STATE OF NEW JERSEY v. MARCELO MOTA

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1361-08T41361-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MARCELO MOTA,

Defendant-Respondent.

_____________________________________________________

 

Argued April 30, 2009 - Decided

Before Judges Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-12-1666.

Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for appellant (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Paszkiewicz, on the brief).

Stephen G. Raymond argued the cause for respondent (Raymond & Coleman, LLP, attorneys; Mr. Raymond, on the brief).

PER CURIAM

By leave granted, the State appeals from an order suppressing 1) portions of defendant's post-arrest statement given to investigators from the Burlington County Prosecutor's Office; and 2) buccal swabs taken at the same time, as well as "the DNA evidence thereby obtained." The State raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN SUPPRESSING DEFENDANT'S CONFESSION AND . . . THE BUCCAL SWABS TAKEN FROM DEFENDANT FOR DNA ANALYSIS WITH HIS CONSENT AS THE INVALID FRUIT OF A MIRANDA VIOLATION.

POINT II

THE TRIAL COURT ERRED IN HOLDING THAT DEFENDANT'S DNA SAMPLE WAS NOT ADMISSIBLE PURSUANT TO THE INEVITABLE DISCOVERY DOCTRINE.

We have considered these arguments in light of the record and applicable legal standards. We affirm in part and reverse in part.

I.

Defendant is charged in Burlington County Indictment No. 07-12-1666 with second-degree burglary, N.J.S.A. 2C:18-2(a)(1); first-degree aggravated sexual assault of L.P., N.J.S.A. 2C:14-2(a)(3); second-degree sexual assault of L.P., N.J.S.A. 2C:14-2(c)(1); two counts of third-degree aggravated criminal sexual contact of L.P., N.J.S.A. 2C:14-3(a); third-degree terroristic threats, N.J.S.A. 2C:12-3(b); third-degree burglary, N.J.S.A. 2C:18-2(a)(1); second-degree attempted aggravated sexual assault of G.Z., N.J.S.A. 2C:5-1 and 2C:14-2(a)(3); and second-degree attempted sexual assault of G.Z., N.J.S.A. 2C:5-1 and 2C:14-2(c)(1). Defendant filed a motion to suppress, and a Jackson-Denno-Miranda hearing was held on May 20 and June 3, 2008.

Detective Darren Anderson, a sergeant in the Sex Crimes/Child Abuse Unit of the Burlington County Prosecutor's Office testified that in January 2006, he was assigned to assist the Moorestown police department's investigation of two related, but unsolved, sexual assaults and home invasions that had occurred on September 24 and 26, 2005. Through the Combined DNA Index System (CODIS), the September 24 assault had been linked to two unsolved aggravated sexual assaults that occurred in Westborough, Massachusetts in August 2003. As a result, Anderson traveled repeatedly to Massachusetts to interview the female victims of those crimes. Each woman interviewed described their attacker as a Hispanic male who spoke English with a Spanish accent. A task force of Massachusetts law enforcement agencies developed a composite of the suspect describing him as between twenty-five and thirty years old, five feet, seven inches tall, and weighing approximately 175 pounds.

Anderson and his colleagues compiled a list of potential suspects by running computer searches for anyone who had been in Massachusetts in 2003 and New Jersey in 2005. Anderson learned that in February 2005, local police in Delcano received a call of a suspicious vehicle with Massachusetts license plates registered to defendant. Anderson also determined that defendant, who was born in Brazil, had been arrested in November 2006, for aggravated assault with a weapon resulting from a domestic dispute with his wife. Motor vehicle records revealed that in 2003, defendant had resided in Framingham, Massachusetts, ten miles from Westborough. Anderson obtained a photo of defendant that had been on file since his arrest in November, and noted the similarities to the Massachusetts composite sketch. Defendant's fingerprints were forwarded to Massachusetts authorities to be compared to prints lifted at the 2003 crime scenes. The Massachusetts State police confirmed a match, and a warrant was issued for defendant's arrest. Anderson arrested defendant on this warrant on July 13, 2007, at 11:15 p.m. at a restaurant in Haddonfield, and brought him to the prosecutor's offices.

In the company of Detective Robert Hageman of the prosecutor's office, Anderson began by reading defendant his Miranda rights from a pre-printed card. Defendant responded affirmatively when asked if he understood, and signed the card at 11:54 p.m. Anderson explained to defendant that he was in possession of an outstanding warrant from the police department in Hopkinton, Massachusetts, charging defendant with home invasion, assault, battery with a deadly weapon and armed burglary. Defendant provided some personal background information, as well as his current address. When asked if he knew why he had been arrested, defendant said he thought it was related to his ex-girlfriend and a restraining order entered against him. Defendant admitted that he had worked in the Hopkinton area and dated some girls from that area.

Anderson explained to defendant that he had been in contact with Massachusetts authorities for some time in a collaborative effort to investigate several crimes. He told defendant that because of this investigation, he already had answers to most of the questions he would be asking. He advised defendant to use the opportunity to speak with him, telling defendant that if he chose not "to seize this opportunity to talk to" the detectives, based upon the strength of the investigation, it "[wa]s gonna be bad for [him]." Anderson expressed confidence that the forensic evidence already accumulated had convinced him that "we're sitting with the right person."

Defendant continued speaking and providing potentially incriminating information to the detectives over the next ninety minutes, much of which was taken up by Anderson's extensive statements regarding the evidence that already existed. At one point, defendant told Anderson he was too tired to continue talking. The detective left the interview room, returned with a glass of water, and continued the questioning. Defendant asked, "So [are] you a hundred percent it was me?" Anderson replied in the affirmative. Defendant then said, "I have a friend in Moorestown. He's a lawyer and I prefer to talk to him before I talk to you guys." Anderson stopped the questioning, and the following ensued:

Q: Okay. Look, when you tell me that, I have to stop talking to you. Okay? Is that what you want to have happen?

A: Yeah, because this is not, like I said to you, there is nothing for me to do. You know?

. . . .

Q: Well, we're gonna have to respect what you said . . . and discontinue talking to you because of . . . what you told me, that you're gonna talk to a friend of yours who's a lawyer. Alright? That's something you . . . want, right, and we'll respect that. Okay?

The detectives left defendant alone in the room for approximately five minutes. When they returned, the following colloquy, which we cite at length, took place:

 
Q: I don't intend to ask you anymore questions about that. I told you I would respect your wishes . . . [a]nd I hope you understand and see . . . that was the truth. But . . . I wanted to ask for your continued cooperation . . . . [W]hat I'm gonna ask you for is to see if you'd be willing to consent . . . to allow us to collect . . . buccal swabs, which are cotton swabs of your cheek, um, basically DNA. And . . . at this point right now I'm gonna be asking you for consent for that and it's something I would read a form and see . . . if you'd be willing to do that. What I just said to you, is that something you'd be willing to consent to?

A: You guys already have . . . that on your system . . . .

. . . .

Q: Okay. I'm not gonna be asking you for your . . . fingerprints . . . . That's something, but what I'm asking you for is gonna be consent for us to take DNA from the inside of your mouth. It's a very non-intrusive process. It takes about twenty seconds but it's something that I want, you, you need to . . . agree to do this. It's something I would cover the form with you and it would be something for you to . . . make that decision on your own whether it's something you wanna go through with or not . . . .

A: But I don't understand. You guys say you [] have everything from me.

. . . .

Q: Okay. Uh, as far as the explanation, it's something that at this point in the invest (sic) we wanna ask you if you'd be willing to do that.

A: Today's Friday. I'll be able to reach lawyer on Monday, right?

Q: Say that again.

A: Today's Friday. I will able to reach the lawyer on Monday, right?

Q: I don't know when you'd be able to reach him. I mean as far as time . . . it's late so I don't know when. You know. This right here, it's on you as far as if you wanna do this or not. I can't force you to. Um, it's something I'm asking[.] I'm asking if you would consent to that and let us do that . . . .

A: Okay. But, like I say, you guys say you have everything on me.

Q: There's reasons for it that I'm not able to elaborate on.

. . . .

I'll ask you again. I mean do you want me to go through this form and we can do this or is that something you have to be willing to do at this point?

. . . .

A: Yeah. But, uh, like I say to you . . . I prefer to talk to somebody I can trust. You know?

Q: Okay. So at this point you don't wanna voluntarily give this up?

. . . .

A: Yeah, but like I say . . . you say you have . . . all my evidence you guys need, right?

Q: [] I can talk, let me just stop you right there. You told me before . . . that you wanna talk to me and you wanna keep talking to me. Knowing what you said before are we alright to continue. I mean I've read you your rights before. Uh, you asked to speak to a friend. I'd be happy to sit back down with you then but, because you did that I wanna make sure that you're okay to continue talking to me. If this is troubling you, I'm not gonna force you to do this. It's not gonna happen.

A: Alright.

. . . .

Q: So you're saying you wanna continue?

A: No, that's what I'm saying.

Q: Are . . . I'm not following you. I can answer. We can have a dialogue again. Are you willing, what I have to do is I have to go through your rights again.

A: No, I just have read the rights.

. . . .

Q: I know you did and, but I'm gonna do that again if that's alright with you . . . . I'd love to talk to you again . . . . [O]ne of them rights . . . is you could stop at anytime just like you did before. But in order for me to reengage and talk to you again, I'm gonna do that again. Is that alright?

A: So why did you guys pick me up tonight? It should be tomorrow morning after sleep. You know what I mean?

Q: [] do you . . . wanna keep talking?

. . . .

A: Okay. But the thing is . . . if we talking about the same person, okay, I told you what happened.

. . . .

Q: [] I think there's some important things that you . . . wanna relay to me. I'm gonna go through your rights again. Okay?

. . . .

A: No, I understand the rights.

Q: Okay. I have to do it. Believe me, I know you do. I don't get the choice to say whether I can or can't. I have to do it. It's gonna be the same thing. Alright?

A: I already signed it.

. . . .

Q: Yes, no?

A: Yes.

Anderson then proceeded to re-read the Miranda warnings to defendant who agreed to talk to the detectives. It was 2:07 a.m. when defendant executed a second Miranda warnings card. Ultimately, he provided a detailed confession regarding his involvement in the aggravated sexual assaults which were the subject of the Massachusetts arrest warrant and the two crimes that had taken place in New Jersey. The interview continued uninterrupted until 3:57 a.m., when defendant signed a form consenting to the taking of buccal swabs. At approximately 7:55 a.m., defendant signed two consent forms giving the officers permission to search his home and vehicle.

Following the hearing, the judge reserved decision on defendant's motion. On September 19, 2008, he rendered an oral decision suppressing 1) that portion of the statement defendant made after requesting to speak to an attorney; 2) the buccal swabs, as well as the DNA evidence "thereby obtained"; and 3) "[a]ny evidence obtained . . . as a result of the searches of [defendant]'s home, vehicle and computer[.]" The judge reasoned that defendant's statement, "I have a friend in Moorestown, he's a lawyer and I prefer to talk to him before I talk to you guys," was "utterly unambiguous" and should have terminated the interrogation. He further found that

[T]he further conversation that led to re-administration of the Miranda warnings and resulting incriminating statements occurred only after the investigators had solicited a DNA sample from defendant and there is nothing in the record to [indicate] that he otherwise would have re-initiated discussions.

The judge noted that the "investigator's request [] for a sample of defendant's DNA went directly to the heart of the same matter . . . to which [] defendant had invoked his right to remain silent." Finally, the judge held that "[o]nce an individual . . . has invoked his right to co[unsel] . . . the police must cease all efforts to secure his cooperation in their efforts to acquire evidence that might be used against him."

Turning to the issue of the buccal swabs, the judge noted defendant's contention that the DNA sample should be suppressed as "the fruit of the Miranda violation." But, he also noted that the State correctly contended that "there is no right to counsel in the context of an attempt by the police to obtain non-testimonial evidence." Citing the lack of any controlling authority on this issue, the judge concluded "the lack of precedent results from the utter obviousness of . . . the correct result." He suppressed the buccal swabs and all evidence resulting from the consent searches of defendant's home, car, and computer. Finally, the judge concluded that the State had not met its burden of showing the illegally-obtained evidence was admissible pursuant to the inevitable discovery doctrine. State v. Sugar II, 100 N.J. 214 (1985). On October 2, 2008, the judge entered an order with a written memorialization of his oral decision. We granted the State's motion for leave to appeal on November 17, 2008.

II.

(A)

Before us, both parties have essentially reiterated the arguments they raised below. As to the suppression of defendant's statement, the State argues that Anderson was permitted to continue his questioning because defendant re-initiated communication with the detectives. Defendant contends that the detectives failed to "scrupulously honor" his request for an attorney, and that he never re-initiated communication with them. We agree with defendant. Substantially for the reasons expressed by the motion judge, we affirm the suppression of that portion of defendant's statement taken after he requested counsel.

As the United States Supreme Court set forth decades ago, "If [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723; State v. Chew, 150 N.J. 30, 61 (1997). "If [an] individual states that he wants an attorney, the interrogation must cease until an attorney is present." Miranda, supra, 384 U.S. at 474, 86 S. Ct. at 1628, 16 L. Ed. 2d at 723. Once a person has invoked the right to remain silent, this choice must be "scrupulously honored" by investigators. State v. Hartley, 103 N.J. 252, 255-56 (1986) (citations omitted).

"If an accused does initiate a conversation after invoking his rights, that conversation may be admissible if the initiation constitutes a knowing, intelligent, and voluntary waiver of the accused's rights." Chew, supra, 150 N.J. at 61. "[T]he suspect [must] personally and specifically initiate[] the conversation." State v. Burris, 145 N.J. 509, 519 (1996) (citing Edwards v. Arizona, 451 U.S. 477, 484, 101 S. Ct. 1880, 1884, 68 L. Ed. 2d 378, 386 (1981)); see also State v. Fuller, 118 N.J. 75, 83 (1990). The State must also show that in re-initiating the conversation, the defendant "was inviting discussion of the crimes for which he was being held." Fuller, supra, 118 N.J. at 82.

We think it clear that when the above principles are applied to the facts of this case, the judge properly suppressed defendant's statements that followed his request to speak to an attorney. Anderson did not scrupulously honor that request because he returned to the interrogation room armed with a consent form and engaged defendant in a discussion, attempting to secure his consent for the taking of buccal swabs. Given his previous comments to defendant regarding the existence of overwhelming forensic proof of his guilt, Anderson's discussion of the consent form was the "functional equivalent" of continued interrogation. See Rhode Island v. Innis, 446 U.S. 291, 301-302, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 308 (1980) (holding that "the definition of interrogation can extend [] to words or actions on the part of police officers that . . . were reasonably likely to elicit an incriminating response"); accord State v. Stott, 171 N.J. 343, 365 (2002). Defendant never re-initiated a conversation with the detectives at all. In fact, he continued to express a desire to speak to an attorney and attempted to end any further discussion.

The statement given after defendant invoked his right to an attorney was secured in violation of his Miranda rights. The judge properly suppressed the statement and we affirm that portion of his order.

(B)

We reach a different result with respect to the suppression of the buccal swabs and the DNA evidence obtained therefrom. Succinctly stated, the motion judge concluded that defendant's "invocation of the right to cease questioning until he [] had an opportunity to speak to a lawyer raise[d] a complete barrier to all police efforts to enlist his help in the furtherance of his investigation[,]" including securing his consent to the taking of non-testimonial exemplars. We decline the opportunity to address that issue squarely. But see State v. Johnson, 120 N.J. 263, 290 (1990) (holding "[d]efendant's consent to search his room was [] tainted by the illegally coerced confession"). However, we agree with the State that the inevitable discovery doctrine applies. Therefore, we reverse that portion of the order under review that suppressed the buccal swabs and the DNA obtained from them.

Under the inevitable discovery doctrine, "evidence is admissible even though it was the product of an illegal[ity], 'when . . . the evidence in question would inevitably have been discovered without reference to the police error or misconduct[.]'" State v. Sugar III, 108 N.J. 151, 156 (1987) (quoting Nix v. Williams, 467 U.S. 431, 448, 104 S. Ct. 2501, 2511, 81 L. Ed. 2d 377, 390 (1984)). Our Supreme Court has adopted the following formulation of the doctrine:

We require the State to show that (1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.

[Id. at 156-57 (quoting Sugar II, supra, 100 N.J. at 238); see also Johnson, supra, 120 N.J. at 289.]

"[T]he State's burden of proof is the 'clear and convincing' standard rather than the more lenient federal 'preponderance of the evidence' standard." Sugar III, supra, 108 N.J. at 157 (citations omitted).

Subsequently, in Johnson, supra, 120 N.J. at 284, the Court applied the doctrine where "[t]he failure of the interrogating detectives to [] scrupulously honor[] defendant's right to remain silent ma[de] inescapable the conclusion that defendant's subsequent oral confession had been unconstitutionally compelled." The Court nevertheless concluded that while "[d]efendant's consent to search his room was likewise tainted by the illegally coerced confession, [] the fruits of that search [we]re admissible . . . under the inevitable-discovery doctrine." Id. at 290. In finding that the "State could satisfy its burden under Sugar II[,]" the Court cited the ongoing "preparation of the affidavit in support of an application for a search warrant in the hours following defendant's arrest"; (2) the likelihood the "application would have been granted because probable cause existed independent of defendant's confession[]"; and the "investigators inevitably would have exercised the search warrant and found the evidence they did find." Id. at 290.

The State contends that defendant's DNA sample would have inevitably been discovered because 1) the Massachusetts prosecution would likely have resulted in the securing of a sample; 2) the items defendant used at the restaurant where he was arrested, and seized by the State, would have yielded a sample; or 3) after defendant disclosed information during the preliminary, unsuppressed portion of his statement, the State had sufficient probable cause to secure a search warrant and obtain the sample absent defendant's consent.

Relying primarily upon State v. Premone, 348 N.J. Super. 505 (App. Div. 2002), defendant counters by arguing, as he did below, that simply because the State could have obtained a warrant, it is not excused from doing so. He also contends that it is entirely speculative whether a DNA sample would be obtained through the Massachusetts prosecution or from the items seized at the restaurant. In short, he contends the State failed to meet its burden of proof under Sugar. We conclude that under the specific circumstances presented in this case, the State has demonstrated "by clear and convincing evidence that had the illegality not occurred, it would have pursued established investigatory procedures that would have inevitably resulted in the discovery of the controverted evidence, wholly apart from its unlawful acquisition." Sugar II, supra, 100 N.J. at 240.

First, this case is distinguishable from Premone. There, police were conducting a murder investigation and obtained information that the defendant was staying at a certain motel. Premone, supra, 348 N.J. Super. at 509. They went there and spoke to the manager who indicated the defendant had checked out and left a bag behind. Ibid. After the bag was retrieved by the manager, and believing it to be "abandoned," the police searched it and found bloody clothing that matched the victim's blood. Ibid. The State's primary argument was that the search was permissible because the bag was abandoned; secondarily, the State contended the inevitable discovery doctrine applied. Id. at 510. In affirming the trial judge's holding, we approved his formulation of the Sugar test, i.e. that there must be "independent investigation" by the State and something more than the ability to "obtain[] the information by applying for and securing a search warrant." Ibid. In short, in Premone, the State simply failed to produce any proof, much less clear and convincing proof, that up until the time of the illegal search of the bag, its investigation would have likely led to the issuance of a search warrant and discovery of the bloody clothing, "wholly apart from its unlawful acquisition." Sugar II, supra, 100 N.J. at 240.

Here, the record is clear that the State did not proceed to obtain a warrant because it believed it had secured defendant's consent to obtain the buccal swabs. Up until that point, the State had assembled a significant amount of evidence through a wide-ranging, bi-state investigation that established a nexus between the crimes in Massachusetts and those committed in Burlington County. Though the State concedes that it might not have possessed probable cause sufficient to obtain a search warrant at that point, the first part of defendant's interrogation supplied additional information that linked him to the local crimes.

It is precisely "[b]ecause satisfaction by the State of the [inevitable discovery] exception's requirements involves proof of hypothetical independent sources of obtaining the evidence," Sugar II, supra, 100 N.J. at 237, that the motion judge was required to consider what would have occurred had defendant not consented to giving the buccal swabs. In this regard, whether DNA would have been obtained from the Massachusetts prosecution, or the items seized from the restaurant, becomes less significant. The State "need only present facts sufficient to persuade the court . . . that the [evidence] would be discovered" "in one or in several ways[.]" Sugar III, supra, 108 N.J. at 158-59 (emphasis added). Instead, based upon the facts presented, it is clear that had Anderson never returned to the interview room, or had defendant refused to provide the swab, the State would have obtained a DNA sample by either securing an investigative detention order pursuant to Rule 3:5A, or a search warrant supported by probable cause.

Curiously, before the motion judge, neither side addressed the application of Rule 3:5A to this situation, though both addressed the issue in oral argument before us. The State concedes that the Rule permits the issuance of "an order authorizing [] temporary detention" for the purpose of "compelling th[e] person to submit to non-testimonial identification procedures. . . ." R. 3:5A-1. The order can issue if there is a crime under "active investigation, and [] there is a reasonable and well-grounded basis . . . to believe that the person sought may have committed the crime[.]" R. 3:5A-4(a) and (b). As we noted in State v. Rolle, 265 N.J. Super. 482, 486 (App. Div.), certif. denied, 134 N.J. 562 (1993), "an investigative detention order [is] [] needed and justifiable where probable cause to arrest is lacking." Defendant concedes that even before Anderson's interrogation began, the State most likely could have secured an investigative detention warrant to obtain the buccal swabs had defendant refused his consent. Certainly, after the interview began and defendant provided some preliminary information regarding the location of one of the crimes and the victim involved that matched the information Anderson already had from his independent investigation, probable cause existed to obtain a search warrant.

The Court has succinctly stated the rationale for the inevitable discovery doctrine.

[T]he deterrent purposes of the exclusionary rule are not served by excluding evidence that, but for the misconduct, the police inevitably would have discovered. If the evidence would have been obtained lawfully and properly without the misconduct, exclusion of the evidence would put the prosecution in a worse position than if no illegality had transpired.

[Sugar II, 100 N.J. at 237.]

Based upon the specific facts presented, we have no doubt that had Anderson not returned to the interview room to seek defendant's consent to the taking of the buccal swabs, and had defendant not agreed, the "proper, normal, and specific police investigative procedures would have been initiated and pursued and would have led eventually to" securing defendant's DNA. Id. at 240. We therefore reverse that portion of the order that suppressed this evidence.

Affirmed in part; reversed in part. We do not retain jurisdiction.

 

Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. (1966).

CODIS is a database that collects and stores DNA profiles of offenders.

The State has not appealed from this third portion of the order.

We assume arguendo that defendant actually consented to the taking of his DNA sample, though we recognize it is part and parcel of his argument that his voluntary consent was never obtained. For purposes of our analysis, the issue is not particularly relevant since Anderson's request, in the first instance, was improper.

(continued)

(continued)

23

A-1361-08T4

June 24, 2009


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