STATE OF NEW JERSEY IN THE INTEREST OF J.V.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3199-12T2

STATE OF NEW JERSEY

IN THE INTEREST OF

J.V., a minor

________________________

April 8, 2014

Submitted March 25, 2014 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FJ-20-0843-12.

Joseph E. Krakora, Public Defender, attorney for appellant J.V. (Alicia J. Hubbard, Assistant Public Defender, of counsel and on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent State of New Jersey (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

J.V., a juvenile, appeals from a December 12, 2012 adjudication of delinquency for possession of marijuana, N.J.S.A. 2C:35-10(a)(4), for which he received a twelve-month deferred disposition and a six-month driver's license suspension. The only issue J.V. raises on this appeal concerns the denial of his Miranda1 motion. We affirm.

J.V., age seventeen, was driving a car in which his mother and a friend were passengers. According to Officer Brian Anthony, while on routine patrol at about 10:30 p.m., he stopped a black Nissan Altima because the car had a broken brake light and objects hanging from the rearview mirror and "obstructing the view." Anthony recognized J.V. and requested his credentials. As he was speaking with J.V., Anthony noticed the odor of raw marijuana coming from the car. He asked J.V. to step out of the car and told him he smelled marijuana. J.V. first denied that there was marijuana in the car, but after Anthony asked him a second time, J.V. "admitted that there was." Anthony asked J.V. to turn over the drugs, and J.V. walked to the car and "retrieved a blunt from between the driver's side seat and the center console." 2

Anthony asked J.V. if his mother knew he had the blunt in the car, because the smell was quite strong and he was "surprised that she did not know [it] was in there." J.V. said she did not know. On cross-examination, Anthony stated that he asked J.V. to step out of the car because he did not want to question him in front of the other passengers. He explained that he might need to question the passengers as well and he did not want to give them a chance to coordinate their stories with J.V.'s version of events. However, he stated that J.V.'s mother did not get out of the car and he did not prevent her from doing so.

Anthony testified that when he questioned J.V., two back-up officers had arrived on the scene. He was aware that J.V.'s mother was in the car and that she was "very upset." Anthony did not give J.V. Miranda warnings before asking him if there was marijuana in the car. He testified that J.V. was not under arrest when he was being questioned. During Anthony's testimony, the State played a video of the stop, taken from the dashboard camera in Anthony's patrol car.

J.V.'s mother testified that when the officer stopped the car, he said the car had a broken brake light, and rosary beads hanging from the rearview mirror, and that he smelled marijuana in the car. After J.V. stepped out of the car, he closed the door, and she did not hear Anthony questioning him. She testified that she was about to get out of the car as well, but one of the officers on the scene told her to stay in the car. She testified that she argued with the police that they needed her permission to speak to her son because he was a minor. She denied knowing that there was marijuana in the car.

J.V.'s description of the stop was similar to Anthony's version. He confirmed that after Anthony asked him two or three times, he admitted there was marijuana in the car. J.V. did not testify that he heard his mother say anything, but he observed that an officer standing near her side of the car was "not allowing her to get out." He testified that he did not believe he was free to leave after Anthony told him to get out of the car. He testified that he would have liked to have had his mother with him while he was being questioned, although he did not want her to know that there was marijuana in the car.

In an oral opinion issued on December 12, 2012, Judge Angela F. Borkowski reasoned that under State v. Hickman, 335 N.J. Super. 623, 630 (App. Div. 2000), and Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), routine traffic stops "do not constitute a seizure within the meaning of the Constitution," and "do not rise to the level of custodial interrogation and, thus, do not require that Miranda warnings be given." She further considered that "[d]uring traffic stops the police may ask questions that may elicit an incriminating response. Such questions posed to a driver during a traffic stop do not require Miranda warnings because a stop is not considered a custodial interrogation."

Judge Borkowski concluded that Anthony lawfully performed the equivalent of a Terry3 stop in temporarily detaining and questioning J.V. after smelling marijuana in the car. She found that the officer had the right to question J.V. during the stop, and that he did so in a relatively low-key, unintimidating way. She considered that, because this was not questioning to which Miranda applied, it was not necessary that J.V.'s mother be present during the questioning.

Judge Borkowski found that the questioning was not coercive and the juvenile was not under arrest when he was being questioned. She reasoned:

There is no case law that indicates that a parent must be present during a field inquiry or an investigative detention. If that were true then every time an officer stopped a juvenile on the street, it would require them to reach out to a parent and have them come to the scene, and that's not what . . . these safeguards were meant for.

The judge also found the questioning was relatively brief, and it was standard police practice to question suspects separately during a traffic stop. In other words, J.V. was not questioned separately from his mother in order to keep him away from a helpful parent, but because she was a passenger in the car and therefore was also a suspect or a witness.

In reviewing Judge Borkowski's decision, we defer to her factual findings so long as they are supported by sufficient credible evidence. State v. Elders, 192 N.J. 224, 243 (2007). However, we review her legal conclusions de novo. State v. Hinton, 216 N.J. 211, 228 (2013). Based on the record presented to us, we find no basis to disturb Judge Borkowski's thoughtful and well-reasoned decision.

As in the trial court, on this appeal J.V. argues that the circumstances in which Anthony questioned him were the equivalent of custodial interrogation. He contends that under the principles set forth in State of New Jersey in the Matter of O.F., 327 N.J. Super. 102 (App. Div. 1999), and State v. Presha, 163 N.J. 304 (2000), the police were obligated to administer Miranda warnings and permit his mother to be at his side during the questioning. We disagree. Those cases are not on point, because they deal with custodial interrogation of juveniles.

It is well established that brief roadside questioning of a motorist during a traffic stop is not considered to be custodial interrogation and does not require administration of Miranda warnings. See Berkemer, supra, 468 U.S. at 439-40, 104 S. Ct. at 3150, 82 L. Ed. 2d at 334-35; State v. Reininger, 430 N.J. Super. 517, 537 (App. Div. 2013).

Roadside questioning of a motorist is not transformed into "custodial interrogation" that must be preceded by Miranda warnings simply because a police officer's questioning is accusatory in nature or designed to elicit incriminating evidence. Thus, in Berkemer, the Court held that a police officer was not required to give Miranda warnings to a suspected drunk driver before asking him whether "he had been using intoxicants[.]" [Berkemer, supra, 468 U.S.] at 423, 104 S. Ct. at 3141, 82 L. Ed. 2d at 324. Similarly, in State v. Toro, 229 N.J. Super. 215 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989), we held that police officers who observed a package at the foot of a driver stopped for a motor vehicle offense, which they suspected was a container for drugs, could ask what was in the package without giving Miranda warnings. Although the police officers in Toro ordered the driver out of the car and frisked him for weapons before questioning him, we concluded that the questioning was not "custodial. . . ."

[Hickman, supra, 335 N.J. Super. at 631.]

We agree with Judge Borkowski that J.V. was not subjected to custodial interrogation. He was subjected to brief questioning during a roadside stop. He was not in custody, Miranda warnings were not required, and the police did not have to allow his mother to be present during the questioning. The fact that his mother happened to be a passenger in the car does not change that legal conclusion. As the Supreme Court noted in Berkemer, unlike stationhouse interrogations, roadside stops take place in public, where a motorist has less concern that the police will abuse him if he does not satisfactorily answer their questions. Berkemer, supra, 468 U.S. at 438-39, 104 S. Ct. at 3149-50, 82 L. Ed. 2d at 333-34. And, roadside stops are typically brief, while police station interrogations are likely to be more lengthy. Id. at 438, 104 S. Ct. at 3149, 82 L. Ed. 2d at 333.

The fact that J.V.'s mother was sitting nearby, and could see his interaction with the police, may have lent J.V. an additional sense of safety during the roadside stop. But her fortuitous presence did not confer any greater rights on him. The police were not required to vary their standard procedure of questioning suspects separately during a roadside stop, simply because J.V.'s parent happened to be a passenger in the car.

Affirmed.

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

2 Anthony explained that a blunt was marijuana wrapped in a cigar wrapper.

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