State v. Hall

• Decision Date: 28 November 1990
• Citation: 600 A.2d 1248,253 N.J.Super. 84
• Parties: STATE of New Jersey v. Dexter HALL.
• Court: New Jersey Superior Court

Page 84

253 N.J.Super. 84

600 A.2d 1248

STATE of New Jersey v. Dexter HALL.

Superior Court of New Jersey, Law Division Union County.

Nov. 28, 1990.

Raymond J. Stine and Steven J. Kaflowitz, for plaintiff (Edward J. Tucker, Acting Prosecutor of Union County, Attorney).

Robert Seelenfreund, for defendant Dexter Hall.

WECKER, J.S.C.

I. PROCEDURAL HISTORY

Defendant's Motion to Suppress was heard on June 15, 1990. Detective Louis Panarese of the Hillside Police Department testified for the State, and defendant Dexter Hall testified on his own behalf. After hearing oral argument and reviewing the parties' briefs, this court denied defendant's motion to suppress and declined to rule on defendant's oral Miranda ¹ application. The court's opinion was rendered from the bench.

This court undertook sua sponte to reconsider its decision, including the Miranda aspect. Additional written argument was submitted by each side. Upon reconsideration, the June 15 decision is vacated, the motion to suppress the "controlled dangerous substance" seized from defendant is granted and the application to suppress the use of defendant's statement is also granted. The Fifth Amendment Miranda issues are so closely intertwined with the Fourth Amendment search and seizure issues that the June 15 hearing is both necessary and sufficient to resolve all issues. Any question of notice of the Miranda application has been cured by the opportunity for additional briefing addressed specifically to the Miranda issues.

II. STATEMENT OF FACTS

A search warrant was issued for the person and apartment of Carla Foster, a co-defendant whose case was severed from defendant Dexter Hall. The warrant was based upon an affidavit establishing probable cause to believe that Carla Foster was selling CDS from her apartment. The warrant was not challenged. Two controlled buys by an informant were attested to in the affidavit. The apartment was located "on the edge" of a high crime area known for illegal drug activity. It was also known that Carla Foster lived in that apartment with her teenage daughters, who were enrolled in the local high school.

Before executing the warrant, the police had observed "a few" persons enter and leave the garden apartment building within a brief period. Transcript of June 15, 1990 Motion to Suppress (hereinafter "T.") at 5/3-11. Eight police officers, some in uniform and some in plainclothes, entered the apartment to execute the warrant. They secured four persons inside, including Carla Foster. One of Foster's daughters arrived after the search began. Detective Panarese let her in and patted her down for weapons. No weapons had been found on any of the persons in the apartment. A gun was found in a bedroom by one of the officers; however, Detective Panarese learned of that only after his encounter with defendant Dexter Hall.

Hall, who was unknown to Detective Panarese, arrived during the search with another male who was known to the Detective from a previous drug "situation". When defendant and his companion saw what was happening they tried to leave, but were stopped and brought inside by the Detective. Three other males later arrived and they too were brought inside.

Detective Panarese immediately patted down the defendant and his companion. The pat-down revealed no weapons (or other contraband) on defendant's companion and he was told he could leave. As Detective Panarese was patting down the defendant, he asked the defendant if he had "anything" on him. Defendant answered that he had some, but only "for personal use." At the same time, he produced from his pocket a dollar bill containing a small amount of cocaine. He was promptly arrested for possession of CDS.

III. DEFENDANT'S MIRANDA RIGHTS

A. The Statement

During Police Officer Panarese's initial pat-down of the defendant, the Officer asked defendant "Do you have anything on you?" The Officer admits and the defendant agrees that the question referred to drugs, and not weapons. The defendant answered "Yes, I do. I have some for personal use, coke for my personal use." T. 35/5-6; 9/8-11. The defendant then produced from his pants pocket a dollar bill containing white powder later found to be cocaine. Defendant admitted on cross-examination that he himself took the bill out, as the police officer had testified. T. 36/19-21; 37/4-6; 9/10-15.

It is undisputed that the defendant was not read his Miranda rights. Defendant was entitled to be read his rights if he was responding to a "custodial interrogation." See Miranda v. Arizona, supra; State v. Micheliche, 220 N.J.Super. 532, 536, 533 A.2d 41 (App.Div.1987) (custodial interrogation found despite defendant's voluntary appearance at police headquarters). There must be both interrogation ("express questioning or its functional equivalent") ² and custody (circumstances under which a reasonable innocent person would conclude he was not free to leave), ³ to trigger Miranda.

Whether an interrogation is "custodial" is fact sensitive. Some factors to be considered include the duration of the detention, the nature and degree of the pressure applied to detain the individual, the physical surroundings, and the language used by the police officer in posing any question to the defendant. State v. Pierson, 223 N.J.Super. 62, 67, 537 A.2d 1340 (App.Div.1988). Here the officer physically controlled defendant's movements, and was frisking and asking questions at the same time. Though it was accomplished in a relatively brief encounter, not at police headquarters, there were seven other officers in the apartment and defendant had been prevented from leaving. It is significant that the question was open-ended and by definition called for an incriminating answer. Defendant did not spontaneously volunteer; the circumstances were obviously and inherently coercive. Under the totality of the circumstances, I cannot conclude that a reasonable, innocent person would have felt free to leave at the time the defendant was asked whether he had "anything." He had attempted to leave while he was still at the door to the apartment. The officer had brought him inside, and immediately began patting him down and questioning him.

Both Pierson and State in the Interest of A.S. 227 N.J.Super. 541, 548 A.2d 202 (App.Div.1988) are distinguishable. In Pierson, the defendant was questioned initially by asking his identity and what he was doing at 2 a.m. in the parking lot of an apartment where several suspicious fires had occurred. He fit the description given by one of the victims, and the brief questioning was held to be part of an "on-the-scene" investigation rather than a custodial interrogation. In A.S. another juvenile had given the police information that A.S. had the gun they were looking for. The police had a reasonable particularized suspicion that the target of their stop was himself in possession of a dangerous weapon and may have just committed a crime with that weapon. Here, the defendant was not the target of the search warrant, was only an intended visitor to the apartment being searched. The police had no independent reason for detaining and questioning him other than his arrival on the scene. Had they stopped him at the door and asked what he was there for, that would have been a permissible investigatory detention for which Miranda warnings are not required.

This was a custodial interrogation; defendant knew he was not free to leave. The Officer brought defendant and his companion inside T. 8/7-13 and only allowed the companion to leave after searching him. T. 16/20-22. Under those conditions, defendant was entitled to Miranda warnings before being asked whether he had "anything" (meaning CDS) on him. T. 13/6-12, 41/10-23. Defendant's statement admitting possession of cocaine must be suppressed.

B. The Drugs

The drugs must be suppressed because the defendant produced the cocaine in direct response to the detective's question whether he "had anything on him." T.9/7-15; T.11/14-25. Although defendant initially claimed that the Detective went into his pocket and retrieved the bill with the cocaine, T.34/9 to T.35/11, he later admitted that he gave the bill to the officer. T.36/19 to 37/5; 39/20-40/12. The officer's credibility is enhanced while the defendant's is diminished. ⁴ Producing the bill with cocaine was a non-verbal response to the police officer's inquiry. The Appellate Division in State v. Mason, 164 N.J.Super. 1, 4, 395 A.2d 536 (1979) held:

Had defendant made an oral admission of the fact that she possessed narcotics it would not have been admissible against her because she had not been warned of her right to remain silent.... We perceive no reason why the result should not be the same when her response was of a different nature. Nonverbal responses to questions are treated in the same way as are verbal responses.... The privilege against self-incrimination extends to all acts intended to be of a testimonial or communicative character, whether in verbal or in other form.... [citations omitted].

In Mason, the defendant was asked while she was in police custody whether she had any drugs. After first saying "I don't know," she produced a bag with drugs. She had not been given the Miranda warnings. Mason is directly on point and governs the admissibility of the drugs produced by Dexter Hall. Mason also supports the suppression of defendant's statement.

Defendant argues that since the statement is inadmissible, the drugs are also inadmissible as "the fruit of the poisonous tree." That theory does not apply here. The failure to give defendant his Miranda rights violates a common law rule, and requires exclusion of the defendant's response; ⁵ however, it is not a violation of constitutional dimension. See Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222, 232 (1985); State v. Hartley, 103 N.J. 252, 271-77, 281-84, 511 A.2d 80 (1986). See also Id. at 298, 511 A.2d 80 (J. Handler, concurring in part...