STATE OF NEW JERSEY v. MICHAEL P. WHITTLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL P. WHITTLE,

Defendant-Appellant.

_______________________________________________

August 12, 2016

Argued February 22, 2016 Decided

Before Judges Messano, Simonelli and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Summons No. S-2010-645-0713.

James S. Friedman argued the cause for appellant.

Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, on the brief).

PER CURIAM

After administratively dismissing an earlier indictment, the State of New Jersey filed a complaint in the Montclair municipal court charging defendant, Michael P. Whittle, a former Montclair police officer, with two counts of the disorderly persons offense of obstructing the administration of law, N.J.S.A. 2C:29-1(a), and one count of the disorderly persons offense of tampering with public records, N.J.S.A. 2C:28-7(a)(2). At trial, the State dismissed one of the obstruction counts, thereby leaving two remaining charges, i.e., that defendant committed obstruction "by concealing marijuana in excess of the two [] bags reported," and filed a false police report stating that he "recovered two [] bags of marijuana where other officers . . . observed and heard amounts in excess of two [] bags."

A bench trial took place in the Law Division before Judge Michael A. Petrolle. The judge found defendant guilty of both charges and sentenced him to concurrent, six-month suspended sentences to the county jail. The judge filed a separate order permanently disqualifying defendant from "holding any public office, position or employment, pursuant to N.J.S.A. 2C:51-2(d)." This appeal followed.

In a single point, defendant argues

[Defendant's] Convictions Must be Reversed Because His Statements to Kagan and Flynn and the Resulting Report Implicated Garrity1 Concerns, and the Failure to Provide Him With Appropriate Warnings Rendered His Statements and Report Inadmissible.

Having considered this argument in light of the record and applicable legal standards, we affirm.

I.

The testimony at trial revealed that at approximately 8:00 p.m. on November 10, 2009, Montclair police officer Robert Anderson was dispatched to a small apartment building with retail businesses on the first floor to assist defendant in moving those loitering outside the building. On arrival, Anderson saw defendant standing "half in and half out of the doorway," speaking to an individual known in the area for loitering and drinking in public. Defendant asked Anderson to remain with this person while defendant searched the hallway of the building.

Anderson believed that defendant was conducting an investigation, and after entering and then exiting the building, defendant approached the detained person, patted him down and placed him in the back of Anderson's patrol car. As the officers walked back toward the entrance to the building, defendant told Anderson that he found marijuana in the hallway and displayed a plastic bag containing other smaller bags of suspected marijuana in his right front pants pocket. Anderson could not testify as to how many bags were in defendant's pocket. Officer Erica Peterson arrived in response to defendant's call for back up.

Sergeant Thomas D. Flynn, the "road supervisor" that evening, arrived at the scene shortly thereafter. Anderson testified that, among other things, Flynn asked defendant if he had found any controlled dangerous substances (CDS), and defendant responded in the negative. At that point, the detained individual was told that he was free to leave. Later, after leaving the scene, Anderson met with Flynn and told him that defendant had actually recovered suspected marijuana.

When Peterson arrived at the scene, she saw defendant and Anderson standing outside the building and a man seated in the back of Anderson's patrol car. Defendant immediately approached Peterson and told her that he had found ten bags of marijuana. Peterson saw defendant "pull[] out a large Ziploc baggie from his pocket, and . . . saw some smaller baggies inside" that "appeared to contain marijuana." Defendant was unsure whether to charge the detained man because the marijuana was found in a vest worn by someone else, which defendant showed Peterson in the hallway of the apartment building.

Peterson suggested that defendant contact Sergeant William Kagan, a narcotics supervisor, to see if the detainee was under active investigation by his unit. Peterson testified that defendant had a phone conversation with someone, but she did not know who it was. Peterson told Flynn that defendant found marijuana but was unsure whether to charge the man.

Flynn then approached defendant and asked "what do you have[?]" Defendant explained that while moving a group "that [was] loitering[,]" he discovered several bottles of alcohol in the hallway of the building. Flynn explicitly asked defendant twice if "any CDS was involved," to which defendant replied "no" both times. Out of earshot of Flynn, Peterson told defendant that he should "just tell the truth." Defendant replied that he was "going to go meet up with [Flynn]." At trial, Peterson identified what appeared to be the large zip-top bag that defendant showed her at the scene.

Kagan testified that he received a phone call from defendant who said that "he had [found] some weed . . . in the jacket, and . . . wanted to know could he charge the people that were on the scene." Defendant told Kagan that he did not know who the jacket belonged to. As a result, Kagan told defendant "I don't think you can charge anybody." Defendant advised Kagan that he also found a cell phone in the jacket. Kagan directed defendant to "take the phone, take the jacket, take [the] weed, write a report, log everything [into] evidence, [and] forward it to my office. . . . [He] also told [defendant], whatever you end up doing, go to your road supervisor, tell him what you have. [Defendant] said okay." Defendant called Kagan later that evening and said that he had met with Flynn and told him "there w[ere] no drugs." Kagan told defendant that he had to "straighten this out, go fix this, go tell him the truth[.]" Shortly thereafter, Kagan told Flynn about the conversation he had with defendant.

Flynn testified that when he arrived at the scene, Peterson told him that defendant had found ten bags of marijuana. Defendant denied this when asked. About twenty minutes after leaving the scene, in response to a call from defendant, Flynn met defendant in a parking lot at the Walnut Street train station. Defendant told Flynn, "I lied to you back there," and proceeded to give a detailed explanation of what actually happened at the scene. Flynn directed defendant to write a report of the incident and asked where the marijuana was. Defendant revealed a small bag in his shirt pocket.

Flynn telephoned Kagan, who acknowledged having an earlier phone conversation with defendant but said that defendant did not disclose the amount of narcotics he had recovered from the scene. Flynn met with Anderson and Peterson and asked them about the quantity of narcotics defendant had recovered. Defendant called and told Flynn that he had "completed the incident report" as directed, and Flynn instructed Anderson and Peterson to write administrative memos describing what they observed on the night in question.

Captain Scott Roberson was in charge of the department's Internal Affairs Unit at the time of the investigation. Roberson was familiar with Garrity's dictates and would contact the Essex County Prosecutor's Office (ECPO) before giving any officer the required warnings. In this case, Roberson first provided defendant with notification that he was under investigation on November 24, 2009, following conversations with the ECPO.

Defendant testified that he responded to the building on the night in question because of complaints of loitering, and upon arrival he saw several individuals he knew based upon prior calls. When he entered the building, defendant saw alcohol containers and other debris on the floor, as well as a jacket, which he picked up. A "sandwich baggie filled with . . . possible marijuana" fell out. Defendant put the baggie in his pants pocket and briefed Anderson and Peterson about the discovery. Defendant could not remember whether he told Peterson that he had found "ten" bags of marijuana.

Defendant contacted Kagan via cell phone to explain the circumstances and asked if he had probable cause to arrest the person he had detained. Kagan advised defendant to check the cellphone he had found in the jacket for possible information that could be used in the investigation.2 When defendant called Kagan again from his police vehicle, Kagan told him that he had spoken to Flynn who seemed extremely upset. Kagan told defendant that he "better speak with . . . Flynn, because he's concerned" about how defendant "cleared the scene, and he believe[d] there's CDS at the scene." Defendant immediately contacted Flynn, and the two met in a parking lot at the Walnut Street station.

Defendant told Flynn that he "found some CDS on the staircase," and he was "going to headquarters to log it in evidence." According to defendant, Flynn directed him to change the "disposition report," and defendant returned to headquarters and prepared an incident report as directed by Flynn that was admitted in evidence. The report stated that defendant recovered "two bags of marijuana," which defendant logged into evidence. Defendant denied that he ever seized more than two bags of marijuana.

Defendant spoke with Flynn the following day, November 11, 2009. Flynn told defendant to send him an email about the events that took place the night before and to list specific "details" of the incident. In the email, which is in the record, defendant stated that he found "a large bag of marijuana" in a jacket in the hallway of the building, and "a further inspection of the marijuana revealed it to be only two bags with empty zip tops and candy wrappers in the packaging." Defendant stated that, "When I was asked about the incident I should have told you about the two bags. I did not."3

Before the trial concluded, defendant moved to suppress certain oral and written statements claiming they were compelled without being given the requisite Garrity warnings beforehand, and in violation of N.J.S.A. 40A:14-181, which requires all law enforcement agencies to adopt the Attorney General's guidelines implementing Garrity.4 Defendant conceded that his statements to Flynn at the scene were admissible.5 The State conceded that defendant's conversation with Flynn on November 11, 2009, and the email generated thereafter, were inadmissible. The email was never introduced in evidence.

As a result, Judge Petrolle was required to consider whether defendant's two phone conversations with Kagan, his conversation with Flynn at the Walnut Street station and the incident report prepared thereafter should be suppressed. The judge concluded the conversations with Kagan and Flynn were admissible. However, the judge also concluded that Flynn directed defendant to file the incident report, it was compelled without Garrity warnings and therefore "inadmissible for purposes of proving" defendant's guilt "at the scene." Judge Petrolle also concluded that defendant was "not immune for filing a false report." In other words, "[t]he report cannot be used to prove that the events at the scene constitute some criminal activity . . . , but it can be used if indeed it is false to demonstrate that [defendant] made a false report."

After considering the balance of the evidence and summations of counsel, the judge found defendant guilty of the two offenses referred to above.

II.

In conducting our review, we acknowledge that "[a]ppellate courts reviewing a grant or denial of a motion to suppress must defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262 (2015) (citing State v. Gamble, 218 N.J. 412, 424 (2014); State v. Elders, 192 N.J. 224, 243 (2007)). "We defer to those findings of fact because they 'are substantially influenced by [an] 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 State v. Johnson, 42 N.J. 146, 161 (1964)). "An appellate court should disregard those findings only when a trial court's findings of fact are clearly mistaken." Ibid. (citing Johnson, supra, 42 N.J. at 162). "A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to special deference." Id. at 263 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)). "A trial court's legal conclusions are reviewed de novo." Ibid. (citing Gandhi, supra, 201 N.J. at 176).

A.

"[T]he protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and . . . it extends to all, whether they are policemen or other members of our body politic." Garrity, supra, 385 U.S.at 500, 87 S. Ct.at 620, 17 L. Ed. 2d at 567. However, "[t]he public employee's constitutional right not to incriminate himself . . . inevitably collides with the need of the public employer, in the public interest and as a matter of the public trust, to require him to account for his conduct in public office." Banca v. Town of Phillipsburg, 181 N.J. Super.109, 113 (App. Div. 1981). We have reconciled these interests by holding, in accordance with Garrity, that

[l]aw enforcement officers may not attach a penalty to the exercise of that right by a public employee through the threat of dismissal. Thus where a police officer's answers to police questioning are coerced by the threat of removal from office, the answers are not admissible unless the officer waives his or her constitutional right to remain silent.

[State v. Lacaillade, 266 N.J. Super. 522, 528 (App. Div. 1993). See also N.J.S.A. 2A:81-17.2a2 (granting public employees use immunity for testimony compelled during certain proceedings).]

"The offer, therefore, of use immunity when the statement is solicited is constitutionally prerequisite to the imposition of the disciplinary sanction for failing to give it." Banca, supra, 181 N.J. Super. at 113. "[T]he choice [a public official] must make between loss of his employment and the giving of the statement, however much of a Hobson's choice it may be, does not offend his constitutional privilege." Ibid.

However, our Court has made clear that "Garrity forbad the use of the 'coerced' statement to prove a prior criminal offense[,]" but it did not immunize the commission of a subsequent crime. State v. Falco, 60 N.J. 570, 585 (1972) (emphasis added). Garrity does not apply when "the 'coerced' report is itself the criminal event." Ibid. The Fifth Amendment does not afford a defendant "the privilege affirmatively to commit a criminal act." Ibid.; see also State v. Mullen, 67 N.J. 134, 138 (1975) ("It is generally held that the immunity for compelled testimony . . . extends to past crimes only and does not protect against a prosecution for false testimony given when testifying under compulsion."); N.J.S.A. 2A:81-17.2a2 ("no such public employee shall be exempt from prosecution or punishment for perjury or false swearing").

B.

The police officers in Garrity were explicitly warned before questioning that their refusal to answer would result in removal from office. Garrity, supra, 385 U.S. at 494-95, 87 S. Ct. at 617-18, 17 L. Ed. 2d at 564. Despite the ubiquitous demand that police officers and other public officials be held accountable for their on-the-job actions, only one reported decision in New Jersey has considered what standard applies in evaluating whether a defendant's statement was impermissibly "coerced" in the absence of explicit threats of removal from office.

In Lacaillade, the defendant-police sergeant discharged his service revolver following a car chase and subsequent chase on foot. Lacaillade, supra, 266 N.J. Super. at 525. The defendant filed a report claiming that his gun accidently discharged after the driver of the other car struck him and knocked him to the ground. Ibid. The defendant repeated that story to a lieutenant who routinely conducted investigations whenever a police officer discharged his weapon. Ibid. The other driver, however, claimed the defendant discharged his gun during the foot chase, and a polygraph test indicated he was telling the truth. Id. at 525-26.

After some further investigation, the lieutenant decided to interview the defendant and confront him with the driver's story and the results of the polygraph test. Id. at 526. Shortly thereafter, as the defendant began his shift for the day, the lieutenant asked him to come to his office. Ibid. At no point during the interview did the lieutenant threaten the defendant with loss of employment, but rather he simply confronted the defendant with the driver's story and the result of the polygraph test. Ibid. The defendant admitted that the driver's story was true. Ibid. The trial court suppressed the defendant's statement, and we granted the State's motion for leave to appeal. Id. at 524-25.

After summarizing Garrity's holding, we explained that

[f]ear that loss of employment will result from the exercise of the constitutional right to remain silent must be subjectively real and objectively reasonable. These two prongs of the test are more fully described in United States v. Camacho, 739 F. Supp. 1504, 1515 (S. D. Fla. 1990)

First, the defendant must have subjectively believed that he was compelled to give a statement upon threat of loss of job. Second, this belief must have been objectively reasonable at the time the statement was made.

[Id. at 528 (emphasis added) (citing United States v. Friedrick, 842 F.2d 382, (D.C. Cir. 1988)).]

We concluded there was no evidence the defendant "subjectively believed" that he would be fired if he remained silent when questioned by the lieutenant. Ibid. We rejected defendant's argument that, because the lieutenant was of superior rank, the request to give a statement was an order, noting instead the "question remain[ed], what did defendant believe to be the consequence of disobeying the order?" Id. at 528-29.

We also determined there was no evidence that even if the defendant subjectively believed he could be terminated, that belief was objectively reasonable. Id. at 529. We noted that the police department's rules and regulations did not mandate dismissal for failing to obey an order. Ibid. Since those rules and regulations "d[id] not mandate job forfeiture as the price for exercising the constitutional right to remain silent[,] . . . Garrity d[id] not apply." Ibid. (citing United States v. Indorato, 628 F.2d 711, 715-16 (1st Cir.), cert. denied, 449 U.S. 1016, 101 S. Ct. 578, 66 L. Ed. 2d 476 (1980)).6

C.

In this case, defendant argues that Kagan directed him to admit to Flynn that he lied when he told Flynn earlier at the scene that no CDS was found. Defendant asserts that he "should have received Garrity warnings prior to making any statements to Flynn or writing any [r]eport."7

Judge Petrolle rejected this argument, noting that defendant initiated the second call to Kagan and admitted having lied without any inquiry from Kagan. The judge concluded that Kagan never conveyed any threat to defendant about the loss of his job, but "simply told [defendant] to straighten it out." Defendant himself initiated the call to Flynn for a subsequent meeting. Judge Petrolle found defendant never indicated that when he made the statements to Flynn, there was "any concern for his job or anything along those lines . . . any threat or any circumstances that leads to that conclusion reasonably."

Our review of the record confirms a lack of any evidence that, up until this point in the chain of events, defendant "subjectively believed that he was compelled to give a statement upon threat of loss of job." Camacho, supra, 739 F. Supp. at 1515. Defendant argues that since Kagan was a superior officer, his directive speak to Flynn had the force of an order. However, as we noted in Lacaillade, that only begs the question "what did defendant believe to be the consequence of disobeying the order?" Lacaillade, supra, 266 N.J. Super. at 528-29. There was no evidence defendant believed that if he refused to call Flynn he would be fired.

Nor could any subjective belief on defendant's part have been objectively reasonable, since defendant initiated all the conversations, and Kagan never created an impression that defendant's job was at risk. See Camacho, supra, 739 F. Supp. at 1515 ("A subjective belief that Garrity applies will not be considered objectively reasonable if the state has played no role in creating the impression that the refusal to give a statement will be met with termination of employment.").8

As to the incident report, defendant asserts that it should have been suppressed completely because the conversation with Flynn at the Walnut Street station violated Garrity. Therefore, Judge Petrolle erred by concluding the report was inadmissible to prove defendant's guilt on the obstruction charge but admissible to prove defendant filed a false report. Defendant cites no authority for this "fruit of the poisonous tree" argument that would otherwise contradict the Court's clear holding in Falco. However, we need not address its merits directly in light of our earlier conclusion that defendant's conversations with Kagan and Flynn were not "coerced" and were admissible.

Affirmed.

1 Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967).

2 The "cellphone" was in fact an iPod.

3 We need not detail other evidence adduced at trial because it is largely irrelevant to the single issue raised on appeal.

4 The New Jersey Attorney General's Guidelines on Internal Affairs Policy & Procedures (Revised July 2014), provides sample Garrity warnings for use by local police departments. Id. at Appendix J. Those warnings advise police officers that they are being investigated, they have been granted use immunity in any criminal proceeding for their answers, but that they may be disciplined if they refuse to answer, and any answer may be used in subsequent departmental disciplinary proceedings.

5 We deem any argument suggested in defendant's appellate brief regarding the admissibility of his statements to Flynn at the scene to have been waived. Moreover, any such argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).

6 Our decision in Lacaillade failed to address the continued split among federal circuit courts regarding the subjective prong of the test for determining whether a statement was "coerced" by threat of removal from office. In Indorato, the court rejected any subjective analysis, noting

In all of the cases flowing from Garrity, there are two common features: (1) the person being investigated is explicitly told that failure to waive his constitutional right against self-incrimination will result in his discharge from public employment (or a similarly severe sanction imposed in the case of private citizens); and (2) there is a statute or municipal ordinance mandating such procedure.

[Indorato, supra, 628 F.2d at 716; accord United State v. Corbin, 998 F.2d 1377, 1390 (7th Cir. 1993) ("for [Garrity] to apply, the threat of a penalty for remaining silent must have been explicit"), cert. denied, 510 U.S. 1139, 114 S. Ct. 1124, 127 L. Ed. 2d 432 (1994).]

Other circuits have followed the reasoning in Friedrick and Camacho. See, e.g., United States v. Vangates, 287 F.3d 1315, 1321 22 (11th Cir. 2002) ("In the absence of a direct threat, we determine whether the officer's statements were compelled by examining her belief and, more importantly, the objective circumstances surrounding it."); accord, McKinley v. City of Mansfield, 404 F.3d 418, 436 (6th Cir. 2005), cert. denied, 546 U.S. 1090, 126 S. Ct. 1026, 163 L. Ed. 2d 854 (2006); United States v. Trevino, 215 Fed. App'x 319, 321 (5th Cir.), cert. denied, 551 U.S. 1107, 127 S. Ct. 2920, 168 L. Ed. 2d 250 (2007).

Our Supreme Court has not expressly adopted the subjective-objective test we applied in Lacaillade, and we could find no other reported decision in New Jersey addressing the issue. However, in this case, both parties contend that Lacaillade states the appropriate standard. Because the issue is not directly before us, we choose not to consider whether the subjective-objective standard is appropriate or warranted.

7 Although defendant's point heading seems to argue his statements to Kagan should have been suppressed, and although that argument was advanced at trial, he has not substantively argued that point in his brief. We deem any issue regarding defendant's statements to Kagan to be waived and, further, any such claim lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).

8 Although we chose to substantively address defendant's arguments, his testimony regarding his conversations with Kagan and Flynn admitted many of the same facts contained in their testimony. See State v. Burkert, 444 N.J. Super. 591, 598 n.5 (App. Div. 2016) (where the panel refused to consider defendant's Garrity claims on this ground). Moreover, the essence of the obstruction charge was not whether defendant lied about finding marijuana, but rather whether he lied about the amount of marijuana he actually seized.