STATE OF NEW JERSEY v. RODNEY HAMB

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY HAMB,

Defendant-Appellant.

____________________________

Argued telephonically January 24, 2014

Decided July 25, 2014

Before Judges Fisher, Koblitz and O'Connor.

On appeal from Superior Court of New Jersey,

Law Division, Cumberland County, Indictment

No. 11-11-0941.

Matthew Weng argued the cause for appellant (Chance and McCann, L.L.C., attorneys; Mr. Weng, on the brief).

Meghan O. Price-Furfari, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Ms. Price-Furfari, of counsel and on the brief).

PER CURIAM

Defendant appeals the denial of his motion to suppress evidence. We remand for further proceedings.

Defendant was charged with two traffic offenses: failure to signal turn, N.J.S.A. 39:4-126, and driving while suspended, N.J.S.A. 39:3-40. He was also indicted for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); and fourth-degree tampering with or fabricating physical evidence, N.J.S.A. 2C:28-6(1).

After the trial court denied defendant's motion to suppress, defendant pled guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). In accordance with the plea agreement, the court sentenced defendant to a five-year term on the unlawful possession of a weapon conviction, with a one-year period of parole ineligibility, and to a three-year flat term on the possession of a controlled dangerous substance conviction, to run concurrently with the latter sentence. The motor vehicle charges and the remaining count in the indictment were dismissed.

During the suppression hearing, Detective Adam Capoferri testified that, while in a Wawa store he noticed M.T., a person known to him to be involved in the distribution of narcotics. He saw another person, later identified as defendant, buy coffee, signal M.T. to go into the rest room, leave the coffee he had just purchased on the counter, and go into the rest room. M.T. also went into the rest room. Although the detective found their behavior "slightly suspicious," he did not see any evidence of criminal activity. After M.T. and defendant emerged from the rest room and left the store, the detective followed defendant after he exited the parking lot.

Within minutes defendant made a right turn without first using a turn signal. Defendant continued for a short distance, then turned into an Acme parking lot and parked. The detective parked and approached defendant, who was still sitting in his car. The detective advised defendant he had committed a traffic violation and asked for his credentials. Although defendant was able to produce an insurance card, he did not have in his possession his driver's license and the information on the registration card did not correspond to the car he was driving.

Because he did not have his driver's license, the detective asked defendant's name, date of birth, and Social Security number. He then returned to his car to have dispatch check law enforcement databases to verify the information defendant provided, and ascertain whether there were any warrants out for defendant and whether there were any reports the car he was driving was stolen. However, all databases were "down."

When he returned to defendant, he advised the information on the registration card did not match the car he was driving. Defendant became very nervous; specifically, his hands started to shake, he avoided eye contact, and he continuously flipped his cell phone open and shut.

Concerned about issuing a summons to the wrong individual, the detective resorted to using a "tactic" when there is no access to the databases and an officer needs to confirm a person's identity. He asked for defendant's address, where he worked, if he "was familiar with certain parts of the area and . . . if he had been involved in anything in the past . . . to corroborate some of the information he provided, an address and things like that."

The detective also told defendant what he had observed in the Wawa between him and M.T. Defendant responded that he understood why his behavior might appear suspicious. Defendant admitted knowing M.T., but claimed nothing transpired between them in the restroom. Satisfied with defendant's answer, the detective returned to the topic of defendant's identity. The detective then told defendant he seemed nervous. Defendant paused and said, "Okay. Listen, I have a .22 caliber handgun in the glove box." As the gun was in defendant's reach and posed a threat to the detective, he removed defendant from the car, placed him under arrest, and put him in the car of another detective who had arrived on the scene. After his arrest, three additional police officers arrived.

After defendant was transported to the police station, defendant was read his Miranda1 rights, following which he admitted he had a .22 caliber handgun in his car. The following day the car was searched pursuant to a warrant. Found in the glove box was a loaded .22 caliber, semi-automatic handgun and a cup of coffee which contained methamphetamines.

One issue is the length of time the detective questioned defendant in his car before he was placed under arrest. In his brief defendant claims the stop lasted forty minutes. The record, however, is not clear. The detective did respond in the affirmative when asked by defense counsel if he had been "out there with [defendant] for about forty minutes." It is not clear to us whether "out there" refers to the Acme parking lot, and it is unknown whether the forty minutes refers to the period before the arrest or the entire time the detective and defendant were in the Acme parking lot. The judge made no finding regarding the duration of the detention.

Another issue is the extent to which defendant was physically constrained while being questioned. In his brief defendant claims the evidence revealed that five officers were present while defendant was being questioned, and that the detective parked directly behind defendant's car.

The evidence is not as defendant claims. There were two officers present until defendant was arrested; thereafter, three officers arrived on the scene. The record does show that at one point the detective did park directly behind defendant's car; however, for an unspecified period of time he was parked "a parking space and a half" away from defendant's car.

Defendant raises one point for our consideration:

THE DEFENDANT'S STATEMENT SHOULD BE SUPPRESSED BECAUSE HE WAS SUBJECTED TO A CUSTODIAL INTERROGATION AND WAS NOT ADVISED OF HIS MIRANDA RIGHTS.

Defendant claims he was subjected to a custodial interrogation and thus under a "de facto" arrest when questioned by the detective; therefore, Miranda warnings should have been given before any questioning. See State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005) (Miranda warnings required before any custodial interrogation, which is questioning by any law enforcement officer after a person has been taken into custody or deprived of freedom of movement). As he did not receive any Miranda warnings, he maintains his statement that there was a gun in the car should have been suppressed. Further, any evidence obtained as a result of the search warrant should have been suppressed as well.

Defendant believes he was "in custody" for the following reasons. First, he claims he was questioned for forty minutes before being arrested. Second, he was subjected to a "show of force" by the number of officers on the scene and by the detective parking his car directly behind his, conduct that would lead a reasonable person to believe his freedom of movement was constrained. Third, the questions suggested he had committed a crime at the Wawa. Although we find no merit in the second and third aspects of his argument, the judge's findings do not include a finding as to the duration of the detention and the record is sufficiently ambiguous to preclude our ability to decide that aspect in the absence of the judge's finding. We, thus, remand for further proceedings in light of the following analysis of the issues.

When a police officer detains a person following an automobile stop, that person has been "seized" within the meaning of the Fourth Amendment2. State v. Baum, 199 N.J. 407, 423 (2009); State v. Dickey, 152 N.J. 468, 475 (1998). Thus, an automobile stop "must satisfy the Fourth Amendment's basic requirement of 'reasonableness.'" State v. Hickman, 335 N.J. Super. 623, 634 (App. Div. 2000). The "Terry3" standard is used to measure the reasonableness of a detention following a valid traffic stop. Dickey, supra, 152 N.J. at 476. Under that standard, courts must consider "'whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'" Ibid. (quoting Terry, supra, 392 U.S. at 20, 88 S. Ct. at 1879, 20 L. Ed. 2d at 905).

A police officer who has lawfully stopped an automobile may question the driver, "even on a subject unrelated to the purpose of the stop, without violating the Fourth Amendment, so long as such questioning does not extend the duration of the stop." Hickman, supra, 335 N.J. Super. at 636. However, "[A] continued detention may amount to an arrest if it is longer than needed or if it becomes 'more than minimally intrusive[.]'" Baum, supra, 199 N.J. at 425 (quoting Dickey, supra, 152 N.J. at 478)).

The trial court found the detective credible when he testified observing defendant make a turn without first using a turn signal, a finding to which we must defer. State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005). Given the trial court's finding, there is no dispute the detective had a legitimate reason to approach and question defendant.

Defendant also claims the number of officers on the scene and the detective's act of parking directly behind him imposed, when viewed from the perspective of the reasonable person, a "restraint on freedom of movement of the degree associated with a formal arrest," see Smith, supra, 374 N.J. Super. at 430-31 (citing Yarborough v. Alvardo, 541 U.S. 652, 124, S. Ct. 2140, 2149, 158 L. Ed. 2d 938, 951 (2004)), requiring a Miranda warnings. We disagree. First, the undisputed testimony was that there were only two officers on the scene at the time defendant volunteered there was a gun in the car. Second, the positioning of the detective's car did not restrain defendant's freedom of movement commensurate with a formal arrest.

As noted, however, the record provides no clear understanding of the duration of the detention. Because a roadside detention of undue duration may devolve into an arrest, which would then trigger a defendant's right to Miranda warnings, this particular fact is critical to our evaluation of defendant's argument. We, thus, remand for further findings on this question. We do not foreclose the trial judge's right to recall those witnesses who already testified or, for that matter, the parties' request to call additional witnesses to the extent such testimony would allow for an informed decision on the matter. We also do not foreclose the eliciting of non-hearsay testimony regarding the officer's claim that he was told the necessary databases were not accessible during defendant's detention.

Remanded. We retain jurisdiction. The remand proceedings are to be completed within sixty days.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 U.S. Const. amend. IV

3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).