SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- Respondent,

v. ANDREW BENJAMIN, Defendant

- Appellant.

_______________________

Submitted October 28, 2019

– Decided Before Judges Sabatino and Natali. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 14

- 08

- 0960. Joseph E. Krakora, P ub lic Defender, attorney for appellant (Alison S tanton Perrone, Assistant Deputy Public Defender, of counsel and on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Deputy Attorney General, of counsel and on the bri ef).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 intern et , this o pinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

- 3.

December 11, 20192 A

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After the trial court denied defendant Andrew Benjamin's motion to suppress evidence seized from his vehicle after a routine traffic stop , he conditionally pled guilty to one count of second

- degree unlawful possession of a weapon, cont rary to N.J.S.A. 2C:39

- 5(b) , and was sentenced in acc ordance with the plea ag reement. On appeal , defendant raises the following issues for our consideration :

POINT I [ DEFENDANT ] 'S CONSENT TO SEARCH THE CAR WAS NOT VOLUNTARILY GIVEN

. A. Legal Framework
B. U nder State v. King A nd T he Totality O f T he Circumstances, [Defendant ] Did Not Voluntarily Consent To The Search O f H is Car

. C. This Court Should Expand the Requirements o f King a nd Johnson T o Guide Lower Courts and Law Enforcement In Ensuring That Con sent I s Truly Voluntarily, Intelligently, and Knowingly Obtained

. 1. Law Enf orcement Should B e Required T o Scrupulously Honor A n Individual's Invocation O f H is O r H er Right N ot T o Be Subject to A Warrantless Search O r Seizure

. 2. To Ensure T hat Consent I s Kn owing A nd Intelligent, T his Court Should Require Law Enforcement T o Advise Individuals T hat T heir Decision N ot To Consent Must B e Respected A nd T hat Anything Found3 A

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- 17T3 As A Result O f The Search M ay N ot B e Used Against T hem I n A Criminal Prosecution

. 3. T o Fu r ther Ensure T hat Consent I s Knowing A nd Intelligent, T his Court Should Require Law Enforcement T o Advise Individuals A s T o Whether O r N ot T hey A re Free T o Leave A fter Refusing Consent

. Having reviewed defendant's arguments in light of the record and appl i cable law, w e affirm.
I. The following facts are gleaned from the testimony of Officer Peter Magnani of the South Plainfield Police Department (SPPD) at the suppression hearing, as well as the Mobile Video Recorder (MVR) footage captur ed during the search , both of which the trial court relied upon when rendering its June 21,
20 16 written opinion and order denying defendant's motion to suppress

. According to Magnani, on April 29, 2014, shortly before 3:00 a.m., he was on patrol in a marke d police ve hicle an d driving behind a gold Honda Accord in South P lainfield. Magnani testified that he observed the vehicle make a left turn, cross over the d ouble yellow lines, and then mak e "a very wide right into [a] hotel parking lot." As soon as the vehicle wa s parked , Magnani conducted a motor vehicle stop

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Magnani approached the driver's side to speak to defendant. T wo passengers, later identified as Khalil Huggins and Dora Miller, were also in the

car . Instead of lowering his window, according t o Magnani, defendan t "cracked his door a little bit to hand [Magnani] the insurance card." 1 Defendant, h owever, failed to produce his driver's license and vehicle registration , claim ing h e did not have them. Magnani also stated that defendant failed to s earch for t he vehic l e registration in the glove compartment or elsewhere in the vehicle , which he described as suspicious. Defendant instead provided Magnani with his name, birthday, and Social Security n umber. Magnani also testified that b efore he
retur ned to his patrol c a r, he smelled marijuana through the cracked door of the vehicle

. Magnani transmitted the information defendant provided to an individual
at dispatch who confirmed that defendant had a valid provisional New Jersey license . Within minutes, anothe r officer a rrived to provide backup. Magnani later approached the passenger side of the vehicle and Miller lowered the window to hand him the vehicle's registration. At th is point, with the window open, Magnani detected "a very strong odor of raw marijua na" and im m ediately

1 In its June 21 , 2016 written decision, the court noted that contrary to Magnani's testimony, the MVR footage demonstrate d "that the driver's door appear[ed] to swing completely open at that time."5 A

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asked defendant, Huggins, and Miller to exit and move toward the back of the vehicle. Magnani then completed a motor vehicle consent to search form whi ch he read to defendant . The consent form stated in pertinent part that :

I, [defen dant], . . . having been informed of my constitutional rights, first, that I may require that a search warrant be obtained prior to any search being made; second, that I may refuse the consent to any search; third, that anything which may be found as a res ult of this s earch which is subject to seizure can and will be seized and may be used against me in a criminal prosecution; fourth, that I may require to be present during t he search; and fifth, that I may withdraw my consent to search at any time. By con senting to t h is search, I hereby authorize . . . Magnani . . . and any other officer designated to assist to conduct a complete search of the vehicle under my control . . .

. D efendant initially expressed reluctance to consent to a search and asked Magnan i "what happ e ns if he . . . den[ies] consent." Magnani testified that he informed defendant that he was permitted to deny consent, and that if he did so, the officers would "probably end up towing the vehicle and . . . apply[ing] for a search warrant" in order to sea r ch th e vehicle at a later time.
D efendant then signed and dated the consent form which further provided that defendant's " written permission [was] given . . . voluntarily and without threats or promises of any kind being made to " him. Magna ni stated that6 A

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defendant was "eager to get it over with quickly" so he could "get into the hotel." Magnani testified that defendant did not, however, waive his right to be present for the search. Magna ni and another officer searched defendant , Huggins , a nd Miller beca u se they had a concern for their safety. According to Magnani, "[a]ny time that we do a consent search or suspect something, criminal activity is happening, we alway s search the subjects that are . . . in the vehicle prior

. . . [to] turning our backs on t hem to go in the vehicle." When the officers search ed the vehicle , t hey found a "wet wipes" container on the back seat which, according to Magnani, "was pretty much completely full of marijuana . . . [in] individual baggies" as well as "a s mall baggie wi t h bullets in it" and a pair of scissors that appeared to have hardene d marijuana on the blades. During the search, Miller asked Officer Sikanowicz to retrieve her cell phone and other items from her purse

. When doing so, Sikanowicz found a marijuana pipe in the purse . The officers then searched the trunk and discovered a white garbage bag, which Mag na ni nudged with his flashlight, reveal ing a loaded revolver. T he officers also found a skull cap and a "Bloods 2 manuscript

2 "The 'Bloods ' is a criminal gang described by the New Jersey S tate Pol i ce as a franchise with numerous smaller gangs taking the 'brand name' of the gang and7 A

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or Bible," which Magnani describe d , based on his training and experience, as a "large manu script that is given to new members of the gang" to memorize. Finally, the officers discovered a baseball bat under the front passenger seat. Once the handgun was discovered, the of ficers placed de f

endant , Huggins, and Miller under arrest and transported them to "police headquarters for processing and booking." As Magnani prepared to search defendan t a t headquarters , defendant admitted that he had marijuana in his underwear where
Ma gnani retrieved a small bag of marijuana and empty baggies, characterized by Magnani as "packaging materials." Defendant was charged in a six

- count indictment with second

- degree conspiracy, contrary to N.J.S.A. 2C:5

- 2 (count one); first

- degree gang crimin ality , contrary t o N.J.S.A. 2C:33

- 29 (count two); fourth

- degree possession of marijuana, contrary to N.J.S.A. 2C:35

- 10(a)(3) (count three); third

- degree possession of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35

- 5(a)(1) (count four); sec ond

- d egree unlaw f ul possession of a weapon, contrary to N.J.S.A. 2C:39

- 5(b) (count five); and second

- degree

adopting the gang's symbols, ideology and terminology." State v. Dorsainvil , 435 N.J. Super. 449, 455 n.5 (App . Div. 2014)

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possession of a weapon during the commission of a CDS offense, N.J.S.A. 2C:39

- 4.1(a) (count six). 3
D efendant s filed a motion to suppress all of the evid ence seized by the officers in connection with the motor vehicle stop , asserting there was no initial motor vehicle violation justifying a stop, and the police never validly obtained
consent to search the vehicle. As a result of the illegal stop, def endan t s contende d "all evidence obtained by the police . . . is either the 'poisonous tree' itself or the 'fruit of the poisonous tree.'" 4 At the suppression hearing , the State presented testimony from Magnani , as well as other evidence including the MVR . De fendant s pres e nted testimony from Lieutenant Wayne Diana, a retired SPPD officer, Janak Upadhyay, a manager at the hotel outside where the arrest occurred, Juan Tenreiro, an investigator from the Office of the Public Defender , and documentary evidence

.

3 Huggins was also charged with cou nts one t hrough six, and Miller was similarly charged , with the exception of the gang criminality offense in count two. In a February 7, 2017 opinion and order, the court dismissed count two.

4 On appeal , defendant does not challenge the constitutionali ty of th e initial stop nor does he contend that the po lice did not have probable cause to search him based on the smell of marijuana that Magnani detected emanating from the vehi cle.9 A

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Diana testified as to the standard operating procedures of the SPPD relating to the usage of MVR and officers' body microphones, and also stated that he was aware of a request to conduct a consent search on the night in question. Upadhyay testified r egard ing the hotel's surveillance system. Specifically, he stated that surveillance video footage is recycled after seven days, and that he ha d released footage to SSPD upon request in the past . He further testified that he did not remember whether the S PPD h ad requested th e footage from the night of the incident. Finally, Tenreiro testified that approximately six months after the incident, he photographed the scene of the arrest and visited the SPPD to review the evidence

. Tenreiro also described an e xperiment he conducted in which he transferred the marijuana from the evidence bag into the container seized and brought it to another room in the SPPD. Tenreiro stated that while the marijuana smelled "very pungent " in the first room, he wa s unable to sm ell the marijuana from inside the closed container in the second room. On June 21, 2016, in a forty

- five

- page written opinion and corresponding order, the court denied defendants' motion to suppress. In its written opinion, the court charact erized M agnani 's testimony to be " cr e dible [,] . . . candid[,] and responsive

. " Further , the court conclude d Magnani's "initial motor vehicle stop,10 A

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. . . approach of the vehicle, and . . . request . . . for the production of credentials were all appropriat e given the to tality of the circumst a nces . . . ."
Moreover , the court determined Magnani searched defendant "as a result of the probable cause established by the purported plain smell of raw marijuana."
T he court noted , however, "clear inconsistencies" between Magna ni's testimony and the M V R footage. 5 For example, the court stated that in the MVR footage, the driver's door "appear[ed] to swing completely open" at the time Magnani testified that it was "cracked." The court nevertheless found Magnani's testimony to be "credible[,] and attrib u te[d] the inconsistent testimony to the loss of memory that results from the passage of time." Given the inconsistencies, however, the court "weigh[ed] the MVR footage more heavily than . . . Magnani's sworn statem ents more than one year after the incide n t." T he court determined that both Magnani's testimony and the MVR footage "support[ed] the contention that [Magnani] experienced an overwhelming smell of marijuana . . . which prompted him to demand that the [occ upants] exit t he vehicle," and that Magn a ni's search of defendant was justified.

5 When making its f actual findings, the court acknowledged that Magnani failed t o turn on the MVR prior to the initial traf fic violation, and also did not power on his body microphone for the first fifteen minutes of the encounter.11 A

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Finally , the court concluded "that Magnani obtained valid consent to search the vehicle . . . from [d]efendant . . . ." Initially, the court noted that it was "troubled by the ineffective use of the MVR . . . techn o logy," such as the failure s by Magnani to memorialize the initial traffic violation on the recordi ng and power on his body microphone for the first fifteen mi nutes of the incident. Considering the totality of the circumstances, however, the court determi n ed that defendant "gave a valid and [voluntary] consent to have his vehicle searched by the officers " because he "asked questions regarding the scope of the search" and po ssessed "a clear understanding of the circumstances. " In doing so, the court also f o und Magnani's statement that he would tow defendant's vehicle and apply for a warrant to be "neither threatening nor coercive, but merely an accurate description of future events." As noted , defendant pled guilty to count five, second

- degree unlawful
pos s ession of a weapon

. C onsistent with the plea agreement, the court sentenced defendant to a five

- year term of incarceration with a forty

- two

- month period of parole ineligi bility, pursuant to the Graves Act, N.J.S.A. 2C:43

- 6(c), m andatory fines and fees, a n d dismiss ed the remaining charges. This appeal followed.
II. Defendant first argues that the court committed error in denying his12 A

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motion to suppress because his consent to search the vehicle was not voluntary. Specifically, he maintains the court faile d to analyze properly the factors enumerated in State v. King , 44 N.J. 346 (1965), when it concluded that his consent was voluntary u nder the totality of the circumstances. In this regard , he argues that the court did not conside r that defendant was "alre a dy arrested" when he gave his consent, and that he "never affirmatively assisted the police officers." Defendant similarly contends that the court failed to acknowledge that defendant knew "that the search would result in the di scovery of marijuana and t h e firearm," which demonstrate d his consent was coerced . He further asserts that Magnani's refusal to accept his initial denial of c onsent rendered the consent involuntary. Finally, defendant argues that Magnani's statement that he would tow the vehicle a nd apply for a search warrant if defendant denied consent was not "a fair prediction of events that would follow," State v. Cancel , 256 N.J. Super. 430, 434 (App. Div. 1992), but rather, a "situation . . . instinct with coercion, " Bumper v. North Carolina , 391 U.S. 543, 550 (1968). We disagree. Generally, " a guilty plea represents a break in the chain of events" and prohibits a defendant from appealing any non

- jurisdictional defects "that occurred prior to the entry of the guilty plea." Tollett v. Hender s on , 411 U.S. 258, 267 (1973); see also State v. Taylo r , 140 N.J. Super. 242, 244

- 45 (App.13 A

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Div. 1976). The denial of a motion to suppress evidence, however, is an exception to this rule and "may be reviewed on appeal from a judgm ent of conviction notwiths t anding that such judgment is entered following a [gui lty plea]." R. 3:5

- 7(d). Essentially, this rule only applies when the motion to suppress is "based on the allegation of an unlawful search and seizure and not on other ground s." Pressler & Verniero, C urrent N.J. Court Rules , cmt. 4 on R. 3:5

- 7(d) (2019) (citing State v. Greeley , 178 N.J. 38, 50

- 51 (2003))

. An appellate court reviewing a motion to suppress "must uphold the factual findings underlying the trial court's decisi on so long as those findings are supported by sufficient credible evidence in th e record." State v. Handy , 206 N.J. 39, 44 (2011) (quoting State v. Elders , 192 N.J. 224, 243 (2007)). "A trial court's findings should be disturbed only if they are so clea rly mistaken 'that the inter e sts of justice demand intervention and correction.' " Elders , 192 N.J. at 244 (quoting State v. Johnson , 42 N.J. 146, 162 (1964)). "Video

- recorded evidence is reviewed under the same standard." State v. Hagans , 233 N.J. 30 , 3 8 (2018). The court's legal conclusions, however, are reviewed de novo and
not entitled to our deference. Handy , 206 N.J. at 45. Individuals are protected from unreasonable searches and seizures under the Fourth Amendment of the United States Constitut ion and Article I,14 A

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Paragraph 7 of the New Jersey Constitution. U.S. Const. amen d. IV; N.J. Const. , art. I, ¶ 7. While "[w]arrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions," there are a "few well

- delineated ex c eptions to the warrant requirement," including va lidly obtained consent to search. State v. Pineiro , 181 N.J. 13, 19 (2004) (quoting State v. Maryland , 167 N.J. 471, 482 (2001)). "Implicit in the very nature of the term 'c onsent' is the requirement of

vo l untariness." King , 44 N.J. at 352. Accordingl y, "consent must be 'unequivocal and specific' and 'freely and intelligently given.'" Ibid. (quoting Judd v. United S tates , 89 U.S. App. D.C. 64, 66 (D.C. Cir. 1951)).
In K ing , the New Jersey Supreme Court l isted the following nonexhaustive factors ten ding to indicate coerced consent:

(1) that consent was made by an individual already arrested

. . . ; (2) that consent was obtained despite a denial of guilt

. . . ; (3) that con sent was obtained only after the a c cused 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 whi le th e defendant was handcuffed . . . . [ Id. at 352

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T he King c ourt also listed the following opposing factors suggesting that a defendant's consent was voluntary : " (1) that consent was given where th e accused had reason to believe th a t the police would find no contraband

. . . ; (2) that the defendant admitted his guilt before consent

. . . ; and (3) that the defendant affirmatively assisted the police officer s . . . . " Id. at 353 (citations omitted). The Court, however, acknowledged t hat "[e]very case necessarily depends u pon its own facts," and that "the existence or absence of one or more of the above factors is not determinative of the issue." Ibid. Thereafter, in State v. Johnson , 68 N.J. 349, 353

- 54 (1975), our Supreme Court hel d that "where the State seeks to justi fy a search on the basis of consent," an "essential element" of its burden to show that consent was voluntary "is knowledge of the right to refuse consent." The Johnson c ourt, howev er, did not require the police "to a d vise the person of his right to refus e to consent to the search" in a "non

- custodial situation." Id. at 354. Rather, it merely required the State to demonstrate "knowledge on the part of the person involved that he ha d a choice in the matter." Ibid.
In State v. Carty , 170 N.J. 632, 646 ( 2002), the c ourt noted that "the Johnson standard has not been effective in protecting our citizens' interest against unreasonable intrusions when it comes to suspicionless consent s earches16 A

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following valid motor vehicle s tops." T he Carty c ourt explained that "consent searches following valid motor vehicle stops are either not voluntary because people feel compelled to consent for various reasons, or are not reasonable because of the detention associated with obtaining an d executing the cons ent search." Ibid. Accordingly, it "expand[ed] the Johnson . . . standard and [held] that unless there is a reasonable and articulable basis beyond the initial valid motor vehicle stop to continue the detention after completion of the valid traffic stop, any further detention to effectuate a consent search is unconstitutional." Id. at 647. After considering the record in light of King , Carty , and Johnson , w e reject defendant's claim that the c ourt im properly considered the King factor s or that his co nsent to search the vehicle was not voluntary

. In this regard, although the court acknowledged that defendant initially refused consent and that the search resulted in a seizure of contraband that defendant "must have known would be discov e red," it also r ecognized that "the King factors are only guideposts." Further, the court noted that a t the time defendant consented to the

se arch, he was not yet handcuffed, and he was informed multiple times of his right to refuse consent. Rather than r igidly evaluati ng and weighing the King factors, the court properly determined that "under the totality of the17 A

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circumstances . . . [d]efendant gave . . . valid and voluntary consent" to the search because he "aske d questions regarding the scope of the sea r ch . . . and

ev entually provided consent with a clear understanding of the consequences." We also reject defendant's claim that the court incorrectly c haracterized Magnani's statement that if defendant refused c onsent, he "would tow [the] vehicle and appl y for a search warrant " as "neither threatening nor coercive, but merely an accurate description of future events." Defendant argues that Magnani's statement "amou nted to an 'announce[ment] in effect that [defen dant] had no right to resist the search . .

. .'" (quoting Bumper , 391 U.S. at 550). We disagree.
In Bumper , the defendant's family member consented to a search of a home based on a misrepresentation by the police that they had a search warrant. Bumpe r , 391 U.S. at 546, 50. As Magnani merely inf o rmed defendant that he would "apply for a search warrant," defendant's reliance on Bumper is misplaced. Instead, we agree with the trial court that Magnani's statement was not coercive, but simply a fair pred iction of events to come in the investigation.
See Hagans , 233 N.J. at 42; Cancel , 256 N.J. Super. 430, 434

. In Hagans , an officer stopped a vehicle for a motor vehic le violation, and while waiting for the driver to provide her driving documents, smelle d burnt18 A

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marijuana in the vehicle. Hagans , 233 N

. J. at 34. The officer handcuffed the driver and placed her in the back seat of his police vehicle. Ibid. In seeking t he driver's consent to search the vehicle, the officer stated that "it would be a lot

e asier if [the defendant ] would just make things e asy," and read her the consent form. Id. at 3 4

- 35. After t he officer explained the driver's right s to refuse consent and to withdraw cons ent at any time , she refused to consent to a voluntary search of her vehicle

. Id. at 35. When the officer expresse d his intention to "apply for a search warrant [,]

. . . [which would] prolong the inevitable," the dr iver consented. Ibid. The officer then reread the consent form and the driver confirmed her consent. Ibi d. In searching the vehicle, the officer discov e red a bag of marijuana and a pistol. Ibid. The Hagans c ourt found sufficient support for the conc lusion that the driver knowingly and voluntarily consented to the vehicle search. Id. at 42. In making th is determination, it emphasized that the King fact o rs are not dispositive, as "[t]he objective of a court undertaking a voluntariness analysis is
to scrutinize ' the totality of the particular circumstances of the case .'" Id. at 42 (emphasis in original ) ( quoting King , 44 N.J. at 353). Additionally, the H agans

c ourt noted that the police "had probable cause to support the issuance of a search warrant given the odor of burnt marijuana," and therefore, the officer's19 A

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statement that a search was "inevitable .

. . was nothing more than a candid assessment of t h e likelihood that a judge would grant his application for a search
warrant." Ibid. Accordingly, "despite the presence of several of the potentially coercive King factors," the totality of the circumstanc es demonstrated that the driver's consent was volu n tary. Id. at 43.
We similarly conclude that Magnani's statement that he would " probably end up towing the vehicle and . . . apply [ing] for a search warrant , " like the officer's statement in Hagans , was "'a fair prediction of events that would follow'

ra t her than 'a deceptive threat . . . .'" Id. at 42 (quoting Cancel , 256 N.J. Super

. at 434 )

. Further, u nlike in Bumper , Magnani made no representation that he was relying on a warrant to justify the sear ch. See Bumper , 391 U.S. at 546. Instead, Magnani s imply provided a "candid assessment" of the events that would follow defendant's refusal to consent to the search. Hagans , 233 N.J. at 42

. Additionally, the trial court noted that defendant consented only after asking Magnani "questions regarding the sco p e of the search." It further concluded Magnani's response provided defendant w ith "a clear understanding of the consequences," along with "an accurate description of future events." As such, and givi ng proper deference to the court's factual findings, w e find20 A

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sufficient credible evidence in the record supporting the court's determi nation that defendant provided valid and voluntary consent to search the vehicle.
III. Defendant next argues that "given t he progressive direction of New Jersey's jurisprudence in this realm," we should deviate from New Jersey's settled law relating to consent searches and "adopt the rule from our Fifth Amendment [ Miranda 6 ] jurisprudence . . . requir[ing] that once an individ ual asserts his right not to consent to a search, the p olice must immediately ce ase questioning and must not try to persuade the individual to relinquish his right." Defendant further asserts that "to ensure that an individual's waiver is knowing and inte lligent," we should "add a two

- fold requirement to Joh n son 's knowledge requireme nt: 1) that [ o ] fficers must inform individuals that a decision refusing consent will be respected; and 2) that officers must inform individuals that anything found as a result of the search can be used in evidence in a criminal
p r osecution against them." Finally, defendant contends that New Jersey courts should require police to advise individuals that have denied consent "that they are free to leave if they are, in fact, free to leave[,] as most citizens would not feel free to l e ave a scenario where [an officer ] has advised that they are

6 Miranda v. Arizona , 384 U.S. 436, 477 (1 966).21 A

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impounding the citizen's vehicle." We decline to extend New Jersey voluntary consent jurisprudence in the novel manner advocated by defendan t, particularly given our role as an intermediate appe l late court. First, as no ted, the Supreme Court in Carty recognized that "people feel compelled to consent [to searches following motor vehicle stops] for various

reasons . . . . " Carty , 170 N.J. at 6 46. Thus, to address this shortfall in protecting the interest against unreason able intrusions, the Court appropriately modified the Johnson standard to require police to have "a reasonable and articulable basis beyond the initial valid motor vehicle stop to continue the detention after completion of the val i d traffic stop

. . . . " Id. at 647. As the trial court in the present case correctly found, the police had a reasonable and articulable basis to stop defendant and continue his detention after the m otor vehicle stop based on the smell of marijuana eman a ting from defendant's veh icle. Further, it must be noted that Miranda applies only to custodial interrogations , and not to "[g]eneral on

- the

- scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact

- finding
p r o cess . . . . " Schnecklo th v. Bustamonte , 412 U.S. 218, 232 , 42 (1973) (quoting Miranda , 384 U.S. at 466) ; see also Johnson , 68 N.J. at 356 (Schreiber, J., concurring). The Schneckloth c ourt did not interpret Miranda to "extend the22 A

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need for warnings" to c onsent search es . Schneckloth , 412 U.S. at 232 (quoting Miranda , 384 U.S. at 477

- 78). Further, i n Johnson , while our Supreme Court acknowledged state courts' "power to impose higher standards" at th e state level than at the federal level, it ultimately el e cted not to appl y Miranda to consent searches, requiring only "knowledge of the right to refuse consent

. " Johnson , 68 N.J. at 353

- 54. Accordingly, given this guidance from our state's highest cour t, we decline to extend the requirement of Miranda war nin g s , and the addit ional prophylactic measures requested by defendant , to the voluntary consent circumstances presented by th is record

. Moreover , as the State correctly notes, the Fourth and Fifth Am endments are grounded i n different co nstitutional prin cipl e s . While Miranda i s based on "the need to protect the fairness of the trial itself," Schneckloth , 412 U.S. at 240 , "[t]he protections of the Fourth Amendment are of a wholly different order, and
h ave nothing whatever to do with promoting the fair asc erta i n ment of truth at a criminal trial." Id. at 242. Rather, "the Fourth Amendment protects the 'security of one's privacy against arbitrary intrusion by the police . . . .'" Ibid. (quoting Wolf v. Colorado , 338 U.S. 25, 27 (1949)). "[T]he right of ea ch i n d ividual to be let alone" is a completely separate constitutional value from "the23 A

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ascertainment of truth." Ibid. (citing Tehan v. United States ex rel. Shott , 382 U.S. 406, 416 (1966)). In sum, we conclude there was substantial, credible evidence i n the r ecord from the suppression hearing to support the court's factual findings that defendant's consent was voluntary under the totality of the circumstances. We further find no basis in the law as presently constituted, or the facts as presented in th e reco r d before us, to impose a requirement tha t the police instruct defendant s that "anything found as a result of the search may not be used against them in a criminal prosecution," or that defendants be advised "as to whether or not they are free to lea ve aft e r refusing consent." To the extent we have not specifically addressed any of defendant's arguments , it is because we conclude they are "without sufficient merit to warrant discussion in a written opinion." R. 2:11

- 3(e)(2).
Aff irmed.