trial judge
included in the jury charge the following instructions, each of which is contained
in the Model Criminal Jury Charges:
• The verdict must represent the considered
judgment of each juror and be unanimous as to
each charge. This means all of you must agree if
the defendant is guilty or not guilty on each
charge.
• It is your duty as jurors to consult with one
another and to deliberate with a view to reaching
an agreement if you can do so without violence
to individual judgment.
• Each of you must decide the case for yourself, but
do so only after an impartial consideration of the
evidence with your fellow jurors.
• In the course of your deliberations, do not
hesitate to reexamine your own views and change
your opinion if convinced it is erroneous but not
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– but do not surrender your honest conviction as
to the weight or effect of evidence solely because
of the opinion of your fellow jurors or for the
mere purpose of returning a verdict.
• Your verdict, whatever it may be as to each crime
charged, must be unanimous. Each of the twelve
members of the deliberating jury must agree as to
the verdict.
After naming juror number one as the foreperson, the trial judge instructed
"[y]ou will preside over the deliberations and tell us a verdict when it's reached"
and "[i]t is your responsibility to lead the deliberations."
The jury received the case at 4:19 p.m. Pressing a buzzer, the jury notified
the court clerk it had reached a verdict at about 5:00 p.m. Around 5:05 p.m., the
trial judge became aware juror number one had left the jury room to use the
hallway bathroom several minutes before the jury had pressed the buzzer
indicating it had reached a verdict. The trial judge saw the back of the juror
leaving but thought he was a staff member. Defense counsel saw the juror in
the hallway entering the restroom; he returned to the courtroom to advise the
court clerk he had seen a juror in the hallway.
Before the jury returned its verdict, the trial judge had juror number one
brought into the courtroom and examined him under oath. The judge told juror
number one, "[n]ormally, when a jury is impaneled, you cannot leave that room"
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and asked him what had happened. Juror number one stated he had left the jury
room to use the restroom in the hallway. He stated no one was in the restroom
and he "did not speak to anybody" while using the restroom.
The trial judge asked him if deliberations had "concluded at that point."
He initially responded, "Yes, Your Honor." However, on further inquiry, juror
number one stated deliberations had not concluded before he left the jury room
but only after he had returned from the restroom:
THE COURT: Had the deliberations concluded at that
point?
JUROR NUMBER ONE: Yes, Your Honor.
THE COURT: So you concluded with your fellow
jurors coming to some conclusion. And then you just
decided to run to the restroom quickly before you came
out. Is that it?
JUROR NUMBER ONE: If -- no. At the time when I
used the restroom, not everybody was set on a
unanimous answer. But I had to use the restroom, so I
just went to the restroom. I really just had to use the
restroom.
THE COURT: You're – believe me, I understand. So
then when you came back –
JUROR NUMBER ONE: Yes, Your Honor.
THE COURT: -- did you, as a collaborative group, did
you come to some conclusion, all of you together?
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JUROR NUMBER ONE: Yes. When I came back, we
decided on a decision.
As juror number one was being moved into a different room, counsel noticed he
had a piece of paper in his hand. Because it might have been the verdict sheet,
the trial judge asked a sheriff's officer to retrieve it from him and place it in an
envelope.
Outside of the presence of the jurors, counsel and the trial judge agreed,
based on juror number one's testimony, the other members of the jury could have
deliberated while juror number one was out in the hallway restroom. The trial
judge discussed with counsel what action the court should take, contemplating
sending juror number one back into the jury room to confirm that the jurors were
in agreement, excusing him and seating one of the alternate jurors on the jury,
or conducting a voir dire of the other jurors to determine whether they continued
to deliberate after juror number one had left the jury room. The trial judge
decided to excuse the jurors for the day and to bring them back the next day to
voir dire them on "their perception of the status of the deliberations . . . when
that one juror departed."
The following day, defense counsel asked for a mistrial, "based on the
observations that we know already" and on Rule 1:8-2(a)'s requirement that a
"deliberating jury in a criminal action . . . consist of 12 persons." Alternatively,
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he argued the court had to conduct a voir dire of the other jurors "as to whether
or not the case was discussed while [juror] number [one] was out of the room."
The trial judge denied both requests. The judge found voir dire of the remaining
jurors "could have no meaningful conclusion or resolution. In fact, it could open
the door to our peeking into the inside of actually what happened in that jury
room." Noting that "people need to use bathrooms during their deliberations"
and "[w]e don't directly instruct jurors to stop communicating when a juror is
using the bathroom," the judge decided to "accept the verdict from the jury
undisturbed." The jury found defendant guilty of both counts.
Defendant moved for a judgment of acquittal notwithstanding the verdict
pursuant to Rule 3:18-2 or, alternatively, for a new trial pursuant to Rule 3:20-
1, arguing, among other things, that the jury's "deliberations did not consistently
occur between all twelve jurors" and that the "absence of a juror for several
minutes during deliberation" was cause for a new trial. The trial judge denied
the motion in its entirety in a written opinion. Because the "court ha[d] no
information showing that the defendant was prejudiced by the brief absence of
juror number one," the judge held
this separation holds no greater prejudicial weight than
if juror number one were to use the restroom in the jury
room. Were he to use the restroom alone in the jury
room, the court assumes that the door would be closed,
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and the juror would have been unable to participate in
any deliberations that may have taken place in the
common area of the jury room during that time.
Additionally, the court has no reason to believe that
substantial deliberation took place among the
remaining eleven jurors while [juror number one] was
briefly out of the room.
The judge also concluded, based on a jury charge that the jury foreperson would
lead all jury deliberations, she had to "assume, absent any evidence to the
contrary, that the jurors did not deliberate without the foreperson ."
The trial judge subsequently sentenced defendant to a term of twenty-
years imprisonment with ten years of parole ineligibility.
In this appeal, defendant argues:
POINT I: THE STOP, CUSTODIAL DETENTION OF
DEFENDANT, AND THE SEARCH OF HIS
VEHICLE VIOLATED DEFENDANT’S RIGHTS
UNDER THE FOURTH AMENDMENT AND ART. I,
PARA. 7 OF THE NEW JERSEY CONSTITUTION;
AND ALL EVIDENCE DERIVED THEREFROM,
BOTH VERBAL AND PHYSICAL, SHOULD HAVE
BEEN SUPPRESSED.
A. The stop of Defendant’s vehicle was
without reasonable suspicion of a motor
vehicle violation.
B. The Defendant was unlawfully in
"custody," the constitutional equivalent of
an "arrest" from the outset of the stop of his
vehicle.
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C. The deficient training and certification
of both the drug sniffing dog and his
handler; the conduct of the instant canine
search in violation of established
standards; and the false reactions of the
canine were inadequate to establish
probable cause to search.
POINT II: THE COURT BELOW ERRED IN
FAILING TO GRANT DEFENDANT’S MOTION
FOR A MISTRIAL, AND MOTION FOR A NEW
TRIAL BECAUSE HE WAS CONVICTED BASED
ON THE "DELIBERATIONS" OF ONLY 11 JURORS.
POINT III: THE COURT ABUSED ITS DISCRETION
IN ALLOWING THE STATE TO FILE ITS MOTION
FOR AN EXTENDED TERM WELL BEYOND THE
TIME REQUIRED BY R. 3:21-4(E); BY FAILING TO
GIVE PROPER WEIGHT TO A MITIGATING
CIRCUMSTANCE; AND BY FAILING TO APPLY A
PAROLE INELIGIBILITY PERIOD OF ONE THIRD
THE TERM IMPOSED.
II.
Our scope of review of a suppression decision is limited. State v. Ahmad,
246 N.J. 592, 609 (2021). We uphold a trial court's factual findings made in
connection with a motion to suppress when "those findings are supported by
sufficient credible evidence in the record." Ibid. (quoting State v. Elders, 192
N.J. 224, 243 (2007)). We defer to a trial court's factual findings because they
are "informed by [the court's] first-hand assessment of the credibility of the
witnesses . . . ." State v. Lentz, 463 N.J. Super. 54, 67 (App. Div. 2020). "[A]
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trial court's factual findings should not be overturned merely because an
appellate court disagrees with the inferences drawn and the evidence accepted
by the trial court," State v. S.S., 229 N.J. 360, 374 (2017), but only if the findings
are "so clearly mistaken that the interests of justice demand intervention and
correction," State v. Gamble, 218 N.J. 412, 425 (2014) (quoting Elders, 192 N.J.
at 244). We review de novo a trial court's legal conclusions. Ahmad, 246 N.J.
at 609.
A.
The Fourth Amendment of the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution forbid law enforcement from
conducting unreasonable searches and seizures. State v. Terry, 232 N.J. 218,
231 (2018). A warrantless search or seizure is presumptively unreasonable and
invalid. State v. Chisum, 236 N.J. 530, 545 (2019); State v. Hagans, 233 N.J.
30, 38 (2018).
A "roadside stop by a police officer constitutes a seizure under both the
Federal and New Jersey Constitutions." State v. Dunbar, 229 N.J. 521, 532
(2017). "To be lawful, an automobile stop 'must be based on reasonable and
articulable suspicion that an offense, including a minor traffic offense, has been
or is being committed.'" State v. Bacome, 228 N.J. 94, 103 (2017) (quoting
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State v. Carty, 170 N.J. 632, 639-40 (2002)). The required "'articulable reasons'
or 'particularized suspicion' of criminal activity must be based upon the law
enforcement officer's assessment of the totality of circumstances with which he
is faced . . . in view of [the] officer's experience and knowledge, taken together
with rational inferences drawn from those facts." State v. Davis, 104 N.J. 490,
504 (1986).
Haggerty decided to stop defendant's vehicle because from his initial
vantage point he could not read the vehicle's temporary registration, which was
displayed in the top left corner of the vehicle's rear windshield, and because the
vehicle did not have a driver's-side exterior rearview mirror, which the State
asserts are traffic offenses pursuant to N.J.S.A. 39:3-33 and 39:3-71. Haggerty
failed to explain how the display of the temporary registration violated N.J.S.A.
39:3-33. For example, he did not assert it was marred by "grease, dust, or other
blurring matter" or failed to meet the requirement that it be displayed "not less
than 12 inches nor more than 48 inches from the ground in a horizontal position."
N.J.S.A. 39:3-33. The motion judge's finding that the temporary registration
was affixed "improperly" to the rear windshield in violation of N.J.S.A. 39:3-33
and thereby provided reasonable and articulable suspicion an offense was being
committed was not supported factually or legally.
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Defendant asserts "Haggerty's testimony makes clear" Haggerty noticed
the missing mirror after he had decided to stop the vehicle. That assertion is not
supported by the record. In both his direct and cross examinations, Haggerty
identified the missing mirror as a reason he decided to stop defendant's vehicle.
That consistent, and as found by the motion judge, credible testimony regarding
the missing mirror supports the conclusion Haggerty had a reasonable and
articulable suspicion that an offense, specifically a violation of N.J.S.A. 39:3-
71, was being committed. That alone is sufficient to support Haggerty's decision
to stop defendant's vehicle.
B.
Next, we turn to the propriety of the search of the vehicle and toolbox.
"[O]ur constitutional jurisprudence evinces a strong preference" for searches
conducted pursuant to "judicially issued warrants." Elders, 192 N.J. at 246. For
a court to find permissible a warrantless search, the State must prove the search
fell within one of the few recognized exceptions to the warrant requirement.
Chisum, 236 N.J. at 545. "Consent to search is a 'long-recognized' exception to
the warrant requirement." State v. Hagans, 233 N.J. at 39 (quoting State v.
Coles, 218 N.J. 322, 337 (2014)). In consent-based searches, the State must
prove consent was given "knowingly and voluntarily." State v. Carty, 170 N.J.
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632, 639, modified by 174 N.J. 351 (2002); see also State v. Johnson, 68 N.J.
349, 354 (1975) (finding "an essential element of" a voluntary consent "is
knowledge of the right to refuse consent").
To establish a defendant knowingly consented to a warrantless search, the
State must prove the defendant before consenting understood he had the right to
refuse to consent to the search and that by consenting, he was waiving that right.
Hagans, 233 N.J. at 39. The State must show "the individual giving consent
knew that he or she 'had a choice in the matter.'" Carty, 170 N.J. at 639 (quoting
Johnson, 68 N.J. at 354). "One cannot be held to have waived a right if he was
unaware of its existence." Johnson, 68 N.J. at 354.
The motion judge erred in concluding defendant had knowingly consented
to the search. She based that conclusion in part on her finding Haggerty "had
advised [d]efendant that he had the right to refuse or could stop the search, but
if that occurred, Haggerty would apply for a search warrant." That finding is
not supported by Haggerty's testimony. Instead, Haggerty's testimony
demonstrates the police misinformed defendant of his rights and gave defendant
contradictory and convoluted instructions that prevented him from knowingly
consenting to the search.
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Defendant expressly wanted to limit his consent to a search of the areas
of the vehicle "where the dog hit." That was his right. "A suspect may of course
delimit as he chooses the scope of the search to which he consents." Florida v.
Jimeno, 500 U.S. 248, 252 (1991); see also State v. Hampton, 333 N.J. Super.
19, 30 (App. Div. 2000) (finding a suspect has the right to limit the scope of his
consent to a motor-vehicle search); State v. Santana, 215 N.J. Super. 63, 72
(App. Div. 1987) (finding "the scope of a consent search is limited by the terms
of its authorization"). Instead of respecting defendant's right to limit the scope
of his consent, Haggerty misstated the law and incorrectly advised him, "that
[is] not how a consent search works" and told him, "it's the entire vehicle" and
"[t]he consent to search is not a specific area . . . ." Lieutenant Carrino, instead
of correcting Haggerty's misstatement of defendant's rights regarding the
consent to search, confirmed it, saying any consent had to be of "the entire
vehicle . . . not just where the dog hit." Because defendant's consent was based
on the police officers' misstatement of his rights, it was not a knowing consent.
Although the consent form stated defendant could "withdraw [his] consent
at any time during the search" and Haggerty told him he could "stop the search
at any time during the course of it," Haggerty's instruction that if defendant
consented to the search, he was consenting to a search of the entire vehicle
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directly contradicted the statement about his right to withdraw his consent after
the search began. By repeatedly telling him he could consent only to a search
of the entire vehicle, the police stripped defendant of the knowledge of his right
to limit the scope of his consent, to stop the search once it had begun, and to
withdraw his consent after a partial search had occurred.
The State also failed to establish that the search of the toolbox and the bag
in the toolbox was lawful. A lawful consent search depends on a knowing and
fully informed consent that authorizes the places to be searched. Jimeno, 500
U.S. at 252; Hampton, 333 N.J. Super. at 30. Haggerty's testimony did not
establish that defendant consented to a search of closed containers in the trunk.
Neither did the consent form, which referenced only the vehicle and said nothing
about closed containers contained in the vehicle. See State v. Maristany, 133
N.J. 299, 302 (1993) (finding lawful a search of luggage based on a consent-to-
search form authorizing a search of the vehicle and luggage found in its trunk).
Moreover, Haggerty's testimony did not establish probable cause for a search of
a closed container in the trunk. The narcotics dog indicated that there might be
drugs in the front of the vehicle or in the passenger section near the seam
between the front and rear doors. Those hits did not establish probable cause
for a search of a closed container in the trunk.
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The lack of probable cause to open the toolbox found in the trunk was
compounded by the inaccurate description of defendant's right to limit the scope
of his consent to the search. But for the mixed messages and inaccurate
information about his rights the police gave him, defendant might have protested
the search of the toolbox. See Hampton, 333 N.J. Super. at 30 (finding defendant
had been deprived of right to terminate search or limit scope of search into
trunk); State v. Abreu, 257 N.J. Super. 549, 555-56 (App. Div. 1992) (finding
defendant could have protested search of a bag in a motor-vehicle stop).
The record is too murky to establish defendant understood his rights
regarding consenting to the search. In fact, the record demonstrates a
misunderstanding, based on the police officers' inaccurate statements, of what
his rights were. Because the State failed to prove defendant understood his
rights, the motion judge erred in finding defendant voluntarily and knowingly
consented to the search and erred in denying the suppression. Accordingly, we
reverse.
C.
We "will not disturb a trial court's ruling on a motion for a mistrial, absent
an abuse of discretion that results in a manifest injustice." State v. Jackson, 211
N.J. 394, 407 (2012); see also State v. Smith, 465 N.J. Super. 515, 532 (App.
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Div. 2020). "To address a motion for a mistrial, trial courts must consider the
unique circumstances of the case." State v. Smith, 224 N.J. 36, 47 (2016). "If
there is 'an appropriate alternative course of action,' a mistrial is not a proper
exercise of discretion." Ibid. (quoting State v. Allah, 170 N.J. 269, 281 (2002)).
The appropriate and required course of action here was to interview the eleven
jurors who remained in the jury room during juror number one's absence to
determine if they deliberated during his absence. The trial judge's failure to
follow that requested course of action was an abuse of discretion that resulted
in a manifest injustice – the deprivation of defendant's right to a fair trial.
This issue regarding juror number one's absence raised a concern that
defendant was deprived of his fundamental right to a fair trial. To have a fair
trial, given that the parties had not stipulated otherwise in writing with court
approval, defendant had to have a "deliberating jury . . . consist[ing] of 12
persons." R. 1:8-2(a); see also State v. Gleaton, 446 N.J. Super. 478, 522 (App.
Div. 2016). The allegation of juror number one's misconduct in leaving the jury
room required the trial judge to make a "probing inquiry into the possible
prejudice caused by any jury irregularity." State v. Scherzer, 301 N.J. Super.
363, 487-88 (App. Div. 1997); see also Barber v. Shop-Rite of Englewood &
Assocs., Inc., 406 N.J. Super. 32, 54 (App. Div. 2009). "Where the record does
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not show whether the irregularity was prejudicial, it will be presumed to be so."
Scherzer, 301 N.J. Super. at 486.
We know for some time period after deliberations began and before a
verdict was reached, only eleven jurors were present in the jury room. What we
don't know – because the trial judge chose not to ask the eleven people in the
room, the only people with knowledge – is whether they deliberated while juror
number one was absent and whether defendant had, for that period of time, a
"deliberating jury" of only eleven people.
Resolution of that issue required asking the jurors one question: did the
jury continue to deliberate while juror number one was absent? Asking that
direct question would not have been an "invasion of [the jury's] sacred process,"
as the trial judge found. In fact, it would have had no impact on the
deliberations. The verdict, though not announced, had already been reached.
Questioning the jurors had no potential to disrupt jury deliberations.
Instead of questioning the jurors, the trial judge "assume[d], absent any
evidence to the contrary, that the jurors did not deliberate without the
foreperson," relying on the jury instructions that the foreperson would "preside
over the deliberations" and "lead the deliberations." First, there was no
"evidence to the contrary" because the only people with knowledge, the jurors
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who remained in the jury room, weren't asked. Second, the judge's reliance on
those instructions was misplaced. Although we generally presume jurors follow
instructions, see State v. Armour, 446 N.J. Super. 295, 314 (App. Div. 2016),
we know juror number one did not follow the foreperson instructions. Instead
of presiding over and leading the deliberations, he left the jury room before a
verdict was reached, walked out into the hallway, and was absent from the jury
room for an unknown period of time. Leaving the jury room and courtroom to
go out to use a restroom in the public hallway is simply not the same thing as
using a restroom in the jury room within feet of the other jurors. See State v.
Rios, 314 S.W.3d 414, 420 (Mo. Ct. App. 2010) (finding jurors' use of restroom
inside the jury room was not juror separation); State v. Jackson, 659 S.E.2d 73,
76 (N.C. Ct. App. 2008) (finding "the jury bathroom . . . to be part of the jury
room").
We appreciate the difficult and unusual position in which the trial judge
found herself. But to ensure defendant had a fair trial before a deliberating jury
of twelve people – which was his right – she had to question the jurors. Failure
to do so was an abuse of discretion requiring reversal.
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D.
Defendant's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. See R. 2:11-3(e)(2).
Reversed and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
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