STATE OF NEW JERSEY v. GARY NEAL, 2ND (16-09-1208, 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NOT FOR PUBLICATION WITHOUT THE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-0232-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GARY NEAL, 2ND, a/k/a
GARY NEAL, III,
GEE NEAL, and GARY NEAL,
Defendant-Appellant.
____________________________
Submitted February 28, 2022 – Decided March 17, 2022
Before Judges Messano and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 16-09-1208.
Joseph E. Krakora, Public Defender, attorney for
appellant (Douglas Helman and John P. Flynn,
Assistant Deputy Public Defenders, of counsel and on
the briefs).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Edward F. Ray, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Following the denial of his motion to suppress, defendant Gary Neal, 2nd,
pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b), and in exchange, the State recommended a five-year sentence with a forty-
two-month period of parole ineligibility and dismissed the remaining counts of
the indictment and motor vehicle violations. 1 The judge sentenced defendant in
accordance with the plea agreement.
Before us, defendant raises the following point for our consideration:
POINT I
THE CONSENT EXTRACTED FROM NEAL
DURING THE MOTOR VEHICLE STOP WAS
INVALID. AT THE SUPPRESSION HEARING, THE
JUDGE PROHIBITED TESTIMONY FROM NEAL'S
WIFE THAT THE SIGNATURE ON THE CONSENT
FORM WAS NOT NEAL'S, DENYING NEAL THE
FULL OPPORTUNITY TO PRESENT HIS OWN
DEFENSE. FURTHER, THE OFFICERS FAILED TO
1
Defendant had earlier pled guilty to a different count of the indictment — first-
degree possession of a handgun without a permit by a person having been
previously convicted of an enumerated offense under the No Early Release Act,
N.J.S.A. 2C:39-5(j). In exchange, the State agreed to recommend a ten-year
sentence with five years of parole ineligibility and to dismiss the remaining
counts and motor vehicle violations. Nearly eighteen months later, the State and
defendant moved to vacate defendant's plea based on defendant's cooperation
with the State. Defendant then entered a guilty plea to second-degree unlawful
possession of a handgun pursuant to the restructured plea agreement noted
above.
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2
ASK FOR MRS. NEAL'S CONSENT, DESPITE
KNOWING THAT SHE WAS THE REGISTERED
OWNER OF THE VEHICLE. AT THE VERY LEAST,
THIS MATTER MUST BE REMANDED FOR A NEW
HEARING.
Because the judge erroneously limited the testimony of defendant's wife, Sarah
Neal, we agree a remand is necessary for the judge to consider her testimony in
deciding if the State met its burden of proving defendant actually consented to
the search of the vehicle. We reject defendant's contention that his purported
consent to the search of the vehicle was invalid because Sarah was the titled
owner of the car.
I.
Before any testimony at the hearing and knowing Sarah2 was in court and
prepared to testify on defendant's behalf, the prosecutor advised that the State
objected to defense counsel asking Sarah if the signature on the consent-to-
search form was her husband's. The prosecutor argued such testimony required
an expert. Defense counsel proffered that she would only ask Sarah if "she
recognize[d] her husband's signature." Citing N.J.R.E. 702, the judge agreed
with the prosecutor this presented "a technical issue regarding specialized
2
To avoid confusion, we refer to Sarah Neal by her first name throughout this
opinion. We intend no disrespect by this informality.
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knowledge . . . as to whether . . . the signature on that document was . . .
[defendant]'s or not." Based on this conclusion, the judge allowed Sarah to
testify about her observations at the time of the search, but did not allow her to
testify whether the signature on the consent-to-search form was defendant's.
The State's sole witness at the evidentiary hearing was Bergen County
Sheriff's Officer Kevin Scarpa. Shortly after 4:00 a.m. on January 10, 2016, he
stopped the car defendant was driving because it crossed the center line. Sarah
was in the front passenger seat. When Scarpa first approached the vehicle, he
detected a "heavy odor of raw marijuana and observed . . . a rolled marijuana
cigarette in the back seat area and marijuana flakes on the floor and on
[defendant]." Scarpa learned via a credentials check that Sarah owned the car
and defendant's driver's license was suspended. Scarpa called for backup.
Scarpa testified he could see marijuana residue, a rolled-up "marijuana
cigar" in the back seat area, and a large amount of currency in the console area.
Defendant became nervous and admitted he had some marijuana, which he asked
Sarah to hand over. Scarpa said she took a small bag of apparent marijuana from
her "shirt area," gave it to defendant, who, in turn, gave it to Scarpa. Scarpa
ordered defendant out of the vehicle, where he asked if there was anything else
illegal in the car. Defendant responded there was a handgun. Scarpa asked if
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defendant would be willing to sign a consent-to-search form, and defendant
agreed, read the form and signed it in front of Scarpa's vehicle using the
headlights for illumination.
During this time, Sarah was near the passenger side of the vehicle with
Officer Cutrona, 3 one of the backup officers. Scarpa said there was a tree
blocking his direct view of where they were standing. Although he knew Sarah
owned the car, Scarpa did not ask her for consent. Upon searching the vehicle,
Scarpa recovered the handgun from the pocket on the passenger side door, the
marijuana cigar, and currency in the center console area. Scarpa placed
defendant under arrest.
Sarah testified she and defendant were leaving a party, and, after dropping
off two other people, two officers stopped the car. Although an officer said he
noticed a strong odor of marijuana emanating from the car, Sarah testified she
had asthma and did not smoke, and defendant did not smoke because he was on
parole. However, Sarah heard defendant eventually tell the officer there might
be a "small amount in the center console"; she denied ever having marijuana on
her person. Police then ordered her and defendant to exit the vehicle, which
they did.
3
Officer Cutrona's first name is not provided in the record.
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Police separated Sarah and defendant, and she saw an officer "place[]
[defendant] in handcuffs and br[ing] him back to the police vehicle" while she
"stood under a big tree." Sarah never saw Scarpa and defendant talking in front
of the police car, and she never spoke with Scarpa. At no point did Sarah see
defendant sign a document that night, even though he was "in [her] view." Sarah
testified "there[] [was] no way [defendant] could have signed a paper" because
"there was no one to give him the paper[,]" as "both of the officers were by [her]
vehicle."
There was no oral argument following the testimony, and the judge
reserved decision. Both parties, however, submitted briefs prior to the hearing.
The State argued the initial vehicle stop was lawful based on an observed traffic
violation, and Scarpa properly obtained consent from defendant to search the
vehicle. In a footnote citing State v. Witt, 223 N.J. 409 (2015), the State
alternatively argued the search was proper under the automobile exception to
the warrant requirement because the officers had probable cause to conduct a
warrantless search of the vehicle.
Among other things, defendant argued the initial stop was a pretext, and,
even if it were valid, the following inquiry and warrantless search and seizure
were improper. Defendant contended any apparent authority he had to consent
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to the search was invalid, because Sarah, the vehicle's owner, was present and
police failed to obtain her consent.
In a written opinion, the judge found Scarpa was a credible witness, and,
although Sarah's "testimony was consistent and she had a good recollection of
her encounter with Officer Scarpa," the judge found the officer's testimony
"more credible." The judge found there was a "reasonable and articulable
suspicion" to stop the vehicle based on Scarpa's observation of a traffic
violation. See, e.g., State v. Bacome, 228 N.J. 94, 103 (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.'"
(quoting State v. Carty, 170 N.J. 632, 639–40 (2002))).
Citing Carty, the judge concluded Scarpa had a reasonable and articulable
suspicion to request defendant's consent to search the car. See 170 N.J. at 647("[C]onsent searches following a lawful stop of a motor vehicle should not be
deemed valid . . . unless there is reasonable and articulable suspicion to believe
that an errant motorist or passenger has engaged in, or is about to engage in,
criminal activity."). The judge also found defendant "knowingly and voluntarily
consented to the search." He rejected the argument that Sarah's consent was
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necessary, citing State v. Suazo, 133 N.J. 315, 321 (1993). The judge entered
an order denying defendant's motion to suppress.
II.
"When an appellate court reviews a trial court's decision on a motion to
suppress, the reviewing court defers to the trial court's factual findings,
upholding them 'so long as sufficient credible evidence in the record supports
those findings.'" State v. Nelson, 237 N.J. 540, 551 (2019) (quoting In re J.A.,
233 N.J. 432, 445 (2018)). We defer to those factual findings in recognition of
the trial court's "opportunity to hear and see the witnesses and to have the 'feel'
of the case, which a reviewing court cannot enjoy." State v. Elders, 192 N.J.
224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). However,
legal conclusions drawn from those facts are reviewed de novo. State v. Smith,
212 N.J. 365, 387 (2012) (citing State v. Handy, 206 N.J. 39, 45 (2011)).
In Suazo, the Court considered whether police obtained valid consent to
search a red nylon clothes bag in the trunk of a car based on the driver's
voluntarily executed consent-to-search form for the entire vehicle when the
defendant-passenger claimed the bag was his. 133 N.J. at 317–18. The Court
recognized
A third party who possesses "common authority over or
other sufficient relationship" to the property sought to
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be inspected may consent to its search. That authority
to consent arises from the "mutual use of the property
by persons generally having joint access or control for
most purposes . . . ."
A third party who possesses the authority to
consent to a search of premises generally, however,
may lack the authority to consent to a search of specific
containers found on those premises.
[Id. at 320 (first quoting United States v. Matlock, 415
U.S. 164, 171 (1974); and then citing United States v.
Block, 590 F.2d 535, 541 (4th Cir. 1978)).]
The Court cited cases from other jurisdictions that "concluded . . . because
a driver has immediate possession of and control over the car, he or she may
consent to its search." Id. at 321 (citations omitted); see also State v. Montesano,
298 N.J. Super. 597, 611 (App. Div. 1997) ("Ordinarily a driver has the authority
to consent to the search of the vehicle unless there is evidence that suggests
he/she does not have control over the vehicle." (citing State v. Maristany, 133
N.J. 299, 306 (1993); Suazo, 133 N.J. at 320–21)).
However, the Court held "[w]hen circumstances suggest that the property
to be searched belongs to someone other than the consenting party, the validity
of the third-party consent becomes questionable." Suazo, 133 N.J. at 322.
"Absent evidence to suggest that [the] defendant was aware of his right to object
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to the search of the red bag," the Court was "unwilling to equate [the] defendant's
silence with a knowing waiver of a constitutional right." Id. at 323.
On the same day that Suazo was decided, the Court reached a different
result in Maristany. There, police obtained the written consent of the driver to
search the vehicle's trunk and two pieces of luggage in the trunk. 133 N.J. at
302. They found cocaine in the luggage, and both the driver and the defendant-
passenger were charged. Id. at 302–03. The driver subsequently denied any
knowledge of the contents of the luggage. Id. at 303.
The Court noted: "Appearances of control at the time of the search, not
subsequent determinations of title or property rights, inform our assessment of
the officer's conduct." Id. at 305 (citing State v. Santana, 215 N.J. Super. 63, 71
(App. Div. 1987)). Rejecting the argument that the officers were required to
obtain the defendant's consent to search the bags, the Court held, "Absent
evidence that the driver's control over the car is limited, a driver has the authority
to consent to a complete search of the vehicle, including the trunk, glove
compartment, and other areas." Id. at 306.
In this case, defendant was obviously in control of the car when Scarpa
effectuated the traffic stop. There was nothing to suggest defendant's control
was limited in any way. As the Court said in Suazo, "[A]uthority to consent
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arises from the 'mutual use of the property by persons generally having joint
access or control for most purposes . . . ." 133 N.J. at 320 (quoting Matlock,
415 U.S. at 171 n.7). Scarpa reasonably believed defendant had authority to
consent to the search of the vehicle, and he was not required to obtain the consent
of Sarah.
In Montesano, we rejected the defendant's claim that his consent to search
a suitcase in the trunk of his rental car was invalid because he denied ownership
of the luggage, which was loaded into the car by his co-defendant-passenger,
and police should have obtained the consent of the co-defendant. 298 N.J.
Super. at 603, 609–10. We found the "[d]efendant's denial of ownership [wa]s
unavailing, as it d[id] not constitute a limitation on his consent to search." Id.
at 611. We also noted it was the defendant who now sought "to repudiate his
own consent, not the passenger[, and] . . . the defendant's consent included
authority to search the suitcase." Id. at 612.
We acknowledge that none of these cases are on all fours with the facts
presented here, and, that defendant has cited at least one out-of-state case that
squarely held, "[w]here the known owner is present, the driver has only
apparent, not actual, authority, and his consent is invalid as a matter of law."
Johnson v. State, 905 P.2d 818, 820 (Okla. Crim. App. 1995). But other
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jurisdictions have clearly held to the contrary. See, e.g., United States v.
Dunkley, 911 F.2d 522, 525–26 (11th Cir. 1990) (applying Matlock's "joint
access or control" test and concluding the driver of a car had authority to consent
even if the owner was present as a passenger); United States v. Morales, 861
F.2d 396, 399–400 (3d. Cir. 1988) (holding driver had authority to consent to
search of car even though lessee was a passenger because he conferred power to
consent on driver and never revoked or limited the consent).
We acknowledge defendant's contention that even when access or control
is shared, it may be objectively unreasonable for police to rely on the consent of
one party over objections of the other. See State v. Coles, 218 N.J. 322, 338–
39 (2014) (discussing the United States Supreme Court's holding in Georgia v.
Randolph, 547 U.S. 103, 122–23 (2006), where a co-occupant of a residence
was present and refused to give consent). Nor can police avoid a potential
objection by unlawfully restraining the other party. Id. at 347 ("[V]alid third-
party consent is subject to the exception that the third party's consent cannot be
manufactured through the unlawful detention of the defendant." (citing
Fernandez v. California, 571 U.S. 292 (2014))). However, neither of those
circumstances occurred here.
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There was no evidence that police unlawfully restrained or isolated Sarah
to prevent her objection, or that she attempted to object. Sarah's testimony was
that Scarpa never obtained defendant's consent. Moreover, the testimony
regarding the signature on the consent-to-search form, which the judge
prohibited, was logically intended to corroborate the claim that defendant never
provided consent.
To the extent we have not otherwise addressed them specifically,
defendant's contentions regarding the lack of his voluntary consent to the search
of the car lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
However, the judge erred in ruling Sarah was unqualified to render an
opinion whether the signature on the consent-to-search form was defendant's. It
is, simply put, well-established that fact finders "are allowed to compare a
known sample of a person's handwriting with the handwriting on a contested
document" without expert testimony. State v. Haskins, 131 N.J. 643, 652 (1993)
(citing State v. Carroll, 256 N.J. Super. 575, 597–98 (App. Div. 1992)); see also
N.J.S.A. 2A:82-1 (permitting witnesses to compare signatures proven to be
genuine with disputed signatures). The State's counter argument that defense
counsel failed to actually introduce or authenticate the form is specious; it was
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the prosecutor's pre-emptive objection that made any potential effort to have
Scarpa authenticate the form (a copy of which is in the appellate record) a futile
gesture.
We also reject the State's contention that potential testimony about
whether the signature on the consent-to-search form was defendant's signature
has no probative value. The State relied on the consent exception to the warrant
requirement, and it bore the burden of proof. Scarpa was the State's sole witness,
and therefore, defendant was entitled to challenge his testimony, including the
assertion that defendant voluntarily executed the form using illumination from
the police vehicle, while standing in the rain some distance away from his wife.
We therefore remand the matter to the trial court for a further evidentiary
hearing at which Sarah shall be permitted to opine, if a proper foundation is laid
regarding her familiarity with defendant's signature, whether the signature on
the consent-to-search form is defendant's. The judge shall consider that
testimony along with the other testimony already received and decide whether
the State met its burden of proving defendant knowingly and voluntarily
consented to the search of the car.
In addition, because the State sought to justify the search under the
automobile exception with a brief citation to Witt in its opposition brief, the
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judge shall permit the State to provide additional evidence justifying this
exception to the warrant requirement if it chooses, or to argue the exception
applies on the existing record. Defendant shall be permitted to respond to that
alternative justification for the search if advanced by the State on remand.
Because the State never asserted the inevitable discovery exception to the
warrant requirement applied before the trial judge, we see no reason why it
should be permitted to assert this ground on remand. See State v. Robinson, 200
N.J. 1, 20 (2009).
Affirmed in part, remanded in part. We do not retain jurisdiction.
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