STATE OF NEW JERSEY v. RAMON HERNANDEZ FERNANDO FERNANDEZ (2010)

By leave granted, the State appeals from the order granting defendants Ramon Hernandez and Fernando Fernandez's joint motion to suppress evidence.   Defendants were arrested and indicted for fourth degree possession of more than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(3), and second degree possession with an intent to manufacture, distribute, or dispense five or more pounds of marijuana, N.J.S.A. 2C:35-5(a)(1) and -5(b)(10).   Defendants moved to suppress the evidence found during an administrative inspection of their commercial vehicle.   During the inspection, a State Police Trooper searched the sleeping compartment of the commercial truck and then opened three duffel bags, revealing the drug contraband.

The judge held an evidentiary hearing and granted defendants' motion, concluding that a search based on consent was not authorized pursuant to State v. Carty, 170 N.J. 632, modified, 174 N.J. 351 (2002).   We conclude that even if Carty applied, the inspector had a “reasonable and articulable suspicion” of crime before seeking consent to search the sleeping compartment and the bags.   This suspicion was based on the conduct of both defendants, which provided a basis to believe that defendants were concealing contraband.   We therefore reverse and remand for trial.

These are the proofs presented by the Sate at a hearing on the motion to suppress.   On January 16, 2008, New Jersey State Police Sergeant Andrew Thomas had twenty-two years experience as a police officer, with twelve years as a commercial inspector.   That day, he pulled over a commercial truck for a random inspection.   Hernandez was driving the truck and Fernandez was his passenger.   As Thomas waved the truck over, Fernandez stared ahead and never looked at Thomas, nor did he look to the lane next to him to see if a vehicle was coming.   Hernandez cut the vehicle's wheel abruptly and narrowly missed the curb.   Although Thomas said trucks normally stop right away, this truck crept along slowly for approximately 150 feet.

As Thomas approached the truck, the passenger door opened and Fernandez quickly dropped to the ground, “barely even using the steps.”   Thomas found this unusual and grabbed the back of Fernandez's coat and told him not to move.   Thomas then peeked into the open door and saw that the driver's door was also wide open and Hernandez was not in the driver's seat.   He also noted that the curtain to the sleeper berth was closed.   Thomas thought perhaps Hernandez went into the sleeper to get his credentials, but he also feared Hernandez might come around the front of the truck and start shooting.   Thomas did not call for backup because he did not have a portable radio with him.   While still holding on to Fernandez, Thomas came around the front of the truck and saw Hernandez at the back of the trailer.   Thomas thought this was suspicious, but rationalized that sometimes truckers are “half asleep” or “confused” and that there is often a “bit of a language barrier.”   After Thomas motioned him forward, Hernandez approached and presented a Florida driver's license and stated that “everything is okay.”   Thomas noticed that Hernandez seemed “a little nervous” and was wearing open-toed slippers, socks, and no coat, despite the weather being only twenty degrees.   Hernandez's carotid artery was pulsating.

Thomas asked both men to get back into the cab of the truck.   At first, Hernandez stood at an angle with his body between Thomas and the cab, but after Thomas asked a second time both men went back into the vehicle.   These commands were all given in English and the men complied.

For his safety and to ensure no person or dog was behind the curtains, Thomas asked the men to open the curtain.   They did.   There were air fresheners hanging from the curtain and a strong “Febreeze-type” odor.   According to Thomas, drivers often like to keep the cab smelling nice, but the air fresheners can also be used for drug odor concealment.   He also noticed a can of air freshener and that the cab was unusually clean.

Thomas returned to his car to finish the inspection.   After entering the truck's “DOT number,” the computer system revealed that the trucking company had a horrible safety rating and that a “Level 1” safety inspection was required.   Thomas ran a quick check on the two men.   The Immigrations and Customs Service system revealed that Hernandez might possibly be wanted.   However, Thomas knew that Hernandez was a common last name.   Thomas called another Trooper for backup.   As both Troopers began the inspection, defendants once again jumped out of the truck.   They returned only after Thomas advised them to do so.

The Troopers proceeded with the Level 1 inspection.   Thomas testified that this entails an exterior check and an inspection of the cab to make sure everything is properly secured.   As Thomas approached the cab, Hernandez was sitting in the driver's seat watching a movie.   Thomas indicated that he wanted to inspect the interior of the cab.   Hernandez once again jumped out of the cab in a hurried manner.   This time, he went to the front of the truck, opened the hood, and said “[S]ee, it's good, it's good.   Everything's okay.”

Thomas testified that he had a “heightened suspicion that they didn't want [him] near their cab.”   Because of this suspicion, Thomas requested that Hernandez consent to a search of the truck and its contents.   Hernandez signed a consent form written in Spanish.   Thomas then searched the cabin sleeper and found two duffel bags in a curtained off storage area under the bed.   This area is often where truckers keep their emergency triangles or fire extinguishers, which, according to Thomas, are both subject to inspection.   Thomas unzipped the bags and saw greenish vegetation, which later testing proved to be fifteen pounds of hydroponic marijuana.   He also found a third duffel bag in the closet which contained more marijuana.

After hearing this testimony, the judge granted defendants' motion to suppress, finding that the facts were “not in serious dispute.”   He framed the issue as “whether ․ any officer under these circumstances[ ] would have the right to proceed after [the] inspection to request a consent to search and then go forward with a search of the sleeping compartment.”   The judge reasoned that Thomas's opening of the cab curtain was appropriate because an officer's safety is paramount and someone could have been hiding behind the curtain.   He also found no issues with the consent form itself and that “there was a consent to search.”   However, the judge concluded that the holding in Carty, supra, 170 N.J. 632, applied.   Thus, Thomas needed a “reasonable and articulable suspicion” before seeking consent to search the sleeping compartment and the bags.  Id. at 647.   The judge found that Carty was not satisfied because defendants' behavior could be “simply normal nervousness.”

The State moved for reconsideration.   The judge denied the motion, explaining that a routine safety inspection could include a cursory search of the sleeping cab to ensure items are secured safely.   However, the judge found there was no safety hazard imposed by the duffel bags and thus, any such search would have required a reasonable and articulable suspicion, which is “something beyond a hunch.”

The Salem County Prosecutor's Office moved for leave to appeal.   We granted the motion.   State v. Hernandez, M-3865-08 (App. Div. April 7, 2009.) ¹

On appeal, the State contends:

DURING THE COURSE OF AN ADMINISTRATIVE INSPECTION OF A COMMERCIAL VEHICLE, THE TROOPER OBTAINED VALID CONSENT TO SEARCH THE DUFFEL BAGS INSIDE THE SLEEPER COMPARTMENT.

A. Complete Inspection Of The Sleeper Compartment Of The Truck Fell Within The Purview Of The Administrative Search.

B. Although The Closed Duffel Bags Found In The Sleeper Compartment May Have Constituted “Personal Belongings” And Thus Fell Outside The Scope Of This Administrative Inspection, The Trooper Had Valid Consent To Search Them.

C. The Rule Of Carty Should Not Be Extended To Commercial Vehicles.

D. The Trooper Nevertheless Had A Reasonable Suspicion To Seek Consent To Search.

We do not address whether Carty, supra, 170 N.J. 632, applies.   Instead, we find that even if Carty were to apply, the Trooper had a reasonable and articulable suspicion of criminal activity before asking for consent to search.   Therefore, we reverse.

Under both the Fourth Amendment to the U.S. Constitution and Article I, Paragraph 7 of the New Jersey Constitution, “[a] warrantless search [or seizure] is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement.”  State v. Moore, 181 N.J. 40, 44 (2004) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)) (alteration in original).   One exception is when a defendant consents to the search.  State v. Hill, 115 N.J. 169, 173 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L. Ed.2d 854 (1973)).   New Jersey's Constitution requires a “higher level of scrutiny” for consent searches than the U.S. Constitution does and requires that the State prove the consent was given “knowingly and voluntarily” and that the consenter “had a choice in the matter.”  Carty, supra, 170 N.J. at 639 (citing State v. Johnson, 68 N.J. 349, 354 (1975)).

Another exception to the warrant requirement is an administrative search “of a place of business operations of a highly or pervasively regulated industry.”   State v. Hewitt, 400 N.J.Super. 376, 384 (App.Div.2008) (citing New York v. Berger, 482 U.S. 691, 702-703, 107 S.Ct. 2636, 2643-44, 96 L. Ed.2d 601, 613-14 (1987);  N.J. Transit PBA Local 304 v. N.J. Transit Corp., 151 N.J. 531, 545-46 (1997);  State v. Turcotte, 239 N.J.Super. 285, 291-97 (App.Div.1990)).   It is well-settled that commercial trucking is a highly regulated industry and thus “the government may establish a regulatory program for administrative searches of commercial trucks without a warrant.”  Id. at 385.   Unlike private homes, the expectation of privacy in closely regulated industries and commercial settings is “particularly attenuated.”  Turcotte, supra, 239 N.J.Super. at 291.

In Carty, supra, 170 N.J. at 647, our Supreme Court held that “consent 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.”   Unless there is reasonable and articulable suspicion, a consent search is unconstitutional whether it was conducted before or after the completion of a lawful traffic stop.  Ibid.

The Carty holding serves “the prophylactic purpose of preventing the police from turning a routine traffic stop into a fishing expedition for criminal activity unrelated to the stop.”  Ibid. Specifically, the Carty decision was designed to “adress[ ] concerns about the then intractable problem of racial profiling on our highways.”  State v. Domicz, 188 N.J. 285, 304 (2006).   The Court also sought to address “the widespread abuse of our ․ law that allow[ed] law enforcement officers to obtain consent searches of every motor vehicle stopped for even the most minor traffic violation.”  Carty, supra, 170 N.J. at 646.

Subsequently, Carty was extended to apply to drivers and occupants of disabled motor vehicles who call upon the police to fulfill a community caretaking function.  State v. Elders, 192 N.J. 224, 241-42 (2007).   The Court refused, however, to extend Carty 's reasonable and articulable suspicion requirement to consent searches of private homes.  Domicz, supra, 188 N.J. at 303-10.

Here, all parties agree that a Level 1 safety inspection includes an inspection of the sleeper cabin.   See State v. Fontaine-Pompa, _ N.J.Super. _ (2010) (slip op. at 22);  49 C.F.R. § 393.102 to 393.106;  Commercial Vehicle Safety Alliance, Understanding the North American Standard Inspection Program (2009), available at http:// www.cvsa.org/programs/nas.aspx. All parties also agree that the duffel bags constitute personal belongings and were not subject to the administrative inspection.   See Hewitt, supra, 400 N.J.Super. at 387 (search of driver's personal briefcase “exceeded the scope of a constitutionally permissible regulatory search”) (quoting United States v. Knight, 306 F.3d 534 (8th Cir.2002)).   Thus the issue is whether the search was valid pursuant to the consent exception to the warrant requirement.   Without deciding whether Carty, supra, 170 N.J. 632, applies to an administrative stop of a commercial vehicle, we conclude that the Trooper had reasonable and articulable suspicion of criminal activity before seeking consent to search the contents of the truck.

When reviewing a motion to suppress, we “uphold the factual findings underlying the trial court's decision so long as those findings ‘are supported by sufficient credible evidence in the record.’ ”  Elders, supra, 192 N.J. at 243 (quoting State v. Locurto, 157 N.J. 463, 474 (1999)).   We give deference to a trial judge's findings “which are substantially influenced by his opportunity to hear and see the witnesses and to have the ‘feel’ of the cases.”  Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).   The trial judge's findings should only be reversed “if they are so clearly mistaken ‘that the interests of justice demand intervention and correction.’ ”  Ibid. (quoting Johnson, supra, 42 N.J. at 162).

Here, the judge heard testimony from Sergeant Thomas during the suppression hearing, including Thomas's articulation of the “heightened suspicion” he felt based on the events that occurred during the inspection.   We disagree with the judge that defendants' behavior was “simply normal nervousness.”   The record shows that Thomas had a reasonable and articulable suspicion that the defendants were engaged in criminal behavior.   First, when Thomas waved the truck over, Hernandez cut the wheel of the truck sharply and almost hit the curb.   Rather than coming to a stop, the truck crept along slowly for quite a distance.   Next, defendants repeatedly jumped out of the cab throughout the inspection, even though they were dressed inappropriately for the cold weather and despite repeated commands to stay in the truck.   Finally, there were numerous air fresheners throughout the sleeping compartment, which was already unusually neat and clean.   This gave Thomas a reasonable basis to suspect that defendants were trying to cover up the smell of contraband.

Reversed and remanded to the Law Division, Salem County, for trial.

FOOTNOTES

FN1. The Attorney General superseded the Salem County Prosecutor's Office as counsel for the State..  FN1. The Attorney General superseded the Salem County Prosecutor's Office as counsel for the State.

PER CURIAM