Standard of Appellate Review for trial court’s decision wither to Suppress the gun found in the glove box after a ‘warrantless search’.

14-2-7924 State of New Jersey v. Anthony D. ParkerN.J. Super. App. Div.

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

  1. Facts:

The judge conducted suppression hearings on July 26, 2016 and September 30, 2016. The following facts were adduced at the suppression hearings.

At 10:00 p.m. on March 16, 2014, Berlin Township police officer Kenneth Barbagli, Jr., saw a white Dodge Charger bearing Pennsylvania license plate JGT6711, driven by defendant, exceeding the posted speed limit. While following defendant’s car, Barbagli received a call from police dispatch, reporting an erratic driver in the area. Dispatch related the erratic driver was in a Chevy sedan with Pennsylvania license plate JDT6711.

Defendant drove into a shopping center and parked the car. Barbagli parked behind defendant’s car. Defendant was in the driver’s seat and a female was in the front passenger seat. Barbagli asked defendant for his license, registration, and proof of insurance.

Exhibit D-7 marked during the suppression hearing was a sample of the blank rental pamphlet defendant claimed he gave to Barbagli. The pamphlet had spaces for “name,” “color/model,” and “license plate no.” The blank pamphlet also had contact information for the rental agency. In addition, the blank pamphlet provided liability protection insurance for the driver of the rented vehicle within the minimum limits required by the jurisdiction in which an accident occurs. According to the suppression hearing testimony, the actual insurance policy was maintained in the rental agency’s offices. Defendant testified the blank pamphlet marked at the suppression hearing was identical to the document he gave to the officer.

Barbagli testified defendant gave him a one-page, typewritten rental agreement, which was separate from the renal pamphlet and its contents. Barbagli further explained a rental agreement typically constitutes the vehicle’s registration. According to the officer, if the information on the rental agreement matched the vehicle’s license plate, he would have considered the document sufficient proof of registration. However, Barbagli testified the license plate number typed in rental agreement was JDT6711, rather than the actual license plate number JGT6711. Because of this discrepancy, the officer considered the registration to be defective even though the model, make, and color of the rental car were correctly identified in the rental agreement. The only anomaly between the rental agreement and the actual vehicle was the letter “D” rather than the letter “G” on the license plate. Barbagli never called dispatch about the license plate discrepancy, never asked defendant to produce additional documentation to clarify the discrepancy, and did not contact the rental agency regarding the license plate discrepancy.

When checking defendant’s driver’s license, Barbagli discovered the license was suspended and defendant had an open child support warrant. Barbagli asked defendant to step out of the car and placed him under arrest for the open warrant. Barbagli then searched defendant incident to arrest and discovered a large sum of cash.

After arresting defendant, Barbagli reread the documentation provided by defendant. Due to the one-letter discrepancy regarding the license plate number, Barbagli determined defendant failed to provide a valid registration. Based on defendant’s failure to produce a legal registration, Barbagli conducted a “credentials search” of the car. Barbagli admitted the car had not been reported stolen before he conducted the credentials search. Even though the rental agency listed its telephone number and other contact information, Barbagli did not contact the agency to confirm the vehicle’s registration. Because defendant was under arrest, defendant was not permitted to contact the rental company to clarify the registration information.

Barbagli searched the center console and visors for credentials, but found no additional documentation for the car. Barbagli then used a key he found in the center console to unlock the glove compartment. Inside the glove box, Barbagli discovered a loaded gun. After seizing the gun, the officer had the vehicle towed to the police impound lot.

Barbagli testified on direct examination that he returned the rental agreement and pamphlet to the glove compartment before it was towed to the police impound lot. Barbagli testified that he did not conduct an inventory search of the vehicle after it was impounded. He was unaware whether such a search was conducted by anyone else.

On cross-examination, defense counsel asked Barbagli why his police report indicated “a vehicle inventory search as per [police] department[] guidelines.” Barbagli responded he “must have forgotten” he performed an inventory search. Barbagli explained he conducted a search of the car limited to the console, visors, and glove compartment, and stopped his search after he found the gun.

No inventory paperwork was presented at the suppression hearing. Defendant believed the rental agreement and rental pamphlet were in the car when it was impounded. Defendant was unable to confirm his belief without an inventory list provided by the police.

A rental agency representative testified at the suppression hearing related to defendant’s rental of the car. The agency representative could only locate the computer-generated contract for the car. He confirmed the contract listed a white Dodge Charger bearing Pennsylvania license plate JGT6711 was rented to defendant. The company had no record of any vehicle bearing the license plate JDT6711. The witness explained the computer-generated contract was not the same document that would have been given to defendant. According to the agency representative, the customer receives a shorter rental agreement with data from the agency’s computer-generated contract. The rental agreement is a one-page document, listing the customer’s name, driver’s license number, vehicle make, model, and color, and license plate number. The rental agreement provides a phone number for the local rental office. In addition, the form provides a “law enforcement hotline.”

The rental agency representative further testified it was against company policy to place vehicle registration cards in its rental cars in the event the cars were stolen. The agency considers the rental agreement to be proper evidence of the vehicle’s registration. The rental agency witness also testified the company’s policy is to place insurance information in the glove compartment of its rental vehicles.

The rental agency witness was unable to locate a copy of the actual rental agreement provided to defendant for the white Dodge Charger. However, the witness produced a rental agreement signed by defendant on March 14, 2014, for a red Chevy Malibu with a South Carolina license plate. The witness attempted to explain why there was another rental agreement signed by defendant on the same date he rented the white Dodge Charger. The judge did not allow the testimony because the witness lacked personal knowledge regarding defendant’s signed paperwork.

Defendant also testified during the suppression hearing. According to defendant, he reserved a red Chevy Malibu. When defendant arrived at the local rental office, the agency printed a rental agreement for the Chevy Malibu, and defendant signed the document before he inspected the car. Upon inspecting the Chevy Malibu, defendant felt there was something wrong with vehicle and asked to rent a different car. The rental agency offered defendant a white Dodge Charger, and he accepted and signed a rental agreement for that car. Defendant testified he was given a copy of the rental agreement for the white Dodge Charger.

Defendant further testified he had no personal automobile insurance. He declined the additional insurance coverage because he believed the rental agency provided basic insurance coverage for its rental cars.

Barbagli testified defendant initially refused to provide the requested documentation, but eventually gave him a “blank” form that appeared to be “a pamphlet for the rental.” Barbagli stated the pamphlet lacked information describing or identifying the vehicle. The officer admitted he did not scrutinize the blank pamphlet and did not review the pamphlet’s information to determine if the document constituted defendant’s driving credentials. According to defendant, Barbagli rejected the rental agency pamphlet and asked for more specific driving credentials. Defendant testified Barbagli then asked for the rental agreement, which defendant provided.

We review a motion judge’s factual findings in a suppression hearing with great deference. State v. Gonzales, 227 N.J. 77, 101 (2016). In our review of a “grant or denial of a motion to suppress[,] [we] 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. Gamble, 218 N.J. 412, 424 (2014). We defer “to those findings of the trial judge which are substantially influenced by his [or her] 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)). The trial court’s legal conclusions are entitled to no special deference, and are reviewed de novo. State v. Jessup, 441 N.J. Super. 386, 389-90 (App. Div. 2015).

The Fourth Amendment to the United States Constitution and Article I of the New Jersey State Constitution protect people from “unreasonable searches.” U.S. Const. amend. IV; N.J. Const. art. I, § 7. The hallmark of these constitutional provisions is reasonableness. State v. Bruzzese, 94 N.J. 210, 217 (1983). A warrantless search is presumed to be unreasonable, and therefore invalid; “[h]ence, the State must prove the overall reasonableness and validity of [a warrantless] search.” State v. Valencia, 93 N.J. 126, 133 (1983). A warrantless search may be found reasonable if the State proves, by a preponderance of the evidence, the search falls within one of the “well- delineated” exceptions to the warrant requirement. Elders, 192 N.J. at 246 (quoting State v. Pineiro, 181 N.J. 13, 19 (2004)).


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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