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October 17, 2014


Before Judges Lihotz, Maven and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-04-0655.

Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, ActingMonmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief).

Edward C. Bertucio, argued the cause for respondent (Hobbie, Corrigan & Bertucio, attorneys; Mr. Bertucio, of counsel and on the brief; Danielle M. Diodato, on the brief).

The opinion of the court was delivered by


By leave granted, the State appeals from two February 4, 2013 Law Division orders, which granted defendant Marc Orival's motions to suppress a statement defendant made to police and an out-of-court identification. We conclude the motion court correctly suppressed defendant's statement to police but erred in suppressing the out-of-court identification. We therefore affirm, in part, and reverse, in part, and remand for trial.


We derive the following facts from the motion record. At 6:00 p.m. on January 8, 2012, Patrolmen Thomas Blewitt and Matthew Kocen of the Neptune Township Police Department (NTPD) stopped a Ford Fusion automobile for failing to yield to traffic at the Asbury Park circle. Patrolman Blewitt asked the driver for his credentials and the driver produced documents indicating the Fusion was a rental vehicle. The driver failed to produce a driver's license but did provide a TD Bank card bearing the name "Marc C. Orival." Patrolman Blewitt then asked the driver to step out of the car. Instead, the driver took off at a high rate of speed; he managed to elude the officers before abandoning his vehicle, after traveling two-tenths of a mile. The officers searched the area for the driver, without success. Upon searching the abandoned vehicle, police recovered a photo driver's license for Marc C. Orival in the center console.

Several hours later, Patrolman Blewitt received a report from the Asbury Park Police Department that a woman had just reported her rental vehicle stolen. Patrolman Blewitt proceeded to Asbury Park where he spoke with M.O., who indicated she had earlier loaned her rented Fusion to a friend from high school named Marc, who then refused to return it. She was unsure of his last name but thought it started with "O." A while later, Patrolman Blewitt showed M.O. the photo on the license recovered from the Fusion, with the name covered up, and she immediately identified the person in the photo as the person who had borrowed her Fusion and then refused to return it.

On January 9, 2012, Patrolman Blewitt signed a warrant charging defendant with eluding. Later that same day, counsel for defendant contacted NTPD and arranged for the surrender and processing of his client with regard to the eluding charge. Accompanied by counsel, defendant arrived at the NTPD at approximately 7:00 p.m., and was arrested and processed. At that time, counsel for defendant invoked to the police his client's rights to silence and to counsel, which the police acknowledged both in their reports and in their testimony at the suppression hearing. Patrolman Blewitt served defendant with a copy of the warrant as well as a number of traffic summonses. Bail was set at $50,000, which defendant posted by 9:15 p.m., securing his release.

Four days later on January 13, 2012, through arrangement by his counsel, defendant arrived at the NTPD to retrieve his personal property, namely his license and TD Bank card. Detective Michael Dugan of the Identification Detective Bureau said he asked defendant, "why do we have your driver's license?" According to Detective Dugan, defendant responded: "[I] left it in a car when [I] was chased by the police."

On April 5, 2012, a Monmouth County Grand Jury returned an indictment charging defendant with second-degree eluding, N.J.S.A. 2C:29-2(b). Defendant moved to suppress his statement to Detective Dugan, as well as the photo showup the police completed using defendant's driver's license with the lessee of the vehicle, M.O.1 The motion judge suppressed the photo showup, citing non-compliance with State v. Henderson, 208 N.J. 208 (2011), and the Attorney General Guidelines. The judge also concluded no questioning of defendant should have occurred when he retrieved his personal property from the police station, finding that defendant's Sixth Amendment right to counsel had attached on January 9, 2012. This appeal followed.


Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, "'so long as [they] are supported by sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15). Additionally, we afford deference to a trial judge's findings that "are 'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original) (quoting Robinson, supra, 200 N.J. at 15). We do not, however, defer to a trial judge's legal conclusions, which we review de novo. Ibid. We also review de novo mixed questions of law and fact. In re Malone, 381 N.J. Super. 344, 349 (App. Div. 2005).

Applying that standard of review, we discern substantial credible evidence in the record to support the trial judge's findings of fact. The issue is whether those findings were sufficient to justify suppression of defendant's statement to police and the out-of-court identification. We conclude the findings supported suppression of defendant's statement but not the out-of-court identification.


The motion judge first concluded that presentation of defendant's driver's license to M.O. to determine whether she could make an identification "was too suggestive," because it was the equivalent of a "showup" which is always "inherently suggestive," and it was administered by Officer Blewitt rather that an officer uninvolved with the investigation. Nevertheless, the judge did not preclude the State from questioning M.O. at trial to see if she could make an in-court identification of defendant, since she was familiar with him from high school and had seen him occasionally since then. The court suppressed M.O.'s out-of-court identification, concluding "non-compliance with Henderson and the [Attorney General] Guidelines" "require[d] suppression."

Consistent with Henderson, a court should suppress identification evidence only if it finds "from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification[.]" Supra, 208 N.J. at 289. The Henderson Court cautioned that, though it had revised the framework for analyzing the reliability of out-of-court identification, it fully expected that, "in the vast majority of cases, identification evidence will likely be presented to the jury. The threshold for suppression remains high." Id. at 219, 303. The court in Henderson also pointed out that, contrary to the trial court's approach, the analysis it was endorsing "avoids bright-line rules that would lead to suppression of reliable evidence any time a law enforcement officer makes a mistake." Id. at 219, 303.

Under prior law, there was a two-step test for determining the admissibility of identification evidence; it required the court to decide whether the identification procedure in question was impermissibly suggestive and, if so, whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). To assess reliability, the court considered five factors: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated at the time of the confrontation; and, (5) the time between the crime and confrontation. Id. at 239-40. These reliability factors were then balanced against the "corrupting effect" of the suggestive identification. Henderson, supra, 208 N.J. at 238 (quoting Manson v. Braithwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).

In Henderson, the Court relied upon current social science research and studies to expand the number of factors informing the reliability of identification evidence and to provide trial courts guidance and explanation as to how to analyze those factors. Specifically, the court identified eight "system variables," defined as characteristics of the identification procedure over which law enforcement has control. Id. at 248-61. These variables are: 1) whether a "blind" or "double blind" administrator is used; (2) whether pre-identification instructions are given; (3) whether the lineup is constructed of a sufficient number of fillers that look like the suspect; (4) whether the witness is given feedback during or after the procedure; (5) whether the witness is exposed to multiple viewings of the suspect; (6) whether the lineup is presented sequentially versus simultaneously; (7) whether a composite is used; and, (8) whether the procedure is a "showup." Ibid.

The Court also identified ten "estimator variables," defined as factors beyond the control of law enforcement which relate to the incident, the witness or the perpetrator. Id. at 261. These variables are: (1) the stress level of the witness when making the identification; (2) whether a visible weapon was used during the crime; (3) the amount of time the witness viewed the suspect; (4) the lighting and the witness's distance from the perpetrator; (5) the witness's age; (6) whether the perpetrator wore a hat or disguise; (7) the amount of time that passed between the event and the identification; (8) whether the witness and perpetrator were different races; (9) whether the witness was exposed to co-witness feedback; and, (10) the speed with which the witness makes the identification. Id. at 261-72.

Henderson prescribed a four-step procedure for determining admissibility of identification evidence. Id. at 288-89. First, to obtain a hearing, defendant has the burden of producing some evidence of suggestiveness, tied to a system rather than estimator variable, that could lead to a mistaken identification. Ibid. Second, the State must offer proof the identification is reliable, "accounting for system and estimator variables[.]" Id. at 289. Third, the burden remains on the defendant "to prove a very substantial likelihood of irreparable misidentification." Ibid. And, fourth, if defendant sustains his burden, the identification evidence should be suppressed; if defendant does not sustain his burden, the evidence should be admitted with "appropriate, tailored jury instructions[.]" Ibid.

The motion judge did not follow the totality of the circumstances approach that Henderson requires when evaluating admissibility of identification evidence. The only suggestiveness the court identified was that the procedure was akin to a showup, which Henderson presumes will not be "performed blind or double-blind." Id. at 259. Although Henderson acknowledges their inherent suggestiveness, it did not prohibit showups or require suppression when they are used. Id. at 261. Moreover, Patrolman Blewitt followed Henderson's preferred procedure of instructing M.O. that the photograph she was about to view may or may not be the "Marc" who borrowed the Fusion. See id. at 261. A cursory review of the Henderson estimator variables reveals that most address identification of a perpetrator who is a stranger to the witness, based on the witness's observation of the perpetrator during the often-brief criminal event. Id. at 261-72. The majority of the estimator variables have little or no application when the witness knows the suspect from previous dealings and can identify the person based upon those prior contacts.

The record here contains compelling facts which defeat defendant's claim that the out-of-court showup of defendant's photo resulted in a very substantial likelihood of irreparable misidentification. Defendant was a friend of M.O.'s, a person she "knew f[or] years," "since middle school"; she knew his first name and last initial and had his cell phone number; she had loaned him her rental car the day before and saw him driving the car earlier that day. Under these circumstances, where M.O. knew defendant for many years, we conclude the identification procedure used did not result in a "very substantial likelihood of irreparable misidentification." Id. at 289. See, e.g.,State v. Herrera, 187 N.J. 493, 507, 509 (2006) (finding "significant, if not controlling" of admissibility of identification evidence derived from suggestive showup procedure, the fact the witness "had seen defendant on a daily basis in the month prior to the incident"). In fact, the motion judge implicitly found the identification reliable when he explained why M.O. would be permitted to identify defendant in court: because she "knew [defendant] from high school and had seen his occasionally since then."

By excluding the identification evidence merely because it resulted from a showup type procedure, the court failed to follow Henderson's rejection of "bright-line rules" that would result in suppression of reliable identification evidence. See Henderson, supra, 208 N.J. at 303. We conclude the court erred as a matter of law when it found the display of defendant's photo driver's license to M.O. resulted in a very substantial likelihood of irreparable misidentification. We therefore reverse the order excluding M.O.'s out-of-court identification of defendant.


The motion judge also determined that defendant's statement to Detective Dugan must be suppressed because the question posed to defendant violated his previously-invoked Sixth Amendment right to counsel. As the motion judge correctly noted

Under both federal and state jurisprudence, the Sixth Amendment right to counsel attaches at the "initiation of adversary judicial criminal proceedings whether by way of formal charges, preliminary hearing, indictment, information or arraignment." Kirby v. Illinois, 406 U.S. 682, 689 (1972); State v. Tucker, 137 N.J. 259, 290 (1994), cert. den[ied], 513 U.S. 1090, (1995). After the right to counsel has attached, interrogation by the police is considered a "critical stage" in the criminal proceedings to which the right to counsel applies. See Brewer v. Williams, 430[] U.S. 387, 401 (1977); Massiah v. United States, 377 U.S. 201, 206 (1964).

The judge appropriately cited and applied State v. Wessells, 209 N.J. 395 (2012), as controlling precedent on this motion

In [Wessells], the New Jersey Supreme Court held that the rule announced by the United States Supreme Court in Maryland v. Shatzer, 130 S. Ct. 1213 (2010), applies to all pending New Jersey cases that have not yet been decided. Under the rule announced in Maryland v. Shatzer, any statements made by a defendant less than fourteen (14) days after an invocation of the right to counsel are presumed involuntary and must be suppressed. Shatzer, supra, 130 S. Ct. at 1213. In Wessells, the defendant invoked his right to counsel on September 3, 2006. Wessells, supra, 209 N.J. at 413. The defendant subsequently made additional statements to the police on September 12, 2006. As only nine days had passed since his invocation of his right to counsel, the New Jersey Supreme Court held that his statements were presumed involuntary and had to be suppressed. Id. at 413.

Here, the judge concluded defendant invoked his right to counsel four days before he made the challenged statement to Detective Dugan

On January 9, 2012, Lt. Furman was contacted by the defendant's attorney to make arrangements to turn the defendant in. At approximately 7:00 p.m., the defendant responded to the Neptune Township Police Department with his attorney. The defendant was placed under arrest, and his attorney advised that his client did not wish to make any statements. The defendant had clearly invoked his right to counsel on January 9, 2012. Adversary judicial criminal proceedings had begun as of that date, as the complaint against the defendant had been signed and his bail had been set by a judge. See Kirby, supra, 406 U.S. at 689.

It is well established that "once a suspect in custody invokes his right to counsel, the interrogation 'must cease,' and 'the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.'" Wessells, supra, 209 N.J. at 402 (quoting Miranda v. Arizona, 384 U.S. 436, 474, 86 S. Ct. 1602, 1627-28, 16 L. Ed. 2d 694, 723 (1966)). "[A] suspect who has invoked his or her right to counsel 'is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.'" Id. at 403 (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981)).

Although the right to counsel is distinct from the right against self-incrimination, it is an ancillary right that "constitute[s] an indispensable counterweight to the inherently coercive nature of custodial interrogation[,]" and therefore "effectuates the privilege against self-incrimination." State v. Reed, 133 N.J. 237, 258, 262 (1993).

The State's burden to show that a defendant relinquished his or her right to counsel is a "heavy" one, such that "[w]aiver will not be implied from the fact that the defendant incriminated himself [or herself] after new Miranda warnings were given." State v. McCloskey, 90 N.J. 18, 28 (1982). Further, "[b]ecause courts assume that defendants seek the advantage of such basic protections, they 'indulge every reasonable presumption against waiver of [these] fundamental constitutional rights.'" Id. at 25 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938), overruled in part on other grounds by Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)). Without any evidence of waiver, it would have been error for the court to have admitted defendant's statement after he had invoked his right to counsel.

In Michigan v. Mosley, 423 U.S 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), the Supreme Court acknowledged that a defendant's invocation of the right to counsel gives him additional protection against self-incrimination. Thus, while upholding the subsequent questioning of a defendant who earlier had invoked his right to remain silent, the Court in Mosley also noted

But clearly the Court in Miranda . . . distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and directed that "the interrogation must cease until an attorney is present" . . . "[i]f the individual states that he wants an attorney."

[Supra, 423 U.S. at 104 n.10, 96 S. Ct. at 326 n.10, 46 L. Ed. 2d at 321 n.10 (quoting Miranda 384 U.S. at 474, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723).

"Because invoking the right to counsel triggers additional safeguards, the State could not obtain a waiver of the right to counsel simply by administering new Miranda warnings." McCloskey, supra, 90 N.J. at 27. Here, of course, no new Miranda warnings were administered before Detective Dugan questioned defendant as to why the police had his driver's license and bank card. Like in McCloskey, aside from the fact that defendant made an incriminating statement, "there is absolutely no evidence that he intended to waive his previously asserted right to counsel." Id. at 27 n.2.

We conclude the State did not meet its "heavy burden" of demonstrating defendant waived his Fifth Amendment rights after invoking his right to counsel. McCloskey, supra, 90 N.J. at 28. The request for the return of personal property did not constitute any expression of a waiver of defendant's previously asserted rights, nor can it reasonably be viewed as indicating a desire to open a dialogue with the police. See Edwards, supra, 451 U.S. at 486 n.9, 101 S. Ct. at 1885 n.9, 68 L. Ed. 2d at 387 n.9. Defendant made no other inquiry or overture that would demonstrate a desire to discuss the pending charge.2

Following careful review, we conclude the record contains sufficient credible evidence to support the trial court's finding that defendant invoked his right to counsel on January 9, 2012, following his arrest. Thereafter, defendant responded to a question posed by Detective Dugan on January 13, 2012. Because only four days had passed since the invocation of defendant's right to counsel, and the record lacks evidence defendant intended to waive his right to counsel, his response was correctly presumed involuntary and suppressed. Wessells, supra, 209 N.J. at 408, 413. We therefore affirm the order suppressing defendant's statements made on January 13, 2012 to Detective Dugan.

Affirmed, in part, and reversed, in part, and remanded for trial.

1 Defendant also moved to suppress the evidence recovered from the Ford Fusion, after it was abandoned, which the court denied.

2 We further note that Detective Dugan acknowledged at the suppression hearing that had he not asked defendant why the police department was in possession of defendant's license, he could have reviewed the relevant documents and reports in the department's file and discovered why the department possessed defendant's driver's license. Such a review would have further disclosed that defendant had been formally charged four days before, had surrendered himself and was placed under arrest, had posted bail, and had gone through his first appearance represented by counsel.