What is the right at the scene of the motor vehicle stop – after arresting and handcuffing defendant – to ask him to consent to a search of his residence ??
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
In light of our remand on these grounds, we further request the motion judge to reexamine whether the police had the right at the scene of the motor vehicle stop – after arresting and handcuffing defendant – to ask him to consent to a search of his residence located several blocks away. This reexamination should proceed in light of pertinent case law, including State v. Carty, 170 N.J. 632, 635 (2002) (invalidating certain suspicionless consent searches in motor vehicle stops) and Domicz, 188 N.J. at 285 (distinguishing the context of consent to search a home provided at the home from consent to search a motor vehicle at the roadside). In light of this case law and a comparison of the present facts to those in the reported cases, the motion judge should reexamine his finding that the residence was known to police as a place of drug activity justified the police in requesting defendant’s consent and in transporting him in handcuffs there. Again, we do not prescribe or forecast the result on remand that may come from such a deeper analysis.
Several basic principles of constitutional law guide our review of this self- incrimination issue. The procedural safeguards of the Miranda doctrine attach when a criminal suspect is subject to a custodial interrogation. Oregon v. Mathiason, 429 U.S. 492, 495 (1977). “Custodial interrogation” means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. Custody does “not necessitate a formal arrest, nor does it require physical restraint in a police station, nor the application of handcuffs, and may occur in a suspect’s home or a public place other than a police station.” State v. Godfrey, 131 N.J. Super. 168, 175 (App. Div. 1974) (citations omitted). “The critical determinant of custody is whether there has been a significant deprivation of the suspect’s freedom of action based on the objective circumstances, including the time and place of the interrogation, the statusoftheinterrogator,thestatusofthesuspect,andothersuchfactors.” State v. P.Z., 152 N.J. 86, 103 (1997) (citations omitted).
The determination of whether a person was in custody is an objective one, independent of “‘the subjective views harbored by either the interrogating officers or the person being questioned.'” State v. O’Neal, 190 N.J. 601, 622 (2007) (quoting Stansbury v. California, 511 U.S. 318, 323 (1994)). Judicial assessment of whether a suspect has been placed in custody is fact-sensitive. The issue must be considered through “a case-by-case approach,” in which the totality of the circumstances is examined. Ibid. (quoting Godfrey, 131 N.J. Super. at 175-77).
Applying these standards, we respectfully disagree with the motion judge’s legal conclusion that defendant was “free to leave” and thereby not in custody, when he was asked by Officer Moreano at the traffic stop about whether he possessed anything injurious. After the police smelled marijuana in the car, defendant voluntarily informed officers that he had smoked marijuana earlier that day. Before that point in the sequence of events, defendant was not in custody. However, once defendant admitted he had smoked marijuana, coupled with the detected odor of marijuana in the car, the police had a sufficient basis to detain defendant. The police then appropriately ordered defendant out of the car. Objectively, defendant was not free to leave by the time the police ordered him to do so. No reasonable person would think otherwise. See, e.g., O’Neal, 190 N.J. at 616.
The motion judge mistakenly concluded a person in defendant’s situation would have reasonably felt free to walk away from the scene. The marijuana odor emanating from the car and defendant’s admission to the police of marijuana smoking elevated this situation beyond a “routine traffic stop.” Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
Nevertheless, as the situation at the roadside developed, the police were authorized to ask defendant if he had anything in his possession that might injure them. Such a query is authorized, even before the reading of Miranda warnings, to assure the safety of the police officers who are on the scene. See State v. Hickman, 335 N.J. Super. 623, 631-32 (App. Div. 2000) (recognizing the right of police to pose such an inquiry concerning contraband or weapons); see also State v. Toro, 229 N.J. Super. 220-22 (App. Div. 1988).
In response to Officer Moreano’s safety-oriented question about having anything that might “poke,” “stab,” or “harm” the officer, defendant chose to reply with a non-responsive admission that he had “two bundles” on his person. This admission was voluntary in the context presented.
We stress the officers did not ask defendant at the scene if he possessed any drugs. Defendant blurted out his revelation of drug possession on his own volition. His revelation was not the product of police interrogation. Instead, it was a self-initiated disclosure. No Miranda violation occurred. Consequently, defendant’s “two bundles” statement did not have to be suppressed. The statement was properly admitted at trial.