State v. Kee
| Decision Date | 26 April 2021 |
| Docket Number | DOCKET NO. A-3793-18 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL KEE, a/k/a MIKEY, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 17-11-3227.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).
Defendant Michael Kee appeals from his judgment of conviction, challenging the denial of his motions to suppress. We affirm.
On March 1, 2017, at about 8:00 p.m., defendant, Tymera Green, Troy Brown, and Brown's cousin left a home located at Fifth and Walnut Streets in Camden, New Jersey. The group was celebrating defendant's birthday. Before getting in the car, defendant told Green that he would be right back, then walked with Brown around the corner. Green and Brown's cousin got into defendant's silver Nissan Altima and waited. About five minutes later, Green heard a gunshot moments before defendant and Brown came back to the car with their hoods pulled over their heads.
Defendant got into the driver's seat, Brown got into the front passenger's seat, and Green and Brown's cousin remained in the back. When they returned, Green said the pair was frantic and defendant drove away at a high rate of speed. After making a few turns, defendant turned to Green, gave her a handgun, and instructed her to hold it. Green secured the gun under her shirt. The vehicle was headed south on Fourth Street when it passed officers James DiMarco, Kyle Cook, and Justin Widman of the Camden County Metro Police Department.
DiMarco, Cook, and Widman were standing near the intersection of Fourth and Mechanic Streets. Each officer testified they observed the silverNissan traveling south on Fourth Street at a high rate of speed. The speed limit in the area was twenty-five miles per hour. As the vehicle passed, the officers shined their flashlights on the pavement in front of it to signal the driver to slow down. The car continued at the same rate of speed. DiMarco advised Cook and Widman, who were conducting bicycle patrols, that he was going to stop the Nissan. While walking toward his patrol car, DiMarco noticed the Nissan's brake lights activate at the intersection of Fourth Street and Atlantic Avenue, before turning left onto Atlantic. Cook and Widman testified the Nissan failed to heed the stop sign at the intersection.
DiMarco, whose car was facing away from Fourth Street, proceeded down Mechanic Street, turned right onto Broadway, and right again onto Atlantic Avenue. Cook and Widman pursued the Nissan on their bicycles. They traveled south down Fourth Street then made a left onto Atlantic. As they turned onto Atlantic, Cook and Widman saw the Nissan stop and park on the side of the road. Cook testified that defendant attempted to exit the vehicle after he parked. DiMarco also saw the silver Nissan stop and park but was dispatched to a report of a nearby shooting before reaching the car. Cook and Widman approached on their bicycles and activated their body cameras as they initiated the stop.
At the suppression hearing, the State produced video footage of the traffic stop captured by Cook and Widman. The first thing that can be heard on the video is the dispatcher requesting available officers to respond to the area of Fourth and Mount Vernon Streets. Cook is shown standing on the driver's side as he directs defendant to exit the vehicle, walk to the back, and keep his hands on the top of the car. Cook asks "why are you driving so fast?" Defendant responds that his girl and his little nephew are in the back seat.
While Widman is standing next to the front passenger window with his flashlight trained on defendant's face, the following exchange occurred:
Simultaneously, the following message can be heard over the radio:
Cook directed defendant to sit on the curb then turned to Widman and said:
Cook also asked defendant for his address, with whom he resided, and his date of birth. Defendant answered. During that exchange, the following messages can be heard over the radio:
Brown, a young black male wearing a Philadelphia Eagles hoodie, matched the description that came over the radio. Widman responded:
Defendant responded to the statement Widman made over the radio:
At this point, backup arrived. The remaining occupants were removed from the vehicle. Widman instructed Green to sit on the curb next to defendant. She testified that while seated, defendant warned her not to say anything to the police. Defendant told Green that she saw how easy it was for him to shoot someone and threatened to kill her if she told on him.
Each passenger was placed into a different police vehicle. Defendant had not been Mirandized.1 Green was placed into the back of a patrol car, uncuffed, while her purse was placed in the front. The front of the vehicle was not accessible from the back. Green testified that after about five minutes, she removed the handgun from her shirt2 and tucked it under the cushion of the backseat. She did not inform anyone about the gun. When asked why she hid the gun, Green responded
Green sat in the back of the patrol car for approximately twenty minutes before she was driven to a police station. She was not taken inside. Green remained in the patrol car for some time before she was driven to the prosecutor's office. At some point after leaving Atlantic Avenue but before reaching the prosecutor's office, Green's phone was taken from her and placed in the front of the patrol car where she could not access it. When she arrived at the prosecutor's office, Green continued to wait in the back of the vehicle for a period of time before she was eventually escorted inside and questioned for approximately two hours. While being questioned, Green allowed detectives to download several photographs from her phone. Green left the prosecutor's office at about 1:30 a.m.
The following morning, another officer was assigned the patrol car Green was placed in the night before. While performing a pre-shift inspection of the vehicle, he discovered the handgun underneath the back seat.
Defendant filed motions to suppress the roadside statements he made to the police on the night of his arrest, as well as the handgun. He argued his statements were taken while he was in custody and had not been given his Miranda warnings, therefore they must be suppressed. He also argued that thepolice had no basis to conduct the traffic stop, and that the discovery of the handgun was the product Green's illegal detention.
Evidentiary hearings were held on January 2, 2019, and January 10, 2019. DiMarco, Cook, Widman, and Green...
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