Consent to search voluntarily given based on video here. State v. Hagans233 N.J. 30 (2018).
Because the trial court’s determination that the driver ultimately knowingly and voluntarily gave consent to search is supported by sufficient credible evidence, the trial court properly denied defendant’s motion to suppress the evidence seized during the search.
State v. Hagans 233 N.J. 30 (2018)
April 23, 2018
Because the trial court’s determination that the driver ultimately knowingly and voluntarily gave consent to search is supported by sufficient credible evidence, the trial court properly denied defendant’s motion to suppress the evidence seized during the search.
In this case, the Court considered the validity of a driver’s consent to search her automobile after she initially denied a police officer’s request to search it.
In March 2012, New Jersey State Trooper John Faust pulled over a 2002 Mercury Sable with a damaged taillight on Interstate 295 in Burlington County. The driver, Shonsheray Chandler, had changed lanes without signaling. There were passengers in Chandler’s car: her six-year-old daughter, who was in the back seat, and defendant Malcolm Hagans, sitting in the front passenger seat. Faust approached the passenger side of the vehicle and smelled the odor of burnt marijuana in the vehicle. Faust asked defendant to step out of the vehicle, arrested him, handcuffed him, called for back up, and administered Miranda warnings. Faust then asked Chandler to step out of the vehicle, administered Miranda warnings, and questioned her about the presence of marijuana in the vehicle. Faust handcuffed Chandler and placed her in the backseat of his police vehicle. Chandler denied knowing defendant had marijuana on him and denied that she had been smoking marijuana in the car.
Faust requested Chandler consent to a search of her vehicle. Before reading the consent form to her, Faust told Chandler that “it would be a lot easier if you would just make things easy.” Faust read the consent form aloud. He advised Chandler of her right to refuse consent and that if she refused, barring any other reason to detain her, she could leave. He also explained if she consented, she had a right to be present during the search and could withdraw her consent at any time. Faust asked whether she would give consent, and Chandler responded “no.”
Faust then discussed his next steps. “I know, but at this time . . . we are going to apply for a search warrant, okay, and that is kinda going to prolong the inevitable. I would just like it to be easier.” Chandler replied, “Go ahead.” Faust then inquired, “What’s that ma’am?,” to which Chandler repeated “Go ahead.” Faust asked, “Are you sure?” Chandler answered, “Yeah.” Faust countered, “So you’re saying yes?” Chandler responded, “Yes.” To confirm Chandler’s decision, Faust re-read her the consent-to-search form in its entirety. Faust then again asked Chandler if she consented to the search of her vehicle; she responded “yes.” Faust repeated for the Mobile Video Recorder (MVR) in the police vehicle that Chandler had initially denied consent but changed her mind and consented because she “did not want to wait any longer.” The search produced a bag of marijuana and a loaded .22 caliber pistol.
Defendant admitted to ownership of the marijuana and the pistol. He was charged with unlawful possession of a weapon, fourth-degree child abuse, and a disorderly persons offense for possession of marijuana. At a suppression hearing, the trial court found that Faust had probable cause to pull the vehicle over and for a search. Although the court found that several of the factors set forth in State v. King, 44 N.J. 346, 352-53 (1965), militated against a finding of Chandler’s voluntary consent, it determined the totality of the circumstances indicated that the consent to search was valid and not coerced. The Appellate Division affirmed based on the totality of the evidence.
The Court granted certification, limited to the issue of whether Chandler’s “consent to search the motor vehicle was freely and voluntarily given.” 229 N.J. 161 (2017).
HELD: Because the trial court’s determination that the driver ultimately knowingly and voluntarily gave consent to search is supported by sufficient credible evidence, the trial court properly denied defendant’s motion to suppress the evidence seized during the search. 2
In reviewing the grant or denial of a motion to suppress, an appellate court will uphold the trial court’s factual findings underlying that decision so long as those findings are supported by sufficient credible evidence in the record. Video-recorded evidence is reviewed under the same standard. State v. S.S., 229 N.J. 360, 381 (2017). The panel’s decision here predated the Court’s opinion in S.S. and included findings based on the panel’s own de novo review of the MVR. The Court adheres to the principle enunciated in S.S.
Consent to search is a long-recognized exception to the warrant requirement. Consent searches of motor vehicles that are pulled over by police are valid only if: (1) 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; and (2) the consent is given knowingly and voluntarily.
Consent searches of motor vehicles that are pulled over by police are valid only if: (1) “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,” State v. Carty, 170 N.J. 632, 647 (2002); and (2) the consent is “given knowingly and voluntarily,” id. at 639. The lynchpin to voluntary consent “is whether a person has knowingly waived [her] right to refuse to consent to the search.” State v. Domicz, 188 N.J. 285, 308 (2006) (citing State v. Johnson, 68 N.J. 349, 353–54 (1975) ). The burden is on the State to prove “that 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). Specifically, the consenting individual must have been aware of her right to refuse, before giving consent. Johnson, 68 N.J. at 354.
In the 1965 case of State v. King, this Court delineated factors for use by our courts in considering the voluntariness of consent. 44 N.J. at 352–53. Factors potentially indicating coerced consent include:
(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.
[Ibid. (citations omitted).]
Factors potentially indicating voluntariness of consent include:
(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 emphasized that those factors were not commandments, but “guideposts to aid a trial judge in arriving at his conclusion.” Ibid. The Court cautioned that “the existence or absence of one or more of the factors mentioned above may be of great significance in the circumstances of one case, yet be of slight significance in another.” Ibid. Indeed, the Court explained, “many decisions have sustained a finding that consent was voluntarily given even though the consent was obtained under the authority of the badge or after the accused had been arrested.” Ibid. Voluntariness depends on “the totality of the particular circumstances of the case” with each case “necessarily depend[ing] upon its own facts.” Ibid.
3. In State v. King, the Court delineated factors for use in considering the voluntariness of consent. 44 N.J. at 352-53. Factors potentially indicating coerced consent include: “(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.” Ibid. Factors potentially indicating voluntariness of consent include: “(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. The Court emphasized that those factors were not commandments, but “guideposts to aid a trial judge in arriving at his conclusion.” Ibid. Voluntariness depends on “the totality of the particular circumstances of the case” with each case “necessarily depend[ing] upon its own facts.” Ibid.
4. After determining the automobile stop was valid, the trial court acknowledged and evaluated the King factors but found that Chandler consented to the search voluntarily even though a majority of those factors cut against a finding of voluntariness. Notably, the court stressed the officer’s lack of insistence, the short period between the initial refusal and the consent, the officer’s non-aggressive request for clarification, and Chandler’s repeated affirmations that she did, in fact, give her consent to search. In the trial court’s view, the video evidence was more compelling than the results suggested by a mechanical application of the King factors to the facts of the case. Over fifty years ago, when King was decided, MVRs did not exist. Because of rapid developments in technology, MVRs are increasingly mounted in police vehicles, having become another important tool with the capacity to aid in the search for the truth. The MVR aided the trial court here because it permitted visual and audial evaluation of the police and driver’s interaction on the issue of consent. Specifically, the MVR footage helped the trial court determine that Chandler voluntarily consented to the search of her vehicle. Sufficient credible evidence supports that determination.
5. Defendant contends that Faust’s statement—“We are going to apply for a search warrant, okay, and that is just kinda going to prolong the inevitable”—coerced Chandler’s consent. Although the use of the term “inevitable” was somewhat anticipatory as to what might follow, the manner in which it was used here was not coercive. As a best practice, police officers should tell a suspect only the measures they intend to take—apply for a search warrant—and should not offer a prediction about whether a warrant will issue. Here, Faust had probable cause to support the issuance of a search warrant given the odor of burnt marijuana. Faust’s statement was a candid assessment of the likelihood that a judge would grant his application for a search warrant.
6. Sufficient credible evidence supports the trial court’s determination that Chandler’s consent was voluntary under the totality of the circumstances, despite the presence of several of the potentially coercive King factors. Here, technological advancements permitted the trial court to better evaluate the manner in which Faust obtained consent. Such possibilities—which are increasingly common today—are precisely why the King Court factors are guideposts rather than rigid absolute authority.
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.
