STATE OF NEW JERSEY v. KEVIN L. WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5672-05T25672-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN L. WILLIAMS,

Defendant-Appellant.

 

Argued November 14, 2007 - Decided

Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 05-12-2609-I.

Stephen Funk argued the cause for appellant (Jacobs & Barbone, attorneys; Amy R. Weintrob, on the brief).

Dana Citron, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. Citron, of counsel and on the brief).

PER CURIAM

An Atlantic County Grand Jury returned Indictment No. 04-06-1286-B-GVU against defendant, charging him with three counts of third-degree unlawful possession of a weapon, a 9mm handgun, a .45 caliber handgun, and a .357 caliber handgun, without having first obtained a permit, N.J.S.A. 2C:39-5b; and three counts of second-degree possession of a weapon after having been convicted of the crime of distribution of a controlled dangerous substance, N.J.S.A. 2C:39-7.

Following the denial of defendant's motion to suppress the weapons, a sweatshirt, and his statements to police, pursuant to a plea agreement he pleaded guilty to a single count of third-degree possession of a weapon. The court imposed a flat five-year sentence, to run concurrent to a sentence the court imposed on a second indictment, charging defendant with various drug offenses. The court dismissed the remaining charges.

On appeal, defendant challenges the court's denial of his suppression motions, specifically raising the following points:

POINT I:

[THE MOTION JUDGE'S] FINDINGS REGARDING THE DEFENDANT'S CREDIBILITY WERE CLEARLY ERRONEOUS.

POINT II:

THE WARRANTLESS ENTRY INTO THE PREMISES AND SUBSEQUENT SEIZURE OF A SWEATSHIRT WERE ILLEGAL.

POINT III:

THE CONSENT TO SEARCH WAS OBTAINED THROUGH COERCION, BY REASON OF WHICH EVIDENCE OF THE GUN RECOVERED SHOULD HAVE BEEN SUPPRESSED.

We reverse that potion of the court's order denying defendant's motion to suppress his pre-Miranda statements, but affirm his judgment of conviction.

We take the facts from the testimony at the suppression hearings.

On May 9, 2004, at 1:50 p.m., Atlantic City Police Officer Eugene Maier responded to 902 Drexel Avenue in Atlantic City to a report of shots fired. Upon arriving, Maier was approached by Virginia Coley, who told him that she had just seen three men get out of a white four-door car, remove several guns from the trunk, and shoot the guns. She recognized two of the men; one was defendant, and the other was his brother, Shakeem Williams. Coley described defendant as a heavy-set black male with corn rows in his hair and wearing a gray sweatshirt. Maier radioed this information to police dispatch.

Officer Michael Gavin received the information and learned that defendant had been arrested a few days earlier on a warrant. Gavin obtained defendant's address from the Sheriff's Department, and at approximately 2:26 p.m., he and Officer Robert Thompson and another officer arrived at defendant's address, 870F North Virginia Avenue, Atlantic City, the end unit of a two-story apartment building. The unit had windows on three sides. When they arrived, Gavin saw a white four-door car, matching the description of the car described by Coley, parked behind the rear door of defendant's apartment. The hood of the car was warm. The car was registered to defendant at that address. Gavin also observed a man on the second floor looking out the window and then quickly closing the blinds. He also saw a bullet hole in the back door of the apartment.

Maier arrived at approximately 2:41 p.m. Looking in the apartment's window, he did not see any movement, but heard music playing. Maier, Gavin, and Thompson approached the front door; Gavin knocked on the door and made an "announcement." Someone inside the apartment responded, "I'll be right there." Michael Ingram opened the door with defendant standing behind him. Gavin ordered both men out, where they were patted-down and handcuffed. Gavin explained to defendant that the police were there to investigate a shooting in which they believed he and his brother were involved. Another individual, Rodney Collins, appeared at the door and the police also ordered him out and handcuffed him.

When Gavin asked defendant if anyone else was in the unit, defendant responded that his brother was. Gavin made another announcement at the door, and defendant's brother, Shakeem Williams, came down from upstairs. After he was removed from the apartment, Gavin and two other officers entered the premises to "clear [it] for people." While inside, the officers limited their search to areas where a person could have hidden; they did not find anyone. On his way out, Gavin saw a gray sweatshirt in the living room; the sweatshirt appeared to match the description of the sweatshirt provided by Coley. He seized the sweatshirt and removed it from the apartment.

After leaving the apartment, Gavin showed defendant, who was still in handcuffs, the sweatshirt and said: "this is even the sweatshirt they said you were wearing." Defendant responded that it was his sweatshirt and he had been wearing it for the previous two days.

The police subsequently removed the handcuffs from defendant, but it is unclear exactly when. Gavin again told him that the police were there because someone had said he had fired a gun. Defendant responded: "They said we shot the gun?" He also told Gavin that someone had fired shots into the back of his apartment the day before.

Gavin then administered Miranda warnings to defendant, who acknowledged understanding the warnings. Defendant told Gavin that he was concerned that his children and their mother would be evicted if the landlord found out about the investigation. Gavin responded, "we're not in the business of going over to management and telling them anything that happened . . . [t]hat's not our business, as police officers, to go over and knock on the door and tell them." He told defendant that if management asked about the investigation, he would say defendant cooperated.

Gavin asked defendant to sign a consent to search the apartment. Defendant replied by asking to speak with another officer, Harold Lathan. After speaking briefly with Lathan, defendant asked Gavin to step into the apartment. Inside, Thompson appeared with a consent form to search the apartment. He read the consent form to defendant, who asked if they were going to "tear the place up." Gavin responded that they would not if he told them where the gun was. He handed the form to defendant, who looked at it for a few minutes before signing it. Gavin told him that because "[n]obody was shot," he would only be charged with possession of a weapon. Defendant then told Gavin that the gun was in the chair where the sweatshirt had been found. After a loaded .32 caliber gun was recovered from the fabric of the chair, defendant was re-handcuffed and placed in a patrol car.

Gavin then spoke to Lieutenant Brennan, who said he was seeking a search warrant for defendant's car; he was waiting for a call-back from the prosecutor's office. Gavin relayed this information to defendant. He asked defendant if he would consent to a search of the car, telling him that if weapons were recovered from the car, he would not face additional charges. Defendant agreed. Thompson recovered three guns from the trunk of defendant's car.

Defendant filed motions to suppress the three guns found in his car, the gun and sweatshirt found in his apartment, and his statements to police. Following testimonial hearings, the judge suppressed the guns taken from defendant's car, but denied the motion to suppress the handgun and sweatshirt recovered from the apartment, and the motion to suppress defendant's statements to police. The court also found that the consent to search the apartment was valid.

The court reasoned that the police had a right to enter the apartment without a warrant because of exigent circumstances; specifically, the need to keep the police and public safe. The court found that the police were in "fresh pursuit" and the circumstances tied the people in the apartment to the shooting. With regard to the seizure of the sweatshirt, the court found that because the police were lawfully in the apartment, and the sweatshirt was in plain view and had been described by Coley, it was admissible under the plain view doctrine.

We begin with an examination of whether the police lawfully entered defendant's premises. The trial judge found that the police had probable cause and there were exigent circumstances so as to permit the police to enter the apartment without a search warrant. We agree.

A warrantless search of a home is presumptively unreasonable unless it falls within one of a few well delineated exceptions. State v. Wilson, 178 N.J. 7, 12 (2003). One of those exceptions is the existence of exigent circumstances that make it "impractical, unsafe or counterproductive to await a warrant." State v. Ulrich, 265 N.J. Super. 569, 573 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994). A number of factors bear upon whether exigent circumstances exist:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause; and (9) the time of the entry.

[State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990).]

The facts here implicate many of these factors. The police arrived at the apartment, located in a residential area, after being informed by Coley that defendant and other individuals, including his brother, had been seen shooting guns less than an hour earlier. Coley said there were multiple suspects with multiple guns involved in the shooting. When they arrived at the suspect's home, the police observed a bullet hole in the apartment door. The car that Coley described was parked behind the suspect's apartment and the hood was still warm. The police spotted a man looking down at the officers from a window and then immediately closing the blinds. This created a more dangerous situation for the officers because their presence was known to the suspects.

The guns remained unaccounted for and could have been inside defendant's apartment. Although the police initially ordered everyone out of the apartment, defendant's brother had remained inside. Others could also have been in the home. The police did not know if anyone who may have remained in the apartment was in possession of the guns or intended to use them. Thus, the police had an urgent need to enter the home.

The facts also strongly established probable cause for police to believe that the weapons were in the apartment. Alvarez, supra, 238 N.J. Super. at 568 (strength or weakness of facts establishing probable cause is a factor to consider to establish exigent circumstances). Defendant and his brother had been specifically identified by an eyewitness as shooting the guns; the car that the witness identified was parked outside of defendant's apartment and the hood was still warm. There was a bullet hole in the apartment door. Even defense counsel conceded in his brief that the police "probably had probable cause" to search the apartment.

Defendant argues that the police had time to obtain a warrant by telephone. We agree with the trial judge that under the circumstances, waiting for a search warrant would have created an unnecessary risk to both the investigating officers and the public. Potentially, other persons remained in the apartment, perhaps with guns, and with the ability to either create a plan of escape or use the guns against the police officers and/or the public. These circumstances did not require the officers at the scene to run the risk of waiting for a warrant, even if a warrant could have been expeditiously obtained by phone.

A recent decision of another panel of this court is instructive in our analysis. In State v. Laboo, 396 N.J. Super. 97, 100 (App. Div. 2007), several armed robberies had been committed by three individuals between the hours of 8:00 a.m. and 9:00 a.m. The victims were robbed of their cell phones. Ibid. The next afternoon, police used the cell phones' signals to track the suspects to a second floor apartment. Id. at 100-01. A police officer knocked on the door and announced that he was a police officer. Id. at 101. He heard a female voice yelling, and a man saying "shut-up 5-0"; he also heard movement in the apartment. Ibid.

With guns drawn, the police broke down the door, "knowing that they were in a high crime area, [and] that the robberies involved males who were armed with handguns." Ibid. The police officers entered out of concern for the police officers on the scene and the public.

The trial court granted the defendant's motion to suppress the evidence found when the police entered the apartment; the judge found that there were no exigent circumstances. Ibid. We reversed, holding that the circumstances

were sufficiently exigent to justify the warrantless entry into the apartment. The officers had probable cause to believe that the delay involved in procuring a warrant might gravely endanger themselves or other persons. The seriousness of the offenses, along with the close proximity in time [approximately thirty hours], and the real possibility that the suspects were armed, combined to establish the necessary exigent circumstances.

[Id. at 108.]

We observed that the police were conducting reasonable investigation and had no "advance notice of who was actually in the dwelling or what response might be generated by knocking on the door and announcing their presence." Id. at 106-07. The situation became dangerous for the police once the suspects knew that the police where there. Id. at 107. Exigent circumstances created the need for the officers to act to avoid harm to both themselves and the public. Ibid.

The facts here are similar. Like the police in Laboo, the officers were investigating a serious offense involving weapons. This case has even more compelling circumstances for a finding of exigency because the warrantless search occurred less than an hour after the shooting, rather than the thirty hours later in Laboo. This created a greater likelihood that the suspects were still armed. The police had reason to believe that if they waited for a warrant they would place themselves and the public at risk of harm. After an analysis of the relevant factors and in light of Laboo, we conclude that exigent circumstances justified the warrantless search.

Moving to the sweatshirt, we conclude that its seizure was warranted under the plain view doctrine. That doctrine requires: (1) the officer must be lawfully on the premises; (2) the evidence must be discovered inadvertently, meaning that the officer "'did not know in advance where evidence was located nor intend beforehand to seize it;'" and (3) it must be immediately apparent that the item is contraband. State v. Johnson, 171 N.J. 192, 206-07 (2002) (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)).

For the reasons we have just indicated, the officers were legally in the apartment when they observed the sweatshirt in plain view and seized it. The evidence was discovered inadvertently. Gavin testified that as he was leaving the apartment after searching for additional suspects, he saw the sweatshirt lying on a chair. It was immediately apparent to him that the item was evidence of the crime because he had been told that the witness, Coley, had stated that defendant was wearing a gray sweatshirt during the shooting. As such, the sweatshirt was admissible under the plain view doctrine.

Defendant also claims the guns found in the apartment should have been suppressed because his consent to search was not voluntary. To examine this claim, we first analyze whether defendant's Miranda rights were violated.

Miranda warnings are required before police engage in custodial interrogation. State v. Coburn, 221 N.J. Super. 586, 595 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988). An individual is deemed to be in custody within the meaning of Miranda when a reasonable person would not believe he is free to leave. Id. at 596. The individual is interrogated within the meaning of Miranda when he is subjected to questioning by police, or its functional equivalent, that is likely to elicit an incriminating response. State v. Brown, 282 N.J. Super. 538, 549 (App. Div.), certif. denied, 143 N.J. 322 (1995).

We begin with defendant's pre-Miranda statements. The trial court found that these statements were admissible because they were exculpatory. We disagree. The "governing constitutional rule in respect of a criminal defendant's oral statements [is that] 'the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.'" State v. O'Neal, 190 N.J. 601, 621 (2007) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706). Here, defendant was handcuffed and substantially surrounded by police officers when he was approached by Gavin with the sweatshirt. Gavin's statements to him regarding the sweatshirt were likely to elicit, and did in fact elicit, an incriminating response. After Gavin found the sweatshirt, he immediately walked up to defendant, showed him the shirt, and said: "listen . . . this is even the sweatshirt they said you were wearing, this colored sweatshirt." Defendant admitted the sweatshirt was his and he had been wearing it the previous two days. After additional questioning by Gavin, defendant told him that someone had fired shots into the back of his apartment the day before.

Gavin's statement to defendant was the functional equivalent of interrogation. In view of the surrounding circumstances, it was inherently coercive. The accusatory tone of the statement elicited an incriminating response. The "[f]ailure to administer Miranda warnings creates a presumption of compulsion." Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct. 1285, 1292, 84 L. Ed. 2d 222, 231 (1985). The State has not rebutted that presumption. Defendant's pre-Miranda statements were the result of a custodial interrogation and should have been suppressed.

We turn next to defendant's post-Miranda statements. Post-Miranda statements are admissible when the State proves they were made after an individual has knowingly, intelligently, and voluntarily waived his Miranda rights. State v. Knight, 183 N.J. 449, 461 (2005). Whether a waiver is voluntary depends on the totality of the circumstances, with a promise made by police being a factor in that determination. State v. Pillar, 359 N.J. Super. 249, 271-72 (App. Div.), certif. denied, 177 N.J. 572 (2003). Defendant here asserts that his Miranda waiver was not voluntary because the police made promises to him before he waived his rights. When the police make promises to a defendant, to vitiate the voluntariness of the defendant's Miranda waiver, the promises must be such as to overbear the defendant's will. United States v. Robinson, 698 F.2d 448, 455 (D.C. Cir. 1983). Here, though the police did make promises to defendant, they were not such as to overbear his will as to negate the voluntariness of the Miranda waiver.

Prior to defendant telling the police that the gun was located in the chair where the sweatshirt was found, defendant expressed concern about his landlord finding out about the investigation as well as about his apartment getting torn apart if he consented to a search. Gavin told him that

[w]e're not in the business of going over to management and telling them anything that happened . . . [T]hat's not our business, as police officers, to go over and knock on the door and tell them. . . . I would make sure that I did not go over to management and let them know that if anything came out of it, that Mr. Williams was cooperative with the whole investigation . . . I told him we were looking for a gun. If he wants to point us in the direction of where it is and give it up, that that was it.

Gavin also told defendant that "there was no complainant, that he wasn't charged. Nobody was shot. He wasn't going to be charged with anybody being shot or with aggravated assault. That it was only going to be a charge of possession of a weapon." Defendant then told Gavin where to find the gun.

Considering the totality of the circumstances, defendant's Miranda waiver was voluntary. At the time he decided to speak, he was no longer in handcuffs. He was told by Gavin that he would not be charged with shooting the gun, which he was not. The promises concerning the police informing defendant's landlord were not coercive. Gavin's statements were not sufficient to overbear defendant's will. See Robinson, supra, 698 F.2d at 455.

That takes us to whether defendant's post-Miranda statements were infected by his pre-Miranda statements. The admissibility of a post-Miranda statement after a suspect has given a pre-Miranda statement is determined by five factors:

(1) [t]he completeness and detail of the questions and answers in the first round of interrogation; (2) [t]he overlapping content of the two statements; (3) [t]he timing and setting of the first and second rounds; (4) [t]he continuity of police personnel; and (5) [t]he degree to which the interrogator's questions treated the second round as continuous with the first.

[State v. O'Neill, 388 N.J. Super. 135, 146 (App. Div. 2006) (citation omitted).]

Here, though the pre- and post-Miranda warning questions were closely related in time, they were not so related in content. Defendant never discussed possession of, or the location of, the gun in his pre-Miranda statements; as such, the post-Miranda statements were not a mere continuation of the initial pre-Miranda interrogation. Nor, under the circumstances, did the pre-Miranda questioning undermine defendant's ability to exercise his free will after he was given his Miranda warnings. See Brown, supra, 282 N.J. Super. at 551-52 (pre-Miranda interrogation did not undermine suspect's ability to exercise his free will).

We next address defendant's argument that his consent to search the apartment was not voluntary. The test for a valid consent to search is whether the individual knowingly waived his right to refuse to consent, with the knowledge that he had a choice to so refuse. State v. Johnson, 68 N.J. 349, 354 (1975). The burden is on the State to prove that the consent to search was voluntary. Id. at 352.

The record supports a finding that defendant voluntarily consented to the search. Prior to defendant signing the consent, Thompson read the consent form to him:

I, Kevin Williams, hereby authorize Officer M. Gavin . . . and any other officer designated to assist, to conduct a complete search of 870-F North Virginia Avenue in Atlantic City. . . . I have knowingly and voluntarily given my consent without fear, threat, promise, expressed or implied. In addition, I have been advised by Officer M. Gavin, badge number 508, that I have a right to refuse giving my consent to search.

Defendant was then given the form to review before signing and he appeared to read it. Gavin testified that he told defendant twice that he had the right to refuse to consent to the search. Defendant was not coerced into giving his consent. Consequently, the consent was valid.

We therefore affirm the trial court's suppression order with the exception of defendant's pre-Miranda statements. The next question then is whether, if the pre-Miranda statements had been suppressed, defendant would have nevertheless pleaded guilty. Under the circumstances, we conclude that the failure to suppress the pre-Miranda statements was harmless.

Defendant was charged with three second-degree offenses and three third-degree offenses. He pleaded guilty to one count, a second-degree offense reduced to a third-degree offense, and received a five-year flat prison term. The pre-Miranda statements focused substantially on the accusations made in reference to the shooting itself, that is, the clothing defendant was wearing and that he was the individual who shot the gun. He was never charged with firing the weapon, simply possessing it. In that we have concluded that the officers lawfully entered the premises, the consent to search was valid, and the post-Miranda statements were not obtained in violation of defendant's rights, we conclude that the failure to exclude the pre-Miranda statements was not clearly capable of producing an unjust result. We therefore find no need to remand to the trial court to determine whether defendant would have entered the guilty plea had the pre-Miranda statements been suppressed.
Consequently, we affirm his judgment of conviction.

This indictment was superseded by Indictment 05-12-2609. This indictment is not included in the record; the judgment of conviction, however, refers to this latter indictment number.

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

(continued)

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A-5672-05T2

December 7, 2007