STATE OF NEW JERSEY v. DONALD SONNYLAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6204-05T16204-05T1

A-6205-05T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DYLAN RODAS,

Defendant,

and

DONALD SONNYLAL,

Defendant-Respondent.

___________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DYLAN RODAS,

Defendant,

and

DONALD SONNYLAL,

Defendant-Appellant.

___________________________________

 

Submitted January 16, 2007 - Decided

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Indictment No. 05-04-738-I.

John L. Molinelli, Bergen County Prosecutor,

attorney for appellant in A-6204-05T1 and for respondent in A-6205-05T1 (Dion Findley, Assistant Prosecutor, of counsel and on the brief).

Curtis J. La Forge and Associates, attorneys

for appellant in A-6205-05T1 and respondent

in A-6204-05T1 (Mr. La Forge and Loren

La Forge, on the brief).

PER CURIAM

On leave granted, the State and defendant each appeal from provisions of a May 16, 2006, order that granted in part and denied in part defendant's motion to suppress evidence. The appeals have been consolidated for purposes of this opinion.

We affirm on both appeals.

The evidence at issue was (a) an oral statement made by defendant in which he admitted to leasing an apartment in Hackensack, (b) approximately 125 marijuana plants that were found in the Hackensack apartment, and (c) a hand-written statement given by defendant at the Bergen County Police Department in which defendant confessed to owning and growing the marijuana.

The motion judge, after an evidentiary hearing, delivered an oral opinion on May 9, 2006, holding (a) that the initial statement admitting an interest in the Hackensack apartment was not preceded by necessary Miranda warnings and must be suppressed, (b) that the search of the Hackensack apartment was not authorized by defendant's voluntary and knowing consent and must be suppressed, and (c) that the handwritten confession was admissible. The State appeals from the first two decisions and defendant appeals from the third.

Our review of a judge's resolution of a motion to suppress requires us to determine if the judge's factual findings are supported by substantial credible evidence in the record and if appropriate conclusions of law were drawn from those findings. If that is the case, the decision may not be disturbed. State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992) certif. denied, 133 N.J. 441 (1993); State v. Boone, 114 N.J. Super. 521, 525 (App. Div.) (citing State v. Johnson, 42 N.J. 146 (1964)), certif. denied sub nom. State v. Terry, 58 N.J. 595 (1971). Accordingly, we review the evidence developed at the suppression hearing to determine if the judge's conclusions have a sufficient evidential basis.

The facts relating to the motion were developed in a six-day hearing in March 2006. The evidence revealed that the police had obtained information that contraband was located in a Hackensack apartment, which they were also told was leased by defendant. The police did not know if they had sufficient information to obtain a warrant. Instead of attempting to obtain a warrant, the police went to defendant's home in River Edge for the purpose of obtaining defendant's consent to search the Hackensack apartment and to determine if he was the lessee of the unit. Three police officers arrived at defendant's home in River Edge sometime before 9:00 a.m. on January 15, 2005. The officers asked to speak to defendant, who came to the door wearing pajama bottoms and a t-shirt, without shoes, jacket or socks. He spoke briefly to the police and then walked outside with them.

While he was speaking with the officers, "one was to his left, one was to his right, one was in front of him." In response to a question, defendant admitted being the lessee of the Hackensack apartment and agreed to allow the police to search it. Defendant was not advised verbally that he had the right to refuse. Defendant's mother, who witnessed the events, testified that defendant executed a written form acknowledging his consent without reading it. The evidence also permitted a finding that defendant was outside with the police for less than one minute. After signing the consent to search, defendant "asked . . . if he could go back in and get sneakers and a coat." The police agreed and defendant re-entered his home accompanied by an officer wearing a ski hat.

Defendant was then transported to the Hackensack apartment where the marijuana plants were found, plainly visible from the hall. Defendant was then arrested and given Miranda warnings. He was returned to the Bergen County Police Department where he was again given Miranda warnings. He ultimately provided a handwritten statement at approximately 7:00 p.m. acknowledging his ownership of the plants.

On these facts, the motion judge determined that defendant's admission of his interest in the Hackensack apartment was improperly elicited without the prior administration of the Miranda warnings. The court found that

the detective admitted that [defendant] was a suspect in the case prior to him allowing the consent to search the apartment. Any statements, therefore, made by [defendant] should be stricken based on the failure to apply his Miranda warnings prior to speaking to him on the issue of CDS manufacture and/or distribution.

Miranda warnings are only required when there is a custodial interrogation. State v. Graves, 60 N.J. 441, 448 (1972) (citing State v. Williams, 59 N.J. 493, 501 n.1 (1971)); State v. Lacaillade, 266 N.J. Super. 522, 527-28 (App. Div. 1993) (citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719(1977)). We agree with the judge that the officer's inquiry as to whether defendant owned or leased the Hackensack apartment was an interrogation.

The State's argument that the question was simply intended to elicit information as to whether defendant was the person with whom the police sought to speak is unconvincing. The inquiry was an attempt to connect defendant to the apartment in which police suspected the contraband was located. Any action, including direct questioning, "designed to elicit a response, both helpful to the investigation and incriminatory of [the] suspect" is an interrogation. State v. Ward, 240 N.J. Super. 412, 418 (App. Div. 1990).

Similarly, although the judge did not explicitly deal with the issue of whether the interrogation was "custodial," his opinion, read in its entirety, clearly evidences the judge's finding that defendant was in the custody of the police. "[C]ustody exists if the action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely." State v. Coburn, 221 N.J. Super. 586, 596 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988).
Defendant was, as the judge found while discussing the voluntary nature of his consent to search the Hackensack apartment, confronted with three police officers early in the morning on a January day that was cold enough for one of the officers to wear a ski hat. Defendant's statements and actions occurred after he had, at police request, exited his home dressed in pajama bottoms and t-shirt, but without socks, shoes or a jacket. Under the circumstances, the "request" could, as the judge impliedly found, be reasonably interpreted as a direction. Indeed, after defendant had executed the consent to search, he felt it necessary to ask the police officers if he could obtain additional clothing and when permitted to do so was accompanied by an officer who was present on the possibility that defendant would go out the back door. All of this supports a finding that defendant reasonably believed he was not free to terminate his contact with the police officers confronting him.

The judge's finding that the defendant was in a coercive situation together with those enumerated facts makes clear that the judge intended to find defendant was detained so that Miranda warnings were appropriate. Although, the judge's findings are not as specific as we would like, "we affirm or reverse judgments and orders, not reasons." State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002) (citing Isko v. Planning Bd. of Tp. of Livingston, 51 N.J. 162, 175 (1968); Walker v. Briarwood Condo Ass'n, 274 N.J. Super. 422, 426 (App. Div. 1994)). We are satisfied that the judge's decision was grounded in the record and his reasons for that decision, in context, are sufficient.

With respect to the consent to search, the judge found that defendant "spoke to the police officers in the early morning hours in his pajamas or some other kind of similar wear which the court does find, in fact, he was wearing from the circumstances and that he was not wearing socks, shoes or a jacket in weather that was apparently [thirty-three] degrees Fahrenheit." The court continued that defendant was not advised that he could refuse the police direction and that he "was doing whatever the police directed him to do . . . ." The court concluded that "there is nothing in the record at all to indicate that [defendant] knew that he had a right to refuse or that he had the ability to not cooperate or continue to participate in the conversations with the police officers who responded to his home in River Edge." That finding supports both our conclusion that defendant was in custody and the judge's conclusion that the consent to search was not voluntary. Absent a voluntary consent, which requires an understanding of the right to refuse, the search is invalid. State v. Johnson, 68 N.J. 349, 353-54 (1975).

The State bears the burden to demonstrate that defendant possessed the knowledge that he had the right to refuse to execute the consent. Ibid. The only evidence produced by the State to support that knowledge was the executed consent form which, at the bottom of the printed form contains a statement that defendant has the "right to refuse" to execute the consent. The judge accepted the testimony of defendant's mother's that defendant did not read the statement, a failure which we agree, given the judge's factual findings, was fully justified by the circumstances defendant then faced. The judge appropriately concluded, given his determination that defendant neither read the consent before executing it nor was advised orally that he was not required to sign it, that the State had failed to meet its burden.

The judge further noted that it was unlikely that defendant would have voluntarily consented to a search of an apartment that he must have known would have revealed contraband. Although, as the State points out, confessions are often obtained, defendant's obvious knowledge of the consequences of his consent was appropriately utilized by the judge in reaching his conclusion that defendant's execution of the consent was not voluntary or made with knowledge that he could refuse. That finding is adequately supported by the record and we have no warrant to disturb the judge's ruling suppressing the results of the search.

Finally, we turn to the judge's decision respecting defendant's confession at the police station. That confession followed defendant's arrest which, as we have explained, we agree was the result of a search of the Hackensack apartment unsupported by either voluntary and knowing consent or probable cause. "As a general rule, a confession obtained through custodial interrogation after an illegal arrest should be excluded unless the chain of causation between the illegal arrest and the confession is sufficiently attenuated so that the confession was 'sufficiently an act of free will to purge the primary taint'" State v. Worlock, 117 N.J. 596, 621 (1990) (quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct. 407, 416-17, 9 L. Ed. 2d 441, 454 (1963)). Whether the chain of causation is sufficiently attenuated "is a factual matter for the court." State v. Johnson, 118 N.J. 639, 653 (1990) (citing Brown v. Illinois, 422 U.S. 590, 604 n.10, 95 S. Ct. 2254, 2262 n.10, 45 L. Ed. 2d 416, 427 n.10 (1975)).

In making that determination, New Jersey has adopted "the three-part test promulgated in Brown . . . ." State v. Chippero, 164 N.J. 342, 353 (2000). The factors to be considered are "the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422 U.S. at 603-604, 95 S. Ct. at 2261-2262, 45 L. Ed. 2d at 427." State v. Barry, 86 N.J. 80, 87 cert. denied, 454 U.S. 1017, 102 S. Ct. 553, 70 L. Ed. 2d 415 (1981). The trial judge did not specifically discuss the three

factors in his May 9, 2006, decision but, reading that decision as a whole, we are satisfied that the judge appropriately considered the factors and decided them adversely to defendant.

First, the arrest, which took place shortly after police first interrogated defendant at his River Edge home, occurred some ten hours before the confession was obtained. Second, the administration of two Miranda warnings, first at the Hackensack apartment and then at the police station are intervening factors. Warlock, supra, 117 N.J. at 622. Although the administration of the those warnings is not always decisive, it is "'important . . . in determining whether the confession was obtained by exploitation of an illegal arrest.'" Ibid. (quoting Brown, supra, 422 U.S. at 603, 95 S. Ct. at 2261, 45 L. Ed. 2d at 427).

The judge found that defendant was Mirandized twice and that his confession was voluntary thus suggesting that the confession was not tainted by the illegal arrest. Moreover, the judge found, as we shall discuss momentarily, there was no police misconduct contributing to the confession. Under those circumstances, we take the administration of two Miranda warnings to be an intervening circumstance sufficient to remove any taint of the illegal arrest.

Finally, although the judge did not in his May 9, 2006, decision, speak to the nature of police conduct, he did so on May 30, 2006. On that date, the judge considered an application for reconsideration and had occasion to deal with the prosecutor's comment that "the ruling is clear, I think, that there is no allegation of police misconduct with respect to what happened in River Edge, simply that the State's proofs weren't sufficient." The judge said "I never said anything about police misconduct. I [n]ever mentioned that word once in my decision." In context, the judge's comments constitute a finding that there was no police misconduct, a finding with which we agree.

Although we have affirmed the motion judge's determination that the circumstances surrounding the interaction of police and defendant at his home rendered the confrontation "custodial" and the results thereof inadmissible, we cannot find any evidence in this record to support defendant's claim that the judge improperly found a lack of police misconduct. The lack of "police misconduct is 'particularly' relevant to determining whether the confession is the 'fruit' of [an illegal] arrest." Id. at 624 (quoting Brown, supra, 422 U.S. at 604, 95 S. Ct. at 2262, 45 L. Ed. 2d at 427). As in Warlock, the police here "did not flagrantly or purposely violate defendant's constitutional rights" and the resulting confession was admissible. Id. at 625.

The judge similarly determined that the confession was given voluntarily and with a clear understanding of defendant's. rights. It is true, as defendant argues, that Detective Soldana, the officer assisting the lead detective, testified that he did not know if anyone had threatened defendant or coerced him before Soldana witnessed defendant's confession. We reject defendant's premise that this testimony requires a finding that the State failed to prove the confession was voluntary.

Soldana testified that he was present when defendant was brought to the Detective Bureau. He testified that defendant was calm and not physically restrained. He further testified that the lead detective, now deceased, spoke with defendant for about five minutes after which defendant agreed to provide a statement. Defendant was given a pencil and paper, wrote the statement and initialed corrections defendant had made while writing the statement, and signed it. Soldana's testimony that he did not know what had happened before defendant was brought into his presence cannot provide a basis for a conclusion that defendant was threatened or coerced. To the contrary, the testimony that defendant and the lead detective were both calm and the defendant was physically unrestrained supports the judge's determination that the statement was voluntary.

In short, there was adequate credible evidence in the record to support the judge's determination that defendant's statement at River Edge should have been preceded by the administration of Miranda warnings and that the search of the Hackensack apartment was not supported by a voluntary and knowing consent to search. There is also sufficient evidence to demonstrate that defendant's statement at the police department was voluntary and untainted by the defendant's illegal arrest.

We affirm the judge's decision on both defendant's appeal and the State's appeal.

 

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

The judge's opinion indicates that the police admitted a lack of sufficient cause to obtain a warrant. Although the record does not reveal an explicit admission to that effect, the testimony could be so understood, especially since the judge had the opportunity to evaluate the demeanor with which the testimony was given.

Although the record does not contain any reference that we can locate respecting the temperature, we have previously noted that one of the officers was wearing a ski hat. That, together with the time and date of the event, allows the reasonable inference that the weather was sufficiently cold as to render uncomfortable someone dressed as was defendant.

(continued)

(continued)

2

A-6204-05T1

 

February 27, 2007