SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2123-17T3

STATE OF NEW JERSEY,

Plaintiff-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, Public Defender, attorney for 

appellant (Alison Stanton 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 brief).

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NOT FOR PUBLICATION WITHOUT THE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 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

December 11, 2019
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A-2123-17T3

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, contrary to N.J.S.A. 2C:39-5(b), and was sentenced in accordance 

with the plea agreement. 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. Under State v. King And The Totality Of The 

Circumstances, [Defendant] Did Not Voluntarily 

Consent To The Search Of His Car.

C. This Court Should Expand the Requirements of 

King and Johnson To Guide Lower Courts and Law 

Enforcement In Ensuring That Consent Is Truly 

Voluntarily, Intelligently, and Knowingly Obtained.

1. Law Enforcement Should Be Required To 

Scrupulously Honor An Individual's Invocation Of His 

Or Her Right Not To Be Subject to A Warrantless 

Search Or Seizure.

2. To Ensure That Consent Is Knowing And Intelligent, 

This Court Should Require Law Enforcement To 

Advise Individuals That Their Decision Not To

Consent Must Be Respected And That Anything Found 
3

A-2123-17T3

As A Result Of The Search May Not Be Used Against 

Them In A Criminal Prosecution.

3. To Further Ensure That Consent Is Knowing And 

Intelligent, This Court Should Require Law 

Enforcement To Advise Individuals As To Whether Or 

Not They Are Free To Leave After Refusing Consent.

Having reviewed defendant's arguments in light of the record and 

applicable law, we 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 captured during 

the search, both of which the trial court relied upon when rendering its June 21, 

2016 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 marked police vehicle and driving behind a gold Honda 

Accord in South Plainfield. Magnani testified that he observed the vehicle make 

a left turn, cross over the double yellow lines, and then make "a very wide right 

into [a] hotel parking lot." As soon as the vehicle was parked, Magnani 

conducted a motor vehicle stop.
4

A-2123-17T3

Magnani approached the driver's side to speak to defendant. Two 

passengers, later identified as Khalil Huggins and Dora Miller, were also in the 

car. Instead of lowering his window, according to Magnani, defendant "cracked 

his door a little bit to hand [Magnani] the insurance card."1 Defendant, however, 

failed to produce his driver's license and vehicle registration, claiming he did 

not have them. Magnani also stated that defendant failed to search for the 

vehicle 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 number. Magnani also testified that before he 

returned to his patrol car, 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, another officer arrived 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 this point, with the window 

open, Magnani detected "a very strong odor of raw marijuana" and immediately 

1

 In its June 21, 2016 written decision, the court noted that contrary to Magnani's 

testimony, the MVR footage demonstrated "that the driver's door appear[ed] to 

swing completely open at that time."
5

A-2123-17T3

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 which he

read to defendant. The consent form stated in pertinent part that:

I, [defendant], . . . 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 

result of this search 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 the search; and fifth, that I may withdraw my 

consent to search at any time. By consenting to this 

search, I hereby authorize . . . Magnani . . . and any 

other officer designated to assist to conduct a complete 

search of the vehicle under my control . . . .

Defendant initially expressed reluctance to consent to a search and asked 

Magnani "what happens 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 search the vehicle at a later time.

Defendant 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. Magnani stated that
6

A-2123-17T3

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.

Magnani and another officer searched defendant, Huggins, and Miller

because 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 always search the subjects that are . . . in the vehicle prior . . . [to] turning

our backs on them to go in the vehicle." When the officers searched the vehicle, 

they 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 small baggie with bullets in it" and a pair of scissors that 

appeared to have hardened 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 Magnani nudged with his flashlight, revealing a 

loaded revolver. The officers also found a skull cap and a "Bloods2 manuscript 

2

 "The 'Bloods' is a criminal gang described by the New Jersey State Police as 

a franchise with numerous smaller gangs taking the 'brand name' of the gang and 
7

A-2123-17T3

or Bible," which Magnani described, based on his training and experience, as a 

"large manuscript 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 officers placed defendant, Huggins, 

and Miller under arrest and transported them to "police headquarters for 

processing and booking." As Magnani prepared to search defendant at

headquarters, defendant admitted that he had marijuana in his underwear where 

Magnani 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 

criminality, contrary to 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); second-degree unlawful 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).
8

A-2123-17T3

possession of a weapon during the commission of a CDS offense, N.J.S.A. 

2C:39-4.1(a) (count six).3

Defendants filed a motion to suppress all of the evidence 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, defendants

contended "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. Defendants presented 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 counts one through 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 constitutionality of the initial stop 

nor does he contend that the police did not have probable cause to search him 

based on the smell of marijuana that Magnani detected emanating from the 

vehicle.
9

A-2123-17T3

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 regarding the hotel's surveillance system. 

Specifically, he stated that surveillance video footage is recycled after seven 

days, and that he had released footage to SSPD upon request in the past. He 

further testified that he did not remember whether the SPPD had requested the

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 experiment 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 was unable to smell 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 characterized Magnani's testimony to be "credible[,] . . . candid[,] and 

responsive." Further, the court concluded Magnani's "initial motor vehicle stop, 
10 A-2123-17T3

. . . approach of the vehicle, and . . . request . . . for the production of credentials 

were all appropriate given the totality of the circumstances . . . ."

Moreover, the court determined Magnani searched defendant "as a result 

of the probable cause established by the purported plain smell of raw marijuana." 

The court noted, however, "clear inconsistencies" between Magnani's testimony 

and the MVR 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 

attribute[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 statements more than

one year after the incident." The 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 [occupants] exit the vehicle," and that Magnani's search of 

defendant was justified.

5

 When making its factual findings, the court acknowledged that Magnani failed 

to turn on the MVR prior to the initial traffic violation, and also did not power 

on his body microphone for the first fifteen minutes of the encounter.
11 A-2123-17T3

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 . . . technology," such as the 

failures by Magnani to memorialize the initial traffic violation on the recording 

and power on his body microphone for the first fifteen minutes of the incident. 

Considering the totality of the circumstances, however, the court determined 

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 possessed "a clear understanding of the circumstances." In doing so, the 

court also found 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 

possession of a weapon. Consistent with the plea agreement, the court sentenced 

defendant to a five-year term of incarceration with a forty-two-month period of 

parole ineligibility, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), mandatory 

fines and fees, and dismissed the remaining charges. This appeal followed.

II.

Defendant first argues that the court committed error in denying his 
12 A-2123-17T3

motion to suppress because his consent to search the vehicle was not voluntary. 

Specifically, he maintains the court failed to analyze properly the factors 

enumerated in State v. King, 44 N.J. 346 (1965), when it concluded that his 

consent was voluntary under the totality of the circumstances. In this regard, he 

argues that the court did not consider that defendant was "already 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 discovery of marijuana 

and the firearm," which demonstrated his consent was coerced. He further 

asserts that Magnani's refusal to accept his initial denial of consent rendered the 

consent involuntary. Finally, defendant argues that Magnani's statement that he 

would tow the vehicle and 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. Henderson, 411 U.S. 

258, 267 (1973); see also State v. Taylor, 140 N.J. Super. 242, 244-45 (App. 
13 A-2123-17T3

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 judgment of 

conviction notwithstanding that such judgment is entered following a [guilty 

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 grounds." Pressler & Verniero, Current 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 decision 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 

trial court's findings should be disturbed only if they are so clearly mistaken 'that 

the interests 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, 

38 (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 Constitution and Article I, 
14 A-2123-17T3

Paragraph 7 of the New Jersey Constitution. U.S. Const. amend. 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 exceptions to the warrant requirement," including validly 

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 'consent' is the requirement of 

voluntariness." King, 44 N.J. at 352. Accordingly, "consent must be 

'unequivocal and specific' and 'freely and intelligently given.'" Ibid. (quoting 

Judd v. United States, 89 U.S. App. D.C. 64, 66 (D.C. Cir. 1951)).

In King, the New Jersey Supreme Court listed the following

nonexhaustive factors tending 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 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 . . . .

[Id. at 352-53 (citations omitted).]
15 A-2123-17T3

The King court also listed the following opposing factors suggesting that 

a defendant's consent was voluntary: "(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 353 (citations 

omitted). The Court, however, acknowledged that "[e]very case necessarily 

depends upon 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 held that "where the State seeks to justify 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 court, however, did not 

require the police "to advise the person of his right to refuse 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 had 

a choice in the matter." Ibid.

In State v. Carty, 170 N.J. 632, 646 (2002), the court noted that "the 

Johnson standard has not been effective in protecting our citizens' interest 

against unreasonable intrusions when it comes to suspicionless consent searches 
16 A-2123-17T3

following valid motor vehicle stops." The Carty court 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 and executing the consent 

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, we 

reject defendant's claim that the court improperly considered the King factors or 

that his consent 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 discovered," it also recognized that "the King factors are only 

guideposts." Further, the court noted that at the time defendant consented to the 

search, he was not yet handcuffed, and he was informed multiple times of his

right to refuse consent. Rather than rigidly evaluating and weighing the King

factors, the court properly determined that "under the totality of the 
17 A-2123-17T3

circumstances . . . [d]efendant gave . . . valid and voluntary consent" to the 

search because he "asked questions regarding the scope of the search . . . and 

eventually provided consent with a clear understanding of the consequences."

We also reject defendant's claim that the court incorrectly characterized

Magnani's statement that if defendant refused consent, he "would tow [the] 

vehicle and apply for a search warrant" as "neither threatening nor coercive, but 

merely an accurate description of future events." Defendant argues that 

Magnani's statement "amounted to an 'announce[ment] in effect that [defendant] 

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. 

Bumper, 391 U.S. at 546, 50. As Magnani merely informed 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 prediction 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 vehicle violation, and 

while waiting for the driver to provide her driving documents, smelled burnt
18 A-2123-17T3

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 the 

driver's consent to search the vehicle, the officer stated that "it would be a lot 

easier if [the defendant] would just make things easy," and read her the consent 

form. Id. at 34-35. After the officer explained the driver's rights to refuse 

consent and to withdraw consent at any time, she refused to consent to a 

voluntary search of her vehicle. Id. at 35. When the officer expressed his 

intention to "apply for a search warrant[,] . . . [which would] prolong the 

inevitable," the driver consented. Ibid. The officer then reread the consent form 

and the driver confirmed her consent. Ibid. In searching the vehicle, the officer

discovered a bag of marijuana and a pistol. Ibid.

The Hagans court found sufficient support for the conclusion that the 

driver knowingly and voluntarily consented to the vehicle search. Id. at 42. In 

making this determination, it emphasized that the King factors 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 Hagans

court 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's 
19 A-2123-17T3

statement that a search was "inevitable . . . was nothing more than a candid 

assessment of the 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 circumstances demonstrated that the 

driver's consent was voluntary. 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' 

rather than 'a deceptive threat . . . .'" Id. at 42 (quoting Cancel, 256 N.J. Super. 

at 434). Further, unlike in Bumper, Magnani made no representation that he was 

relying on a warrant to justify the search. See Bumper, 391 U.S. at 546. Instead, 

Magnani simply 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 scope of the search." It further 

concluded Magnani's response provided defendant with "a clear understanding 

of the consequences," along with "an accurate description of future events." As 

such, and giving proper deference to the court's factual findings, we find 
20 A-2123-17T3

sufficient credible evidence in the record supporting the court's determination 

that defendant provided valid and voluntary consent to search the vehicle.

III.

Defendant next argues that "given the 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 [Miranda6] jurisprudence . . . requir[ing] that once an individual 

asserts his right not to consent to a search, the police must immediately cease 

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 intelligent," we should "add a two-fold requirement to Johnson's knowledge 

requirement: 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 

prosecution 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 leave a scenario where [an officer] has advised that they are 

6

 Miranda v. Arizona, 384 U.S. 436, 477 (1966).
21 A-2123-17T3

impounding the citizen's vehicle." We decline to extend New Jersey voluntary 

consent jurisprudence in the novel manner advocated by defendant, particularly 

given our role as an intermediate appellate court.

First, as noted, 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 646. Thus, to address this shortfall in protecting 

the interest against unreasonable 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 valid 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 motor vehicle stop based on 

the smell of marijuana emanating from defendant's vehicle.

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 

process . . . ." Schneckloth 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 court did not interpret Miranda to "extend the 
22 A-2123-17T3

need for warnings" to consent searches. Schneckloth, 412 U.S. at 232 (quoting 

Miranda, 384 U.S. at 477-78).

Further, in Johnson, while our Supreme Court acknowledged state courts' 

"power to impose higher standards" at the state level than at the federal level, it 

ultimately elected not to apply 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 court, we decline to 

extend the requirement of Miranda warnings, and the additional prophylactic

measures requested by defendant, to the voluntary consent circumstances 

presented by this record.

Moreover, as the State correctly notes, the Fourth and Fifth Amendments 

are grounded in different constitutional principles. While Miranda is 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 

have nothing whatever to do with promoting the fair ascertainment 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 each individual to 

be let alone" is a completely separate constitutional value from "the 
23 A-2123-17T3

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 in the record 

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 the record before us, to impose a requirement that the police instruct 

defendants 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 leave after 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).

Affirmed.