                                NOT FOR PUBLICATION WITHOUT THE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-3346-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTOINE D. MCCOY,

     Defendant-Appellant.
_________________________

                    Submitted February 6, 2019 – Decided May 24, 2019

                    Before Judges Fuentes and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 17-01-0063.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Lauren Stephanie Michaels, Assistant
                    Deputy Public Defender, of counsel and on the briefs).

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (John Joseph Santoliquido, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Antoine McCoy pleaded guilty to unlawful possession of a

handgun, N.J.S.A. 2C: 39-5(b)(1), which was seized pursuant to what the State

contended was a consent search of a backpack in a vehicle in which defendant

was a passenger.1 Defendant unsuccessfully challenged that search and appeals

from an order denying his motion to suppress.2 His sole argument on appeal is:

             THE TRIAL COURT ERRED IN DENYING
             DEFENDANT'S  MOTION    TO   SUPPRESS
             EVIDENCE BECAUSE THE STATE FAILED TO
             PROVE   BY  CLEAR   AND   CONVINCING


1
   The State, in its merits brief, argues the search was justified pursuant to the
automobile exception to the warrant requirement. See State v. Witt, 223 N.J.
409 (2015). The State did not raise that exception to the trial court. We,
therefore, will not consider that argument on appeal. State v. Robinson, 200
N.J. 1, 19-20 (2009). Inexplicably, the State did not address the consent search
issue in its brief.
2
  Defendant, in his merits brief, contends "[a]ll of the evidence found in the car,
as well as all evidence later seized from [defendant's] person, as the fruits of this
unlawful search, should have been suppressed." But he also stated, "Although
there was no evidence offered at the suppression hearing, the trial judge noted
in his opinion that drugs were also found in the car, and on [defendant] when he
was searched after arrest." The record on appeal does not contain defendant's
motion to suppress; we do not know if he challenged the seizure of any evidence
other than the handgun. The motion judge's opinion did not address the seizure
of any evidence except the handgun; the order denying the suppression motion
does not specify the evidence to which the order pertained. Our review is limited
to the matters addressed by the motion judge. See Witt, 223 N.J. at 419 (noting
parties must raise an issue before the trial court to allow an appellate court to
review it); Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 539 (2002)
(noting courts should be "reluctant to review matters . . . in any case where a
record had not been fully developed by the parties in the trial courts").
                                                                             A-3346-17T4
                                         2
            EVIDENCE THAT MCCOY KNOWINGLY AND
            VOLUNTARILY CONSENTED TO THE SEARCH.

      When reviewing a motion to suppress, we "must uphold the factual

findings underlying the trial court's decision so long as those findings ar e

supported by sufficient credible evidence in the record." State v. Rockford, 213

N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)).

Appellate intervention is necessary only when the trial court's findings are

"'clearly mistaken' or 'so wide of the mark' that the interests of justice require[]

appellate intervention." State v. Elders, 192 N.J. 224, 245 (2007) (quoting N.J.

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). We exercise

plenary review of a trial court's application of the law to the facts. State v.

Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999). Applying those standards,

we determine the motion judge's finding that defendant knowingly and

voluntarily consented to the search of the backpack in the vehicle was supported

by sufficient credible evidence in the record and affirm.

      Our Supreme Court, in State v. Hagans, recognized that consent searches

have long been accepted as delineated exceptions to the warrant requirement and

recently synopsized the legal tenets that ground our analysis of this search:

            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

                                                                            A-3346-17T4
                                         3
            vehicle stop to continue the detention after completion
            of the valid traffic stop," and (2) the consent is "given
            knowingly and voluntarily[.]"          The lynchpin to
            voluntary consent "is whether a person has knowingly
            waived [her] right to refuse to consent to the search."
            The burden is on the State to prove "that the individual
            giving consent knew that he or she 'had a choice in the
            matter.'" Specifically, the consenting individual must
            have been aware of her right to refuse, before giving
            consent.

            [233 N.J. 30, 39 (2018) (citations omitted) (first
            quoting State v. Carty, 170 N.J. 632, 647 (2002); then
            quoting Carty, 170 N.J. at 639; then quoting State v.
            Domicz, 188 N.J. 285, 308 (2006); and then quoting
            Carty, 170 N.J. at 639).]

      The Court reiterated the factors, announced in State v. King, 44 N.J. 346,

352-53 (1965), that may show that consent was coerced:

            (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.

            [Hagans, 233 N.J. at 39 (alteration in original) (quoting
            King, 44 N.J. at 352-53).]

The Court also identified certain factors that may show that consent was

voluntary: "(1) that consent was given where the accused had reason to believe


                                                                        A-3346-17T4
                                       4
that the police would find no contraband; (2) that the defendant admitted his [or

her] guilt before consent; [and] (3) that the defendant affirmatively assisted the

police officers." Id. at 39-40 (second alteration in original) (quoting King, 44

N.J. at 353).

      Defendant, pointing to the King factors, argues that his "so-called consent

was an involuntary product of coercion" due to police conduct during a motor

vehicle stop precipitated by a 9-1-1 caller's report that the rear-seat passenger in

a black Hyundai containing four males brandished a gun.                According to

defendant, police spotted a black Hyundai containing defendant and two other

males one and one-half to two miles from the 9-1-1 caller's location. The police

chief and a sergeant in one car and an officer in another car stopped the vehicle.

In what the police chief described as a "high-risk car stop," three or four 3 officers

approached the vehicle with guns drawn, ordered the driver to shut off the car

and ordered all occupants to put their hands outside of the vehicle.             Each

occupant was removed from the vehicle. When defendant was removed, police

had him walk backwards toward the rear of the vehicle and handcuffed him



3
  The police chief initially said only she and the other two officers approached
the vehicle. On cross-examination she said, "I know there was definitely three,
there may have been four of us." Other officers – all totaled, approximately ten
in eight police cars – eventually arrived at the scene.
                                                                              A-3346-17T4
                                          5
behind his back. The police then ordered defendant to sit on the side of the road.

While still handcuffed, defendant was presented with the consent-to-search

form. Defendant contends these circumstances rendered defendant's consent

involuntary.

      Defendant's argument fails to take into account "the totality of the

particular circumstances of the case."      See King, 44 N.J. at 353.      Those

circumstances, as found by the motion judge, included defendant's cooperation

with the police. The police chief testified she approached the passenger side of

the vehicle during the high-risk car stop and "kept constant communication"

with defendant, the front-seat passenger, "because he was making sure he was

doing the right thing." After defendant was handcuffed and seated on the side

of the road, he asked the chief who was walking in the area, "Ma'am, can you

come over here? I want to let you know that there's a, there's a weapon in the

vehicle." After defendant clarified that the weapon was a handgun, the chief

asked if it was loaded. Defendant replied that it was. He identified the handgun

as a Ruger and said it was in his bookbag. The chief told defendant to remain

seated, adding that other officers "were going to be asking him to sign a consent

form."




                                                                          A-3346-17T4
                                        6
      Contrary to defendant's contention in his merits brief that the chief and

another officer each asked defendant to sign a consent-to-search form, the record

reveals only one officer did so. That officer testified that he completed the form

in front of defendant, read "every word" of it to him and explained it. Although

the form was not submitted into evidence at the suppression hearing, the officer

read its contents into the record:

            I have knowingly and voluntarily given my written
            consent to the search described above. I have been
            advised by Officer Stewart, badge number 107, and
            fully understand that I have the right to refuse to give
            my consent . . . to search and may depart if no other
            reason exists for detaining me. I have been further
            advised that I may withdraw my consent at any time for
            any reason and that I have the right to be present during
            the search at a location consistent with the safety of the
            police officer, myself, and other motor vehicle
            occupants.

The officer also explained to defendant that he had the right to be present during

the search. The officer acknowledged defendant was handcuffed and in custody

but stated no officer had a gun pointed at defendant while he obtained his

consent. Although the witness space on the form was left blank, the officer

testified defendant signed the form "in front of" him.

      The motion judge acknowledged "that the nature of the high-risk stop

provided conditions that create a higher burden for the State to show


                                                                          A-3346-17T4
                                        7
[defendant's] consent was voluntary." But the judge recognized that defendant

was cooperative throughout the encounter. Having found the police witnesses

credible, the judge concluded:

            This was not a situation where the officers used
            harassment and intimidation to obtain consent. Rather,
            it was a situation where even after being informed that
            there was a gun in the car, the officers operated in an
            abundance of caution and still requested that each
            individual in the vehicle sign a consent to search form.
            Further, the Court finds that the State's witnesses
            provided clear and positive testimony that the officers
            explained to [defendant], the driver of the vehicle and
            the other passenger that they had a right to refuse
            consent and to stop the search at any point.

      The motion judge heeded the King Court's instruction that the factors were

"guideposts" but "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." 44 N.J. at 353. The motion judge

considered the totality of the circumstances, including defendant's cooperative

nature, and found defendant's consent was voluntary. That finding, buttressed

by the record, followed "many decisions [that] 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.




                                                                        A-3346-17T4
                                       8
      We determine that any other argument defendant advanced, not here

addressed, to be without sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(2). We add only that defendant did not present any evidence that

his thought process in granting consent was influenced by the factors advanced

by his counsel in the merits brief relating to police encounters with African-

Americans and other minorities.

      Affirmed.




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                                       9
