                        NOT FOR PUBLICATION WITHOUT THE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-3849-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOSUE SERRANO-TORO,

        Defendant-Appellant.



              Submitted May 9, 2017 - Decided May 24, 2017

              Before Judges Sumners and Mayer.

              On appeal from the Superior Court of New
              Jersey,   Law  Division,   Monmouth County,
              Indictment No. 15-02-0252.

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

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Alissa
              Goetz, Assistant Prosecutor, of counsel and
              on the brief).
     PER CURIAM

     Defendant Josue Serrano-Toro appeals from his conviction for

third-degree       possession    of   a   controlled    dangerous      substance,

N.J.S.A. 2C: 35-10(a)(1). His appeal focuses on the court's denial

of his motion to suppress evidence of drugs found in his vehicle.

Defendant contends he did not consent to the search of his vehicle,

and the inevitable discovery rule did not apply.               We disagree and

affirm.

     We recite the facts relevant to defendant's contentions on

appeal.   The State presented evidence that a Wall Township police

officer was in a marked patrol car with his K-9 partner on November

13, 2014.    On that date, police officer Emmett Idzahl observed a

BMW with tinted front windows.            Because tinted front windows are

a violation of the State's motor vehicle code, Officer Idzahl ran

a computer search on the vehicle's license plate, which confirmed

defendant    was    the     registered    owner   of   the   vehicle     and   that

defendant's driver's license was suspended. Consequently, Officer

Idzahl activated his lights and requested defendant, who was

driving the vehicle, pull over to the side of the road.

     Officer       Idzahl    approached       defendant's    car   and    smelled

marijuana.    While requesting defendant's driving credentials, the

officer observed defendant was shaky and nervous.                  Specifically,

Officer Idzahl noted defendant's eyes were bloodshot and watery.

                                          2                               A-3849-15T2
Based   on   his   observations,   Officer    Idzahl   requested     backup

support. Sergeant Jason Costantini responded in a vehicle equipped

with a dashboard video camera, which was used to record the

interaction between the police officers and defendant.

     Based    upon   his   observations,     Officer   Idzahl    asked     if

defendant would consent to the search of his vehicle.           The request

to search the vehicle was premised on the smell of marijuana,

defendant's nervous behavior and body language, and defendant's

bloodshot eyes.       While defendant denied having drugs in the

vehicle, he admitted smoking marijuana earlier in the day.               Both

police officers explained to defendant that a search warrant could

not be obtained for at least four days.1           The police officers

further explained that if defendant consented to a search of his

vehicle and nothing was found, defendant could leave.                 After


1
  Prior to defendant signing the consent to search form, Sergeant
Costantini explained that obtaining a search warrant would take
approximately four days due to vacation and staffing issues, and
the vehicle would be impounded in that case.            Defendant
unequivocally voiced his desire to avoid impounding the car.
Because defendant's driver's license was suspended, even absent
finding suspected contraband, the vehicle may have had to be
impounded if defendant was unable to arrange for someone to drive
his vehicle home.

Judge Mellaci expressly found that the officers' comments about
the length of time it would take to obtain a warrant and where the
vehicle would be located while a warrant was obtained were not
said "as a way to subvert [defendant's] will to consent." Judge
Mellaci ruled that the officers' statements were "just a statement
of facts."

                                    3                              A-3849-15T2
considering the options defendant consented to a search of his

car.

       Officer Idzahl reviewed the consent to search form with

defendant.     The dashboard video camera in Sergeant Costantini's

vehicle recorded the proceeding with defendant's knowledge.

       After the search commenced, defendant asked whether he could

stop the search.     Sergeant Costantini explained that the search

could be discontinued, but the vehicle would be impounded while

an application was made for a search warrant.          Despite this

information, defendant never asked the officers to cease searching

his vehicle.

       Upon searching defendant's vehicle, Officer Idzahl found

suspected cocaine, a burnt marijuana cigarette, and nine "decks"

of suspected heroin.     The officers then stopped the search to

impound the car and obtain a search warrant.          Defendant was

arrested.

       Defendant moved to suppress the drug evidence at trial. Judge

Anthony Mellaci, Jr. conducted the suppression hearing.      At the

hearing, the State's evidence consisted of the testimony of Officer

Idzahl and the dashboard camera video. After considering the

evidence, Judge Mellaci denied defendant's motion.

       In an oral decision, Judge Mellaci made extensive fact-

findings based upon his review of the evidence.       Judge Mellaci

                                  4                         A-3849-15T2
concluded that the State satisfied its burden of demonstrating

probable cause to search the vehicle based upon the smell of

marijuana and Officer Idzahl's observations regarding defendant's

appearance.   Based on this determination, Judge Mellaci also ruled

there was a reasonable and articulable suspicion of contraband

supporting the officers' request for consent to search the vehicle.

     In his ruling, Judge Mellaci found the State proved, by clear

and positive testimony, that defendant's consent to search the

vehicle was knowing and voluntary.      Judge Mellaci determined that

defendant's will was not overborne and that defendant "knowingly

and intelligently and voluntarily, signed the consent form to

search despite the comments of the officers."      Judge Mellaci found

defendant understood his right to refuse to consent to the search

and the available options if he did not consent to the search.

     In   reviewing   the   video   recording,   Judge   Mellaci   noted

defendant and the officers were calm and "matter of fact."         In the

video recording, it appeared to the judge that defendant was aware

the car would be searched, and hoped the drugs would not be

discovered during a brief roadside search.       Because defendant was

not under arrest when he consented to the search of his vehicle,

did not refuse consent prior to giving his consent to search, and

was not threatened by the officers stating they would seek a

warrant, the judge determined the State proved the voluntariness

                                    5                          A-3849-15T2
of defendant's consent to search the car.       Additionally, he stated

the consent to search form was read to defendant in its entirety,

and defendant was advised that he could refuse to consent to search

the vehicle.    Moreover, the judge found defendant's signature on

the consent to search form negated any argument of coercion.

     Judge     Mellaci    rejected   defendant's    argument   that    the

officers' statements were intended to coerce his consent to search

the vehicle.    He concluded the officers' statements to defendant

were factually accurate and not designed to "subvert [defendant's]

will to consent."

     Because    Judge    Mellaci   concluded   defendant's   consent   was

voluntary, he denied the suppression motion.        The judge also ruled

that even if defendant's consent to the search was not voluntary,

under the inevitable discovery doctrine, the drugs would have been

found during a search conducted pursuant to a search warrant.

     On appeal, defendant asserts the following arguments:

          POINT I

          BECAUSE DEFENDANT DID NOT GIVE VOLUNTARY
          CONSENT, THE SEARCH OF HIS VEHICLE
          VIOLATED THE FOURTH AMENDMENT AND THE
          FRUITS OF THE SEARCH MUST BE SUPPRESSED.

          POINT II

          THE DRUGS WERE INADMISSIBLE BASED ON THE
          INEVITABLE DISCOVERY DOCTRINE BECAUSE
          THE STATE FAILED TO PROVE BY CLEAR AND
          CONVINCING EVIDENCE THAT A VALID SEARCH

                                     6                           A-3849-15T2
           WARRANT FOR    THE   CAR       WOULD     HAVE   BEEN
           GRANTED.

     In reviewing a motion to suppress evidence, we defer to the

factual and credibility findings of the trial court, "so long as

those findings are supported by sufficient credible evidence in

the record."     State v. Handy, 206 N.J. 39, 44 (2011) (quoting

State v. Elders, 192 N.J. 224, 243 (2007)).                   "[A]n appellate

tribunal must defer to the factual findings of the trial court

when that court has made its findings based on the testimonial and

documentary    evidence   presented       at   an    evidentiary   hearing   or

trial."    State v. Hubbard, 222 N.J. 249, 269 (2015).              We accord

deference to the trial court "because the 'findings of the trial

judge . . . are substantially influenced by his opportunity to

hear and see the witnesses and to have the "feel" of the case,

which a reviewing court cannot enjoy.'"             State v. Reece, 222 N.J.

154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471

(1999)).

     Because the trial judge's ruling was based, in part, upon the

video recording from a dashboard video camera, we set forth the

standard of review governing video recordings.              While an appellate

court may view the same video recording as the trial court, an

appellate court may not substitute its evaluation of the video

recording particularly where the trial court's determination on


                                      7                               A-3849-15T2
the motion is also based on the judge's opportunity to hear and

consider live testimony.        Elders, supra, 192 N.J. at 244-45.

      We find ample support in the record for Judge Mellaci's

finding   that    defendant's    consent    to   search    his   vehicle     was

"unequivocal, voluntary, knowing, and intelligent."                   State v.

Sugar, 108 N.J. 151, 156 (1987).           First, Judge Mellaci concluded

that the State proved a "reasonable and articulable suspicion" of

criminal activity justifying the search of the vehicle based upon

the smell of marijuana and defendant's appearance.               See State v.

Carty, 170 N.J. 632, 647 (2002), modified, 174 N.J. 351 (2002).

Next, Judge Mellaci found defendant's consent was "knowing" as

defendant was told more than once that he had the right to refuse

to consent to the search of his vehicle.            See State v. Johnson,

68 N.J. 349, 354 (1975); State v. Crumb, 307 N.J. Super. 204, 243-

44 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998).                 Judge

Mellaci also determined defendant's consent was unequivocal as the

consent form was read aloud to defendant before he signed the

document.      Carty, supra, 170 N.J. at 639.       Lastly, Judge Mellaci

did not find the officers' statements to defendant were coercive.

See State v. Cancel, 256 N.J. Super. 430, 434 (App. Div. 1992),

certif. denied, 134 N.J. 484 (1993) (coercion not found unless the

explanation of the choices available were "a deceptive threat made

to   deprive    [defendant]   of   the   ability   to     make   an   informed

                                     8                                 A-3849-15T2
consent.").     Judge    Mellaci   specifically   found   the   officers'

statements were factually accurate descriptions of the options

available to defendant.

     In addition to testimonial evidence, Judge Mellaci viewed the

video recording in ruling that defendant's consent to search was

voluntary.    See State v. Diaz-Bridges, 208 N.J. 544, 565 (2012).

Judge Mellaci observed that defendant was calm when the officers

requested his consent to search the vehicle.        It appeared to the

judge that defendant's behavior was "matter of fact" in analyzing

his options and then giving his consent to search the vehicle.

More importantly, in support of the "knowing" element for consent

to search the vehicle, the judge heard what the officers said to

defendant regarding his right to refuse consent, and confirmed

that the entire consent to search form was read aloud before

defendant signed the form.     See State v. Chapman, 332 N.J. Super.

452, 467 (App. Div. 2000). Absent coercive statements, the reading

and signing of a consent form is persuasive evidence of a valid

consent to search.      See State v. Binns, 222 N.J. Super. 583, 589-

90 (App. Div.), certif. denied, 111 N.J. 624 (1988).        Based on the

totality of the circumstances, Judge Mellaci properly determined

that the State met its burden by showing defendant intelligently,

voluntarily and knowingly consented to the search of his vehicle.

State v. King, 44 N.J. 346, 352-53 (1965).

                                    9                            A-3849-15T2
     We acknowledge that Judge Mellaci also denied defendant's

suppression motion based upon the inevitable discovery doctrine

exception.      We affirm Judge Mellaci's denial of the suppression

motion on the alternative ground as the judge found the State

satisfied the requirements of that doctrine to admit evidence of

the drugs found in defendant's vehicle.              Under the inevitable

discovery doctrine, "the State must show by clear and convincing

evidence that had the illegality not occurred, it would have

pursued   established    investigatory     procedures       that   would     have

inevitably resulted in the discovery of the controverted evidence,

wholly apart from its unlawful acquisition."            See State v. Dion

Robinson, __ N.J. __,__ (2017) (slip op. at 29) (citing State v.

Sugar, 100 N.J. 214, 240 (1985)).          Judge Mellaci concluded that

the drugs found during the search of defendant's vehicle at the

scene   would   have   been   found   during   a   search    of    the   vehicle

occurring elsewhere pursuant to a warrant.

     Affirmed.




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