STATE OF NEW JERSEY v. LORI A. HUMMEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2412-13T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LORI A. HUMMEL,

Defendant-Appellant.

______________________________________

September 14, 2016

Submitted February 8, 2016 Decided

Before Judges Sabatino and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-04-0385.

Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Lori Hummel appeals from the May 18, 2012 order denying her motion to suppress certain physical evidence. Following the hearing on her suppression motion, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and third-degree conspiracy to distribute a controlled dangerous substance (heroin), N.J.S.A. 2C:5-2. Defendant was thereafter sentenced to a twenty-four-year term of imprisonment on the manslaughter conviction, subject to an eighty-five percent period of parole ineligibility, and to a concurrent four-year term of imprisonment on the conspiracy conviction. For the reasons that follow, we affirm in part and reverse in part.

I

T.C.1 ("victim") was stabbed to death in his apartment on December 5, 2010. Three days before her arrest on December 10, 2010, defendant was questioned by Detective Bryn Wilden and Sergeant James Ballenger at the Gloucester County Prosecutor's Office ("Prosecutor's Office") for approximately four hours. Following an evidentiary hearing, the trial court suppressed all of the statements defendant gave during the interview, but declined to suppress certain physical evidence, specifically, a Family First EBT card2, defendant's boots, and certain store receipts. These items were in defendant's possession and obtained from her during the interview.

We recount only that evidence which emerged during the suppression hearing that is relevant to the issues on appeal. Woodbury Heights police officer Gary Krohn testified he was aware defendant was wanted for questioning. He claimed that, on December 7, 2010, while sitting in a marked patrol car in full uniform in a Wawa parking lot, defendant approached him and advised she had an outstanding traffic warrant for "a taillight" and was going to take care of it. Krohn asked her to wait in her car.

Through dispatch Krohn discovered there were outstanding warrants for defendant for unpaid speeding tickets and a broken taillight. He also contacted the Prosecutor's Office and learned she was still wanted for questioning. Krohn advised defendant she had two outstanding warrants, but that he would get her released on her own recognizance as the tickets were under $500. He then transported her in his patrol car to the Prosecutor's Office.

After he dropped her off, defendant was then questioned by Wilden and Ballenger. At no point during the interview was defendant given a Miranda3 warning. The video of the interview, placed in evidence during the hearing, revealed the following. When questioned about her activities over the previous two days, defendant mentioned she had purchased a phone the day before. When asked if she still had the receipt for the phone, she responded by looking in and pulling receipts from her purse, which she placed next to her purse on the table. She could not find the receipt for the phone and surmised she had left it at home. Sergeant Ballenger then asked to see the receipts she had removed from her purse; she responded by handing them over to him. Ballenger studied the receipts while Wilden continued to question her, eventually returning them while the interview was still in progress.

Defendant divulged she had purchased drugs from the victim in the past and had occasionally "crashed" at his apartment, but that she had not spoken to him for over a month. Later, she advised that after she had gone to Walmart to buy the phone, she then went home. She was advised others reported seeing her elsewhere, but she disputed those claims. At the suppression hearing, Wilden conceded no one had in fact reported seeing her in a place different from what defendant had claimed.

Defendant was questioned about whether she had ever been on the roof of the victim's apartment. She replied she had sunbathed on his roof a couple times, but had not been up on the roof since the previous summer. Ballenger then stated that "we got some footprints off of the roof." Defendant responded, "Okay, you can have at my shoes if you like." At the suppression hearing, the detective admitted that no footprints were in fact found on the roof.

Taking advantage of her invitation, Ballenger immediately asked to see her shoes4, to which she responded, "Absolutely you can," and, with the boot still on her foot, placed her right foot on the table. Ballenger then requested to see the other boot. She took her right foot off the table and put the left one up. After he looked at the sole of the left foot, she was asked to switch feet again.

Both officers then closely studied the sole of her right foot. Defendant mentioned there used to be an orange tag on the sole, which identified the brand of the boot. She then stated, "You guys think it's blood, don't you? Nice. Hold on. It's probably stained. I was painting and staining."

Defendant put her foot down and, without being asked, took the boot off and handed it to the detective. The detective looked at the sole and asked if she could "hold here for just a minute?" Defendant replied, "Absolutely," and the detective left the room with the boot.

The detective and sergeant then returned with the boot and placed it on the table. Defendant said the stain on the bottom of the boot was "nothing" and asked if a test was going to be performed on the boot. The detective confirmed there was going to be a test, filled out a consent form, and said to defendant, "This is just a consent because you said go ahead, right? That way we can get it over with and let you go, right? To search the shoe." After clarifying it was the shoe they wanted to search, defendant said, "Absolutely you can search it."

The detective read the consent form aloud, which stated

I, Lori Hummel, hereby authorize Det. Bryn Wilden . . . and Sgt. James Ballenger, . . . Law Enforcement Officers and Members of the Gloucester County Prosecutor's Office to conduct a complete search of my [property], one pair of Sketchers boots, size 8 . . . [a]nd to remove any and all items which are found that they believe may be of help in their investigation. I understand I have the right to refuse and consent. I understand that if I refuse to consent, my refusal will be respected. I understand that items seized can be used as evidence against me and/or other persons in a Court of Law. I understand that I will be given a list of any items seized. I am signing this consent form of my own free will. No threats or promises of any kind have been made. I have reviewed this form completely before signing it and I understand it fully.

When he reached the statement on the form referencing she had the right to refuse to give consent, she responded, "No, I have nothing to hide." The detective told her, "You can say no. Say no. No I don't want that." Defendant responded, "Yeah, I have nothing to hide. So you can search it."

When asked whether she understood the sentence in the form indicating her refusal to search would be respected, she replied, "I'm not gonna give you guys a hard time. I'm not giving you guys, I don't want to give you a hard time." She also stated she understood the sentence indicating that any evidence seized could be used as evidence against her.

When read the sentence referencing the fact any items seized could be used against her in a court of law, she nodded and said "yes." She acknowledged that no one had threatened her to induce her to sign the consent form, that she reviewed the form completely before signing it, and understood it fully. The detective then left the room with the signed consent form.

During the suppression hearing, Detective Wilden testified the stain was tested with a "Hemastix Reagent" stick after the consent form had been signed. The stain tested positive for blood.5 Wilden claimed it was at that point when defendant became a suspect and that he intended to detain her.

After Wilden returned and questioning resumed, defendant asked why she was being detained for a traffic violation and asserted the two officers were "jerking [her] around." Wilden replied, "Just listen, listen Lori, listen, you have a warrant and we're trying to help you out with that warrant, okay? Really. I mean otherwise we won't be able to just let you walk out of here anyway." She asked if she were under arrest. Wilden answered, "Technically you have those warrants, correct?" suggesting she was being held because of the traffic tickets. Defendant again asked if she were under arrest, to which Wilden merely replied, "Well like I said, you have some traffic warrants."

Wilden informed defendant they had more questions, but defendant stated, "I don't know if I even want to answer anymore right now." When Wilden repeated he needed to ask additional questions, defendant stated she wanted to get an attorney. Wilden and Ballenger then ceased asking questions.

Wilden indicated they would confirm the nature of defendant's outstanding warrants and both officers then left the room. When they returned, one of the officers secured one of defendant's ankles to a metal bar bolted to the floor and told defendant she was being detained. The officers then began to walk out of the room with her purse, but defendant commented she did not want them to have it. The officers responded that she was in custody and the purse would be right outside of the door. Defendant asserted, "Well hopefully my $500 isn't missing out of there."

The officers then inventoried the contents of her purse in her presence and discovered she did not have $500 in her purse. She was questioned about a Family First card found in her wallet on which appeared the name "H.W."6 Defendant disavowed any knowledge of H.W. or how the card ended up in her purse.7 The contents that had been removed were then put back into the purse, and the officers left the room with it. Defendant was released later that day.

Following the suppression hearing, the trial court concluded that, under the totality of the circumstances, a reasonable person would not have believed she was free to leave the interview room and, thus, the entire interview was a custodial interrogation. Because defendant had not been given a Miranda warning, the court suppressed all oral statements defendant made during the interview.

The court otherwise found the physical evidence obtained during the interview admissible, reasoning defendant voluntarily permitted the officers to inspect her boots. Further, the court determined defendant signed a valid consent-to-search form authorizing the search of her boots without coercion by the officers. Finally, the court concluded the Family First EBT card had been discovered "in plain view" during the inventory search of defendant's purse.8

I

On appeal, defendant raises the following contentions for our consideration

POINT I HUMMEL'S PRODUCTION OF HER BOOT AND THE RECEIPTS WERE NON-VERBAL RESPONSES TO THE OFFICER'S UNWARNED QUESTIONING, REQUIRING SUPPRESSION UNDER MIRANDA'S PROPHYLACTIC RULE.

POINT II ALTERNATIVELY, BECAUSE THE IMPROPER POLICE PROCEDURES RENDERED HUMMEL'S STATEMENTS INVOLUNTARY, THE PHYSICAL EVIDENCE OBTAINED SHOULD HAVE BEEN SUPPRESSED AS THE FRUIT OF THE POISONOUS TREE.

POINT III BECAUSE HUMMEL DID NOT UNDERSTAND THAT SHE HAD A RIGHT TO REFUSE, AND BECAUSE HER CONSENT WAS THE PRODUCT OF COERCION, THE STATE FAILED TO ESTABLISH THAT THE WARRANTLESS SEIZURE AND EXAMINATION OF HER BOOT WAS CONDUCTED PURSUANT TO A VALID CONSENT SEARCH.

POINT IV BECAUSE HUMMEL WAS NEVER INCARCERATED, AND BECAUSE THE POLICE FAILED TO ALLOW HUMMEL TO MAKE OTHER ARRANGEMENTS FOR HER PROPERTY OR POST BAIL, THE STATE CANNOT ESTABLISH THAT THE WARRANTLESS SEARCH OF HER PURSE WAS CONDUCTED PURSUANT TO A VALID INVENTORY SEARCH.

POINT V THE TRIAL COURT FAILED TO CONSIDER HUMMEL'S ABILITY-TO-PAY WHEN ORDERING RESTITUTION, REQUIRING A REMAND FOR A RESTITUTION HEARING.

Specifically, defendant first argues that offering the boots and receipts to the officers were communicative responses to police questioning; therefore, because she did not receive a Miranda warning before she was questioned, she alleges these responses should have been suppressed along with the other oral statements the trial court suppressed. Second, she contends the boots and the receipts must be suppressed because her statements were given involuntarily. Third, she maintains the consent form she signed to search the boots was invalid, as she did not understand she had the right to refuse to turn them over and, thus, asserts her consent was coerced. Fourth, she alleges the Family First EBT card was discovered during an invalid inventory search. Finally, she argues the trial court erred when, as part of her sentencing, it ordered her to pay $4,500 in restitution without first holding an ability-to-pay hearing.

In reviewing a trial court's denial of a motion to suppress evidence, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)) (internal quotation marks omitted); see also State v. Hubbard, 222 N.J. 249, 268-70 (2015). However, legal conclusions drawn from those facts are not entitled to deference and are subject to de novo review. State v. Hreha, 217 N.J. 368, 382 (2014); State v. Borrow, 408 N.J. Super. 509, 516-17 (App. Div.), certif. denied, 200 N.J. 547 (2009).

The privilege against self-incrimination is provided in the

Fifth Amendment of the United States Constitution. U.S. Const. amend. V.9 The privilege against self-incrimination is not limited to oral statements but extends to any testimonial communication given while in custody. Schmerber v. California, 384 U.S. 757, 763-64, 83 S. Ct. 1826, 1832, 16 L. Ed. 2d 908, 915-16 (1966); State v. Mason, 164 N.J. Super. 1, 4 (App. Div. 1979) ("The privilege against self-incrimination extends to all acts intended to be of a testimonial or communicative character, whether in verbal or other form.").

Whether a verbal or non-verbal communication, to be a testimonial or communicative act, the suspect's "communication must itself, explicitly or implicitly, relate a factual assertion or disclose information." Doe v. United States, 487 U.S. 201, 210 (1988). "[N]onverbal conduct contains a testimonial component whenever the conduct reflects the actor's communication of his thoughts to another." Pennsylvania v. Muniz, 496 U.S. 582, 595 n.9, 110 S. Ct. 2638, 2647 n.9, 110 L. Ed. 2d 528, 548 n.9 (1990).

While the Fifth Amendment protects a person from being compelled to provide testimonial or communicative evidence against himself, there is a distinction between compelling a suspect to give this kind of evidence and making him produce or be the source of real or physical evidence.10 The privilege against self-incrimination does not shield a person from producing real or physical evidence, see United States v. Askew, 203 Fed. Appx 414, 416 (3d Cir. Pa. 2006) (citing Pennsylvania, supra, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed.2d 528); Schmerber, supra, 384 U.S. at 764, 83 S. Ct. at 1832, 16 L. Ed. 2d at 916, unless the act of producing such evidence is tantamount to making a communicative or testimonial act, which is not the case here. See State v. Green, 209 N.J. Super. 347, 354 (App. Div. 1986) ("Miranda warnings are inapplicable where nontestimonial, physical evidence is taken.") We address defendant's first argument, that the act of turning over the boots and the receipts to the police during the interview were statements, albeit non-verbal ones, protected by the Fifth Amendment and thus subject to suppression as a consequence of the State's failure to issue Miranda warnings.

In part, defendant relies upon State v. Mason, 164 N.J. Super. 1 (App. Div. 1979), in support of her premise that the act of turning over her boots to the police was communicative in nature and thus protected by the privilege against self-incrimination. In Mason, the defendant was escorted by the police into a patrol car, where she was asked if she had any drugs. Id. at 3. Before she was questioned, she was not given a Miranda warning. Ibid. The defendant informed the police that she did not know if she had any drugs, but pulled a plastic bag containing narcotics from the space between her blouse and her sweater and handed it to the police. Ibid.

We reasoned the act of turning over the contraband to the police was a communicative response to police questioning that was the equivalent of a verbal response. Id. at 4. Specifically, by handing over the drugs to the police, defendant was admitting she had drugs in her possession. See ibid. Thus, in the absence of a Miranda warning, the suppression of that nonverbal assertive response was warranted. Ibid.

Here, the act of turning over her boots did not communicate any fact. Although accompanied by her verbal consent, the specific gesture of letting the officers inspect her boots was not a transmission of defendant's thoughts, mental processes, or any other communication; thus, permitting the police to view the boots was not an act protected by the Fifth Amendment. Defendant merely transferred physical, nontestimonial evidence to law enforcement, an act that did not reveal the contents of her mind. Although some thought is required in all "contexts where the evidence could be produced only through some volitional act," see Pennsylvania, supra, 496 U.S. at 591, 110 S. Ct. at 2645, 110 L. Ed. 2d at 545, the Fifth Amendment does not bar witnesses from using their own volition to produce physical evidence. Mason and the remaining cases on which defendant relies are inapposite.

Defendant also argues the act of handing over the receipts she pulled from her purse when searching for the phone receipt was also a communicative act protected by the Fifth Amendment. For the reasons we find the transfer of the boots was not a communicative act protected by the privilege against self-incrimination, we similarly find the relinquishment of the receipts was merely the transfer of physical evidence. See Pennsylvania, supra, 496 U.S. at 591, 110 S. Ct. at 2645, 110 L. Ed. 2d at 545.

Additionally, defendant asserts she did not voluntarily sign the consent form authorizing the search of the boots. We disagree. The video resoundingly refutes this assertion. The officers painstakingly went through each essential point in the consent form. It is clear she understood the content of each point, and knew she had the right to refuse to sign the form.

Defendant further asserts the physical evidence should be suppressed because the statements she made during the interview were not made voluntarily. After carefully considering the record, we conclude this contention is without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).

Defendant also maintains the warrantless search of her purse mandates the suppression of the Families First EBT card belonging to H.W. We agree. Once a suspect is arrested, the police may search and take inventory of his personal belongings prior to him being placed in confinement. Illinois v. Lafayette, 462 U.S. 640, 644-48, 103 S. Ct. 2605, 2608-10, 77 L. Ed. 2d 65, 70-72 (1983). But an inventory search cannot be a mere pretext "to indiscriminately search for evidence[,]" and the arrestee must be provided the opportunity to "make alternative disposition of the personalty" in lieu of the search. State v. Padilla, 321 N.J. Super. 96, 110-11 (App. Div. 1999).

During the suppression hearing, Wilden testified he wanted to remove the defendant's purse from the interview room after she had been secured to the bar in the room. His concern was the purse might contain a weapon. When he started to remove the purse from the room, defendant asserted it contained $500. To avoid being accused of taking her money after the purse was removed, he and Ballenger went through all of the items in the purse in defendant's presence.

What is not clear from the record is why the officers had to go through each item in defendant's purse. The officers could have checked for weapons and counted the cash without examining every card or document in the purse. It was also not made clear why the purse could not have been left in the room but outside of defendant's reach. If the purse had remained in the room, there would not have been any need to validate how much cash was in the purse. In our view, the inventory search clearly developed into a warrantless investigatory search and, for that reason, the Family First EBT card must be suppressed. The trial court's determination the card is admissible is reversed. In light of our ruling, defendant may, if she so chooses, move before the trial court within thirty days to withdraw her guilty plea, have her conviction vacated, and have her case listed for trial. Otherwise, the conviction shall remain in place.

Finally, defendant contends the court failed to hold an ability-to-pay hearing before imposing as part of her sentence that she pay $4,500 in restitution. At sentencing, the defense attorney advocated that the court sentence defendant in accordance with the plea agreement. The plea agreement provided that defendant pay restitution. Just before the court sentenced defendant, the State requested restitution in the amount of $4,500. Defendant did not oppose paying this sum, indicate she was unable to pay, or request an ability-to-pay hearing. A defendant who does not contest the amount of restitution or dispute her ability-to-pay is not entitled to an ability-to-pay hearing. State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994).

Affirmed in part, and reversed in part, subject to defendant's right to move to withdraw her guilty plea consistent with this opinion. We do not retain jurisdiction.

1 We have initialized the victim's name to protect his survivors' privacy.

2 "Family First" is a New Jersey supplemental income program. An EBT card (short for "electronic benefits transfer" card) is a debit card on which benefits are deposited. State of N.J. Dep't of Human Servs., Families First Card Electronic Benefits Transfer (EBT), http://www.state.nj.us/humanservices/dfd/

programs/njsnap/ebt (last visited Sept. 8, 2016).

3 Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 1624, 16 L. Ed. 2d 694, 719 (1966).

4 The shoes were interchangeably referred to as boots during the interview.

5 The stain was later determined to be the victim's blood.

6 We initialized the name that appeared on the card to protect that individual's privacy.

7 The card was significant, as H.W., who had been interviewed by police, claimed he had given his Family First EBT card to the victim for his use. The victim last used the card three days before he was killed.

8 Although the trial court discussed the boot and Family First EBT card in particular, its May 18, 2012 order stated that none of the physical evidence acquired during the interview was suppressed.

9 New Jersey also provides a common law privilege against self-incrimination, which has been codified in N.J.S.A. 2A:84A-19 and N.J.R.E. 503.

10 A person can be the source of physical evidence by, for example, providing a sample of his blood. See State v. Bodtmann, 239 N.J. Super. 33, 40 (App. Div. 1990).