                        NOT FOR PUBLICATION WITHOUT THE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 only binding 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-3024-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANDRE T. LINDSEY, a/k/a
ANDRE T. LIDSEY and ANDRE
LINDSEY,

     Defendant-Appellant.
_____________________________

              Submitted September 21, 2016 – Decided August 18, 2017

              Before Judges Fuentes and Simonelli.

              On appeal from the Superior Court of New
              Jersey, Law Division, Union County, Indictment
              No. 13-10-0922.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Jaime B. Herrera, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Jennifer E. Kmieciak,
              Deputy Attorney General, of counsel and on the
              brief).

PER CURIAM
       On October 31, 2013, a Salem County grand jury returned

Indictment No. 13-10-0922, charging defendant Andre T. Lindsey

with   fourth    degree    possession       of     marijuana    with   intent    to

distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12); third

degree possession of marijuana with intent to distribute within

1000 feet of school property, N.J.S.A. 2C:35-7; second degree

possession of marijuana with intent to distribute within 500 feet

of a public park, N.J.S.A. 2C:35-7.1; second degree unlawful

possession      of   a   firearm,       N.J.S.A.    2C:39-5b;    second    degree

possession of a firearm in the course of committing a drug offense,

N.J.S.A. 2C:39-4.1a; and third degree receiving stolen property,

N.J.S.A. 2C:20-7.

       After the court denied his motion to suppress the evidence

supporting the charges in Indictment No. 13-10-0922, defendant

entered into a negotiated agreement with the State in which he

pleaded guilty to fourth degree possession of marijuana with intent

to distribute and second degree unlawful possession of a firearm.

The State agreed to dismiss the remaining counts of the indictment

and recommend the court sentence defendant to an aggregate term

of five years, with three years of parole ineligibility.                        The

State also agreed to recommend that the court permit defendant to

serve this sentence concurrent to a separate three-year term the



                                    2                                     A-3024-14T3
court imposed under Indictment No. 14-2-0143.                  Defendant is not

appealing his conviction under Indictment No. 14-2-0143.

     On December 19, 2014, the court sentenced defendant to a term

of five years with three years of parole ineligibility on the

charge of second degree unlawful possession of a firearm. However,

the judge did not impose a separate sentence on the charge of

fourth degree possession of marijuana with intent to distribute.

The Judgment of Conviction (JOC) also erroneously states the court

imposed a five-year term on this fourth degree offense.                         Both

parties agree that even if we affirmed the trial court, a remand

is required to permit the trial judge to sentence defendant on the

charge of fourth degree possession of marijuana with intent to

distribute and thereafter amend the JOC accordingly.

     Pursuant to Rule 3:5-7(d), defendant appeals from the trial

court's order denying his motion to suppress the evidence seized

from the trunk of his car by officers from the Plainfield Police

Department.       Relying    on    State    v.   King,   44   N.J.    346   (1965),

defendant claims the police officer at the scene coerced him into

signing the consent to search form by telling him the police would

tow his car if he refused.              Defendant also argues the police

officers    at    the    scene   violated    his   rights     under   the    Fourth

Amendment    of    the    United   States    Constitution      and    Article      I,

paragraph 7 of the New Jersey Constitution by failing to make any

                                    3                                       A-3024-14T3
effort to obtain an electronic search warrant, as required by the

prevailing legal standards at the time.

      In response, the State admits that the police officer at the

scene told defendant that if he did not sign the consent to search

form, the vehicle would be towed to the Plainfield Police Station

and kept there until and a search warrant could be obtained.           The

State also agrees that King established the relevant standard for

determining whether defendant made a voluntary and knowing waiver

of his rights when he signed the consent to search form.               The

State argues, however, that the trial judge correctly applied the

Court's holding in King to find that defendant was not coerced

into signing the form.

      The State also argues the trial judge correctly applied the

then-prevailing factors under State v. Pena-Flores, 198 N.J. 6,

29   (2009),   to   conclude   that   exigent   circumstances   made    it

impractical for the officers at the scene to obtain an electronic

search warrant.       The State argues the motion judge's factual

findings in support of this conclusion are well supported by the

record developed at the evidentiary hearing, and are thus binding

on this court.      See State v. Elders, 192 N.J. 224, 244 (2007).

      After reviewing the evidence presented at the motion hearing,

we affirm.     In reaching this conclusion, we emphasize defendant

did not challenge the propriety of the initial motor vehicle stop.

                               4                                 A-3024-14T3
                                  I

     The evidence presented by the State to uphold the warrantless

search of defendant's car came entirely from the testimony of

Sergeant   Christopher     Sylvester   of   the   Plainfield    Police

Department, Narcotics Division.    Sylvester testified that on July

22, 2013, he was the supervisor of the Narcotics Division and was

assigned to a "Backup Takedown Unit" to support Detective Reginald

Johnson "who was conducting an undercover narcotics surveillance

in the west end of the city[,]" an area encompassing Myrtle Avenue

and Rock Avenue.   Sylvester described this area as "a residential

[and] business area, a more quiet area of the city, but a . . .

high narcotic[s]-dealing area."

     There were two other Backup Takedown Units working with

Sylvester that day.      Each Unit consisted of two detectives who

communicated using cellular phones with a "push to talk" feature

similar to "the old Nextels."     Sometime during the surveillance,

Johnson advised Sylvester and the two other Units that he "had

just witnessed a possible narcotics transaction between . . .

three individuals in a BMW and two individuals in a Ford." Johnson

"wanted both vehicles stopped[] . . . and further investigated for

any possible narcotic[s] activity."

     Sylvester responded to the intersection of Rock Avenue and

Myrtle Avenue where two detectives from one of the Backup Takedown

                              5                                A-3024-14T3
Units had stopped the BMW.   When Sylvester arrived, the detectives

at the scene "already had all three individuals of the BMW removed

from the vehicle, placed in handcuffs, and . . . seated on the

curb[.]"    Sylvester   testified    that   Detective   Elias    Muhammad

advised him "he had smelled . . . raw marijuana emanating from

either one of the individuals or from inside of the . . . BMW."1

     When Sylvester asked the three handcuffed individuals seated

on the curb who owned the BMW, defendant said he owned the car.

According to Sylvester, when he requested defendant to produce the

vehicle's registration and proof of insurance card, "he told me

they were somewhere inside the vehicle, but he wasn't sure [where]

at the time."    The police officers later found these documents

behind the driver-side visor.       Sylvester testified he "attempted

to open" the car's glove box, but found it was locked.          Sylvester

explained he did this because "[t]ypically people keep their

registration and insurance cards in the glove box."             Defendant

informed Sylvester the glove box was not locked, "but it needed

to be jimmied open because the mechanism had been broken, or

something to that extent."



1
 Despite this nebulous description of alleged criminality and the
absence of any other information supporting a finding of probable
cause to arrest defendant on a specific charge at this point in
time, defendant has not challenged the propriety of the motor
vehicle stop, his removal from his car, and/or his handcuffed
detention.
                            6                             A-3024-14T3
     According to Sylvester, when he asked defendant if he could

search the interior of the car, defendant "said he didn't have a

problem with it and he said go ahead."       A search of the BMW's

interior did not uncover any contraband, so Sylvester "escorted

Mr. Lindsey . . . to the rear of the vehicle and asked him if he

was willing to sign a [c]onsent to [s]earch the trunk form."2

Sylvester testified that defendant "agreed to sign the form."

Sylvester next described how he obtained defendant's consent to

search the trunk of the car:

          PROSECUTOR: Sergeant, when you provided the
          form to the defendant what, if anything, did
          you say to him?

          A. I . . . asked him and . . . he said he
          would and I said he did not have to sign it
          . . . but I informed him if he didn't[,] I
          would be towing his vehicle to police
          headquarters and would be applying for a
          search warrant.

          PROSECUTOR: And Sergeant, when you said that
          to the defendant[,] how did you say it?

          A. Just like I said it right now, very calmly.

          PROSECUTOR: Sergeant, what was his response?

               . . . .

          A. He . . . asked me if he had . . . signed
          the form and consented to the search if I would
          not tow the car, and I said we would be leaving
          the car on the scene if he agreed to search
          on scene.

2
  The State does not dispute that defendant was in handcuffs when
Sylvester asked him this question.
                            7                             A-3024-14T3
       Sylvester testified that he filled out the standard consent

to search a motor vehicle form and handed defendant a pen to sign

it.     Defendant allegedly read the form, wrote his name where

indicated, and signed it.            According to Sylvester, as soon as

defendant signed the form he "looked at me and said I'm gonna

[sic] tell you what's in the vehicle, what's in the trunk."                When

Sylvester asked him to explain, defendant allegedly said: "there's

a gun and some weed."          Sylvester testified that he opened the

BMW's trunk with the key and immediately saw "a small handgun" and

a "Clorox Bleach . . . hide-a-can3 that was open and had a couple

of bags of marijuana in it."

       Citing State v. Johnson, 68 N.J. 349, 354 (1975), the motion

judge acknowledged that when the State "seeks to rely on consent

as    the   basis   for   a   proper   search,   it   has   the   burden    of

demonstrating that the consenting individual had knowledge that




3
    As Sylvester explained:

             [A] [h]ide-a-can is something that's made to
             look to the . . . naked eye as a household
             product[,] such as . . . a can of soda, a can
             of water, [or] a . . . spray can[,] [and]
             . . . looks exactly like what you would have
             normally, but . . . will usually twist open
             . . . and inside is a compartment to hide
             anything you need.

                                 8                                   A-3024-14T3
he had a choice to withhold consent."       In upholding the validity

of the consent, the judge found:

          Here, Mr. Linsey was the driver of the vehicle
          so he had authority to consent to the search.
          At the time of his consent, he was under arrest
          and placed in handcuffs. The defense suggests
          that the detectives threatened the defendant
          by telling him that his car was going to be
          towed and confiscated due to use and narcotics
          trafficking if he did not sign the consent
          form and a warrant was imminent.

          With that in mind, . . . the State argues, and
          this court finds more credible, that Sergeant
          Sylvester asked defendant for consent to
          search the vehicle after not being able to
          locate the vehicle registration in the locked
          glove compartment; at which point, Sergeant
          Sylvester asked defendant if there was any
          contraband in the vehicle.      The defendant
          replied he could search the car if he wanted
          to.     Sergeant Sylvester then asked if
          defendant would sign a permission to search
          form. The defendant agreed to sign the form
          and Sergeant Sylvester filled out the form and
          the defendant signed it.

          At this point, the defendant told the sergeant
          that there was weed and a gun in the trunk.
          Further, even if the detectives did threaten
          to have the car towed and get a warrant, these
          are not unlawful threats as the detectives
          were well within their authority to tow the
          car or obtain a warrant.     Given the signed
          permission to search form and based on the
          totality of the circumstances, the [c]ourt
          finds that knowing and voluntary consent was
          given by the defendant to the sergeant to
          search the vehicle.

     Citing   Pena-Flores,   which   the   motion   judge   acknowledged

established the then-prevailing legal standard for determining the

                              9                                  A-3024-14T3
validity of a warrantless search of an automobile, the judge stated

the police may search a vehicle without a warrant when: (1) "the

vehicle stop is unexpected;" (2) "the police have probable cause

to believe that the vehicle contained contraband or evidence of a

crime;" and (3) "exigent circumstances exist which [make] it

.   .   .   impracticable       to   obtain   a   warrant."      The   judge   also

acknowledged      he     must    consider     the    following     factors     when

determining if exigent circumstances existed:

             [T]ime of day, location of the stop, nature
             of the neighborhood, the unfolding of the
             events establishing probable cause, the ratio
             of officers to suspects, the number of
             officers available for backup, the existence
             of confederates who know the location of the
             car and can remove it or it[s] contents,
             whether the arrest was observed by passers[-]
             by who could tamper with the car or it[s]
             contents, whether the passengers are removed
             from the vehicle and placed in a police car[,]
             . . . whether the delay that would be caused
             by obtaining a warrant would place the
             officers or the evidence at risk[,] whether
             the vehicle could have been impounded, [and]
             whether the vehicle could be left without fear
             that evidence would be destroyed.

        After this recitation, the judge found there was sufficient

evidence to deny defendant's motion to suppress. The judge neither

elaborated nor provided any further legal analysis.

        Against   this   record,      defendant     now   raises   the   following

arguments.



                                      10                                   A-3024-14T3
          POINT I

          THE CONTRABAND OBTAINED FROM THE SEARCH OF THE
          BMW MUST BE SUPPRESSED BECAUSE LINDSEY'S
          CONSENT WAS NOT KNOWING OR VOLUNTARY AND THERE
          WERE NO EXIGENT CIRCUMSTANCES JUSTIFYING A
          WARRANTLESS SEARCH.

               A. The Search of the Trunk of the
               BMW   Violated    Lindsey's    Fourth
               Amendment    Rights    Because    the
               Consent    Was   Not    Knowing    or
               Voluntary.

               B.   Because There Were No Exigent
               Circumstances     Justifying   the
               Warrantless Search of the BMW, the
               Contraband Discovered During the
               Search Must be Suppressed.

          POINT II

          THE JUDGMENT OF CONVICTION INCORRECTLY STATES
          THE SENTENCE FOR COUNT ONE AND MUST BE
          CORRECTED.

     In State v. Witt, 223 N.J. 409 (2015), the Supreme Court

overturned   Pena-Flores,   but   made   clear   that   its    decision

constituted a "new rule of law and will be given prospective

application from the date of this opinion."      Id. at 450.   Because

this case predates Witt, the principles and standards established

in Pena-Flores apply.   However, we are satisfied that defendant's

decision to consent to the search of the trunk of his car obviates

the need to determine whether the detectives could have secured

an electronic warrant consistent with Pena-Flores.



                             11                                 A-3024-14T3
       Our   analysis   exclusively   focuses   on   whether    the    motion

judge's      findings   that   defendant   voluntarily    and    knowingly

consented to the search of his car are supported by the competent

evidence in the record.          The parties agree that the Court's

decision in King sets out the principles governing this assessment.

The defendant in King was convicted of what today would constitute

first degree robbery with a weapon.4       King, supra, 44 N.J. at 348.

On appeal, we reversed the defendant's conviction "on the ground

that certain evidence introduced against him at his trial had been

obtained by an unconstitutional search and seizure since his

consent to the search had not been voluntarily given."                  Ibid.

(citing State v. King, 84 N.J. Super. 297 (1964)).

       The Supreme Court disagreed and reversed our decision.              The

Supreme Court began its analysis by noting that when an accused

consents to a search, he or she "relinquishes the Fourth Amendment

protection which prohibits unreasonable searches and seizures."

Id. at 352.     By its very nature, consent requires a voluntary act.

"To be voluntary the consent must be 'unequivocal and specific'

and 'freely and intelligently given.'        The burden of proof is on

the State to establish by clear and positive testimony that the

consent was so given.     Ibid. (emphasis added) (citations omitted).


4
    See N.J.S.A. 2C:15-1.


                                12                                    A-3024-14T3
       The King Court delineated a series of factors that a judge

should consider when determining whether the evidence clearly and

positively     demonstrated    that      defendant's    consent     was     an

unequivocally voluntary and intelligent act.

            Among   those   factors  which   courts   have
            considered as tending to show that the consent
            was coerced are: (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; (5) that
            consent was given while the defendant was
            handcuffed.

            Among   those   factors   which  courts   have
            considered    as    tending   to   show    the
            voluntariness of the consent are: (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 352-53 (citations omitted).]

       The Court emphasized that these factors were "only guideposts

to aid a trial judge in arriving at his [or her] conclusion."             Id.

at 353.    The Court also admonished appellate judges to be mindful

that   trial   judges   are   "in    a   better   position   to   weigh   the

significance of the pertinent factors[.]"           Ibid.    This deference

stems from the motion judge's opportunity to develop a "'feel' of

                                13                                   A-3024-14T3
the case" by personally hearing and seeing the witnesses testify,

something inherently denied to us as appellate judges.       Elders,

supra, 192 N.J. at 243-44.

     Applying these principles to the record developed in this

case, we are satisfied the motion judge had sufficient grounds to

find defendant voluntarily and knowingly consented to the search

of the BMW's trunk.   Sergeant Sylvester's statement to defendant

that if he did not consent to the search, the car would be towed

to a police lot and held until a warrant could be secured, was not

a threat or a statement intended to coerce defendant into giving

up his constitutional right.      This information merely conveyed to

defendant the futility of resistance under the circumstances.

Defendant made a rational, voluntary, and intelligent decision to

cooperate with the police.     Indeed, the motion judge found that

defendant told Sylvester about the presence of the handgun and the

marijuana in the trunk before Sylvester opened the trunk.

     Considering the totality of the circumstances, we discern no

legal basis to disturb the motion judge's decision.        We remand

this case, with the parties' agreement, for the trial court to

sentence defendant on fourth degree possession of marijuana with

intent to distribute, N.J.S.A. 2C:35-5a(a) and N.J.S.A. 2C:35-

5b(1), consistent with the terms of the plea agreement, and to

amend the JOC accordingly.

                             14                               A-3024-14T3
Affirmed and remanded.    We do not retain jurisdiction.




                         15                           A-3024-14T3
