STATE OF NEW JERSEY v. KARL S. VIERHEILIG

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3032-05T53032-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KARL S. VIERHEILIG,

Defendant-Appellant.

_______________________________

 

Argued: June 5, 2007 - Decided:

Before Judges Coburn, Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 003-07-05.

Miles Feinstein argued the cause for appellant.

Yomara Castro, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Castro, on the brief).

PER CURIAM

Defendant Karl Vierheilig appeals from a conviction for careless driving, N.J.S.A. 39:4-97, and leaving the scene of an accident, N.J.S.A. 39:4-129(b), following a trial de novo in the Law Division. After his motion to suppress was denied and he was found guilty and sentenced on both charges in the municipal court, defendant appealed to the Law Division, where he argued that: (1) he was denied procedural due process and effective assistance of counsel in the municipal court; and (2) his motion to suppress should have been granted. His arguments were limited to the municipal court judge's rulings relating to his motion to suppress. The Law Division judge rejected defendant's arguments and he appealed. We affirm.

On June 3, 2004, in connection with an incident occurring on May 31, 2004, defendant was issued summonses in Midland Park for careless driving and leaving the scene of an accident with property damage. The matter was transferred to the Northvale municipal court. Prior to trial, defendant filed a motion and brief seeking to suppress "all evidence obtained subsequent to the officer's warrantless entry into [his] rear yard," contending the police had no probable cause to intrude upon his rear yard, which was not visible from the street, and that while on his property, the police interrogated him, resulting in inculpatory statements; thus, the fruits resulting from the illegal warrantless entry must be suppressed. The State filed a responsive brief, disputing the manner in which the observations of defendant's car were able to be made and contending the officers' entry was restricted to the access portion of the "curtilage" not covered by the Fourth Amendment.

At the commencement of the proceeding on November 23, 2004, defense counsel requested a sequestration order. The prosecutor said he had no objection provided any defense witnesses were subject to the same requirements, and identified the State's witnesses as: John Anello, a witness to the accident; Michael McNeely, the owner of the vehicle involved in the accident; Patrolman Kasbarian, the officer who came to the accident scene; Detective-Lieutenant Casson, who entered upon the rear yard and who took the inculpatory statement; and Chief Klingen, who accompanied Casson onto the property. The municipal court judge asked defense counsel to identify his witnesses, to which he responded, "We have none."

Detective Casson testified on a discovery issue, after which the municipal court judge heard argument on defendant's motion to suppress. As he had in the brief, defense counsel's arguments focused on the officers' entry onto the property. He contended the officers had no right to be on the property and that the illegal entry tainted any statements defendant made in the rear yard, as well as the resulting inculpatory statement at the police station as fruits of the poisonous tree. The prosecutor made a proffer of the facts and contended the police were entitled to be on the property investigating the accident and restricted their movements to the semi-private portion of the curtilage. After the judge stated he was reserving decision on defendant's motion until after he heard more facts, the prosecutor presented various witnesses.

Anello reported seeing a gold Maxima, with one headlight out and a flat tire, leaving the scene after side-swiping a parked blue Mustang. McNeely faxed a description of the fleeing car to a number of auto salvage yards in the area, in response to which the police were provided information that an individual had purchased parts for a car matching the description and paid with a credit card under the name "Vierheilig." Detective Casson and Chief Klingen then met at the home of defendant's sister, Jackie Vierheilig, on Godwin Avenue, Midland Park, and stood on the sidewalk at the driveway that enters the property from Center Street. The detective explained that the officers heard noises coming from a detached garage at the rear of the property and observed a lit garage with an opened front door and two people inside working on a damaged motor vehicle that was facing nose out. The officers went up to, but did not enter, the garage and the detective spoke with defendant and requested that he accompany him back to the police station, which defendant voluntarily did. At the station, the detective read defendant his Miranda rights, which defendant acknowledged in writing, and handwrote a statement.

When Detective Casson began to read defendant's statement, defense counsel objected, arguing this was a suppression hearing. The judge disagreed, stating it was the "trial" and the following colloquy ensued as to the status of the proceeding:

MR. KARCH [Prosecutor]: Judge, at this point, I think Mr. Kelly's motion goes as to whether or not they had the right to require Mr. Vierheilig [to] go back to the police station. Is that right?

MR. KELLY [Defense counsel]: Right. And as far as I know, Judge, most respectfully, that we're still on the motion to suppress. This is not the trial. This is the motion to suppress.

THE COURT: No, this is the trial. This is the trial. I told you I reserved decision on your motion to suppress because there were minimal facts. So, we're in trial.

MR. KELLY: Your Honor, most respectfully, and I'm not trying to be rude or show the Court any lack of respect, but I was under the impression that we --

THE COURT: Well, you're under the wrong impression.

. . . .

THE COURT: And what's your objection [to the detective reading the statement?]

MR. KELLY: When Your Honor reserved on the motion to suppress . . . it was my position that there was an intrusion onto the property. That, in essence, it was an illegal search and seizure. That taking Mr. Vierheilig down to the police station, most respectfully, and questioning him was the fruits of the illegal entry into the garage. So you can appreciate my position, Your Honor, when I'm still under the impression that the motion to suppress is still being heard.

Now Your Honor -- when Your Honor said I reserved on the motion to suppress, most respectfully, there had been nothing before the Court indicating the circumstances surrounding the taking of the statement. So, my position, obviously would be we're continuing with the motion to suppress and the admissibility of the statement is an issue, most respectfully, and the circumstances surrounding his taking of the statement, not the content of the statement. . . .

. . . .

THE COURT: Look, I have reserved decision. I would like to proceed with the decision and if I decide to grant your motion after hearing everything, everything's out the window anyway. So, what difference does it make?

. . . .

THE COURT: Right. We'll proceed. Bring the witness back in.

MR. KARCH: Once again, Your Honor -- and I say this the most respectfully -- I'm going to object to this aspect --

THE COURT: All right.

MR. KELLY: -- because the basis of the motion to suppress was there was zero testimony from Detective Casson.

THE COURT: I am the trier of fact. Okay? I have little facts at this point and none whatsoever in the beginning when you first argued your motion to make a determination. I have to hear the case to make the determination. Call your witness in.

The detective read defendant's statement admitting guilt to the two charges and completed his testimony. Over defense counsel's objection, the statement was marked into evidence. The State rested and defense counsel indicated he was calling no witnesses. Upon defense counsel's request, the court permitted the submission of post-trial briefs, and reserved decision on the suppression motion and determination of guilt. Defense counsel argued that the transportation of defendant to the police station amounted to a warrantless seizure and defendant should have been advised of his right to refuse consent, citing State v. Johnson, 68 N.J. 349 (1975); thus, based on the violation of his Fourth Amendment rights, his subsequent inculpatory statement was inadmissible.

The municipal court judge rendered an oral decision on April l2, 2005, denying defendant's motion to suppress and finding defendant guilty of both charges. The judge found as a fact that the officers observed an open garage with a gold Maxima being worked on, went up the driveway, "discussed things with the defendant and then with his consent, they took him to the police department." The judge concluded no warrant was needed for defendant's arrest because the car was in clear view of the officers and that defendant's Fourth Amendment rights were not violated. The judge further found defendant signed a confession voluntarily at the police station, noting "[t]here's no evidence before the Court that the confession was involuntarily received." Defendant was fined $100 plus costs on the careless driving charge and $200 plus costs for leaving the scene; the sentence was stayed pending appeal.

On appeal to the Law Division, defendant, then represented by his current counsel, argued that the municipal court hearing was convoluted and procedurally flawed in that the judge failed to rule on the suppression motion before trial or before the statement was offered and further failed to advise defense counsel that he was not separating the proceedings. Defendant contended this precluded him from testifying at the suppression hearing and deprived him of his constitutional rights to a fair trial and to present a defense. Counsel represented that defendant wanted to testify on the motion to suppress but not at trial, and made a proffer there would have been testimony regarding motive, that the garage could not be observed from the street and that it was blocked by vehicles in the driveway, whether defendant lived at that address, and regarding "trickery utilized by the [officers] to [get defendant] to go to the station with them." Defense counsel further contended that trial counsel had photographs, presumably of vehicles in the driveway, that he did not present because they were not relevant to the trial, but only to the motion. Defendant requested a remand to municipal court or for the Law Division to take additional testimony as an alternative to a post-conviction relief (PCR) petition asserting ineffective assistance of trial counsel.

Defendant also argued that the statement should have been suppressed as the product of an illegal search. He contended the police improperly went onto private property without a warrant and the chief and detective either "arrested" defendant by constraining his liberty and required him to go to headquarters or if there was not an arrest, did not tell him he did not have to go, either way invalidating the subsequent statement. The prosecutor argued that defendant did not have standing to challenge any search or seizure occurring on his sister's property. Alternatively, he argued the officers' investigation following their plain view observation from the sidewalk was limited to the driveway, which was not protected curtilage; and defendant voluntarily accompanied the officers to the station and voluntarily gave a confession.

In a written opinion of December 2, 2005, the Law Division judge denied defendant's motion to suppress. The court noted that over the prosecutor's objection, it had permitted defense counsel to present his argument about the unfairness of the municipal court procedure although it had not been briefed, and thus it should be waived. Nevertheless, it concluded on the merits that the municipal court judge did not violate defendant's rights by reserving decision on the motion and proceeding with trial for the following reasons: it was not a jury trial; it furthered judicial economy in high volume municipal courts; and it was not prohibited by Rule 7:7-2(b), which allows a judge to hear, and hence decide, a motion made before trial at any time. The court further noted that trial counsel "could have specifically requested that any testimony by the defendant be considered solely on the issue of suppression [but] [h]e did not do so[,]" citing to State v. Petrovich, 125 N.J. Super. 147, 153 (Law Div. l973), which holds that incriminating testimony elicited during a suppression hearing is inadmissible as substantive evidence against a defendant at trial.

On the merits of the motion, the Law Division judge found defendant's confession was admissible for the following reasons: (1) defendant lacked standing to challenge the search or seizure because he had no "reasonable expectation of privacy or a proprietary, possessory, or participatory interest in his sister's property"; and, alternatively, (2) the officers' entry onto the property was "proper and legal" and "the officers did not need a warrant" based on their observations from the sidewalk and right to walk down the driveway, which was not a protected area of curtilage, and speak with defendant, who was exposed to the public view, State v. Nikola, 359 N.J. Super. 573 (App. Div.), certif. denied, 178 N.J. 30 (2003); (3) "[b]ased on [the totality of] the circumstances in the transcript, a reasonable person would not have concluded that he was under arrest [as] [t]he police encountered the defendant working in his sister's garage and did not approach defendant in a threatening manner, and the defendant agreed voluntarily to accompany police to the stationhouse"; and (4) defendant provided a statement at the stationhouse after "voluntarily, intelligently, and knowingly" waiving his Miranda rights.

On December 15, 2005, the Law Division judge entered an order, denying defendant's motion to suppress, finding defendant guilty, de novo, of careless driving and leaving the scene, and imposing the same fines and costs as below. On January 3, 2006, the Law Division judge entered an order imposing a mandatory six-month suspension of defendant's driving privileges on his conviction for leaving the scene of a motor vehicle accident pursuant to N.J.S.A. 39:4-129(b). The sentence was stayed pending appeal.

On appeal, defendant renews his arguments made below. He contends the procedure followed in the municipal court was flawed because the judge failed to advise that he was not separating the suppression motion from the trial, which deprived defendant of the opportunity to testify solely on the motion to suppress and "present his defense as guaranteed by the federal and state constitution." According to defendant, it is "essential" he testify "as to the circumstances surrounding his being taken into custody and whether this constituted an 'arrest'"; as to the "voluntariness of the uncounselled statement that he gave"; that "the garage is more than 20 feet from the sidewalk and the [door] does not face the street as well as it being blocked by vehicles"; and on the "standing" issue. Defendant contends the prejudice resulting from these procedural irregularities mandates reversal of his convictions and a new trial. Defendant alternatively asserts ineffective assistance of trial counsel by not having him testify in municipal court and requesting his testimony be considered only on the motion to suppress, not the trial; by failing to present any defense witnesses to dispute the view of the garage from the street; and by failing to investigate and inquire as to why the police went to the address in question. Defendant further challenges the Law Division's determination of the merits of his motion, contending he did not lack standing to challenge the search, or at the very least, he must be given the opportunity to testify and/or present evidence as to this issue; the search and seizure was illegal as the officers needed a warrant to effectuate his arrest; and his confession was inadmissible as the product of an unlawful arrest.

We are not convinced by defendant's arguments. We agree that the municipal court judge did not follow the proper procedure and should have ruled on the suppression motion prior to trial or, at least, before the inculpatory statement was offered. See R. 7:5-2(b) (Motion to Suppress Evidence - Procedure - "All Motions to suppress shall be heard before the start of the trial."). We are not convinced, however, that the municipal court judge's actions prejudiced defendant or denied him a fair trial. Defense counsel believed the municipal court judge was trying the motion to suppress until the State's last witness, Detective Casson, began to read the inculpatory statement. Therefore, defense counsel's cross-examination of the prior witnesses was what he wanted to do by way of discrediting the admissibility of the confession. When the judge clarified that he had reserved decision on the suppression motion and "this was the trial," defense counsel also had ample opportunity to cross-examine Detective Casson so as to discredit the admissibility of defendant's confession. In fact, defense counsel conducted extensive cross-examination of the detective regarding his entry onto the property, the circumstances surrounding his escorting defendant to the police station and his failure to prepare an incident report.

After the inculpatory statement was moved into evidence, defense counsel requested and made legal argument on the suppression motion, addressing the issue of whether there was a "seizure" at the garage or whether defendant went voluntarily to the police station. In response, the judge commented that was an issue of fact he would have to decide. If defendant had intended to testify about conduct by the officers that restricted his liberty or compelled him to go to the station, defense counsel easily could have requested at that point that defendant testify on the suppression issue, subject to the State v. Petrovich restrictions. He did not. Furthermore, when he was asked if he had any witnesses after the State rested, defense counsel affirmatively stated that he had "none," knowing the judge was reserving decision on the suppression motion. It is clear from the record that defense counsel gave no indication to the municipal court judge that defendant wanted to testify in any capacity, nor did he make the proffer of what defendant's testimony would have been that present counsel made to the Law Division judge.

Regardless, even if defendant had testified as proffered, his suppression motion would still fail as a matter of law for the reasons articulated by the Law Division judge. Whether the car could be seen from the sidewalk was irrelevant as the police did not need a warrant to walk down the driveway to the garage to speak to defendant. State v. Nikola, supra, 359 N.J. Super. at 581. Fourth Amendment protections are limited to a person's house and the "curtilage" of the house. United State v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334 (1987). "[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself." Ibid. Furthermore, "a portion of the curtilage, being the normal route of access for anyone visiting the premises, is 'only a semi-private area.' . . . Thus, when the police come on to private property to conduct an investigation . . . and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment." State v. Johnson, 171 N.J. 192, 209 (2002) (quoting 1 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment, 2.3(f) (3d ed. l996)). We note that defendant makes no proffer that there was a fence across the driveway or any other measures taken to prevent visitors from using the driveway to access the property. The testimony was undisputed that the officers remained on the driveway when they spoke with defendant and did not enter the garage, thus they were not subject to any constitutional constraint.

Moreover, defendant's proffer of testimony of "trickery" by the officers to get him to go to the station with them would be insufficient, under the totality of the circumstances, to constitute a "seizure" or "arrest" at the house. The test for determining whether a seizure has occurred within the meaning of the State and federal constitutions is whether an objective and reasonable person would conclude, in light of the surrounding circumstances, that such person's liberty has been restricted and he or she is not "free to leave." State v. Davis, 104 N.J. 490, 498 (1986); see also United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980). As the United States Supreme Court noted in Terry v. Ohio, 392 U.S. l, l9 n.16, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 905 (1968), "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred."

An analysis of whether a person's liberty is restricted should be based on the totality of the encounter. State v. Tucker, 136 N.J. 158, 165-66 (1994); State v. Davis, supra, 104 N.J. at 498. Examples of circumstances indicating a seizure "would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. Mendenhall, supra, 446 U.S. at 554, 100 S. Ct. at 1877, 64 L. Ed. 2d at 509. Infringement upon the freedom to leave the scene is also an indication of a seizure. State v. Stovall, 170 N.J. 346, 357-58 (2002). There was no proffer by defendant that any of these circumstances were present here. Accordingly, the record amply supports the Law Division judge's finding that defendant voluntarily agreed to accompany Detective Casson to headquarters. We are also satisfied that the voluntariness of defendant's confession is not in dispute as defense counsel made no proffer to the Law Division judge respecting this issue.

State v. Johnson, supra, 68 N.J. at 354, does not support defendant's argument that failure of the officers to inform him of his right to refuse their request to accompany him to headquarters is an automatic basis for suppression of his subsequent statement. Johnson involved a seizure of items resulting from a search of an apartment based on consent. Here, there was no search. Furthermore, even in that instance, the Court did not mandate that the police expressly inform the person involved of his right to refuse consent for there to be a finding of voluntary consent. The Court stated:

[I]n a non-custodial situation, such as here presented, the police would not necessarily be required to advise the person of his right to refuse to consent to the search. Our decision is only that in such a situation if the State seeks to rely on consent as the basis for the search, it has the burden of demonstrating knowledge on the part of the person involved that he had a choice in the matter.

[68 N.J. at 354.]

 
We will not address defendant's claim of ineffective assistance of trial counsel on direct appeal. Ineffective assistance of counsel claims, generally, are more appropriately raised in a collateral proceeding "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, l 29 N.J. 451, 460 (1992). Our affirmance of defendant's conviction is without prejudice to any PCR petition defendant may timely pursue on the basis of ineffective assistance of counsel. State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. l99l).

Affirmed.

Defendant's mother was the mayor of Midland Park.

Chief Klingen did not testify.

In response to a subsequent inquiry by the court, the detective explained that the property is "sandwiched between Center Street and Godwin Avenue" and the detached garage is situated "sideways on the property" and "you don't go into it like a regular garage [but] [y]ou come in and you have to make a right if you drive in the driveway."

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

Although defense counsel characterized the hearing as "convoluted and flawed" in his statement of facts, he made none of these arguments in his brief, arguing instead the lack of probable cause as the basis for suppression.

Rule 7:7-2(b) provides: "Hearings. A motion made before trial shall be determined before trial unless the court, in the interest of justice, directs that it be heard during or after trial."

Defendant would not have been precluded from testifying by his counsel's statement at the commencement of the municipal court proceeding that he "had no witnesses." This statement was made in the context of the sequestration order after the State noted it had no objection provided defendant's witnesses were subject to the same restriction and it identified its witnesses. There would be no reason to identify defendant as a witness as he would not be subject to a sequestration order. See State v. Fusco, 93 N.J. 578, 584 (1983) (noting that a criminal defendant has a constitutional right to be present during an entire trial, and thus the most important reason for sequestering a witness, i.e., preventing the witness from being exposed to other witness' testimony, is not applicable to a defendant)(citing Geders v. United States, 425 U.S. 80, 88, 96 S. Ct. 1330, 1335, 47 L. Ed. 2d 592, 599 (1976)); see also State v. Robertson, 333 N.J. Super. 499, 509 (App. Div. 2000) (holding that a defendant has a constitutional right to be present at an evidentiary suppression hearing).

(continued)

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A-3032-05T5

July 12, 2007