STATE OF NEW JERSEY v. ROBERT L. HAYES, JR
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5586-13T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT L. HAYES, JR.,
Defendant-Appellant.
______________________________________
Submitted February 7, 2017 – Decided March 5, 2018
Before Judges Ostrer and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
13-06-0880.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lon Taylor, Assistant Deputy
Public Defender, of counsel and on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Steven A. Yomtov,
Deputy Attorney General, of counsel and on the
brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Defendant Robert L. Hayes, Jr. pled guilty during trial to
first-degree murder, N.J.S.A. 2A:11-3(a)(1)-(2), second-degree
burglary,
N.J.S.A. 2C:18-2, second-degree aggravated arson,
N.J.S.A. 2C:17-1(a), and second-degree desecrating human remains,
N.J.S.A. 2C:22-1(a)(1)-(2). He was sentenced to thirty years in
prison with a thirty-year period of parole ineligibility. Pursuant
to his conditional plea, he appeals the denial of his motion to
suppress physical evidence collected, and statements he made while
in jail, while he was in jail. We affirm his April 23, 2014
judgment of conviction.
I.
Defendant appeals, arguing:
POINT I – THE WARRANTLESS SEIZURE OF HAYES'
CLOTHES AND FINGERNAIL CLIPPINGS AS WELL AS
DNA OBTAINED FROM THE CLOTHING, WHILE HE WAS
CONFINED AT JAIL, WAS IMPROPER SINCE THERE WAS
NO EXIGENCY TO SEIZE THAT MATERIAL.
POINT II – HAYES' THIRD STATEMENT MUST BE
SUPPRESSED SINCE POLICE INITIATED THE
INTERVIEW IN VIOLATION OF AN EARLIER AND
UNEQUIVOCAL RIGHT TO COUNSEL, NOTWITHSTANDING
RENEWED MIRANDA WARNINGS. U.S. CONST. AMEND.
V and XIV; N.J. CONST. (1947) Art. I, pars.
1, 9, 10.
We must hew to our standard of review. "Appellate review of
a motion judge's factual findings in a suppression hearing is
highly deferential." State v. Gonzales,
227 N.J. 77, 101 (2016).
"Those findings warrant particular deference when they '"are
2 A-5586-13T2
substantially influenced by [the trial court's] opportunity to
hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy."'" State v. Rockford,
213 N.J. 424, 440 (2013) (citations omitted). "'[A]n appellate court
reviewing a motion to suppress must uphold the factual findings
underlying the trial court's decision so long as those findings
are supported by sufficient credible evidence in the record.'"
Ibid. (citation omitted). "Thus, appellate courts should reverse
only when the trial court's determination 'is so clearly mistaken
"that the interests of justice demand intervention and
correction."'" State v. Gamble,
218 N.J. 412, 425 (2014)
(citations omitted). However, "a trial court's legal conclusions
are reviewed de novo." Ibid.
II.
We first address defendant's motion to suppress physical
evidence. On appeal, he challenges the seizure of the sweatpants
and underwear he was wearing on arrest, and his fingernail
clippings. We derive these facts from the transcripts of the
three-day suppression hearing and the factual findings of the
motion court.
The motion court found Sergeant Paul Miller testified
credibly to the following.
3 A-5586-13T2
At about 7:15 a.m. on April 8, 2010, the Old Bridge Police
Department (OBPD) received a 9-1-1 call from the victim's daughter
reporting that the fifty-two-year-old victim, Petra Rohrbaugh had
been killed in her home. The OBPD contacted Sergeant Miller of
the homicide unit of the Middlesex County Prosecutor's Office
(MCPD). Miller and other members of the MCPD responded to the
victim's home. Miller found the victim's rear door had been
damaged, indicating entry had been forced. Inside, furniture had
been knocked over. He entered the master bedroom, and found the
victim's body naked from the waist down, with her knees on the
floor and her torso face-down on the bed. Her torso and the bed
had been set on fire and were badly burnt. The top half of
victim's body appeared to be melted into the bed.
Sergeant Miller saw victim's wrists were tied with cloth,
suggesting her wrists had been tied together. There was a cloth
gag tied around her head and mouth. It was later discovered her
cause of death was asphyxia due to strangulation and smothering.
It appeared she had been sexually assaulted.
Sergeant Miller interviewed the victim's daughter, who had
last seen the victim on the evening of April 6, had been unable
to reach her on April 7, and had discovered the body on April 8,
and who told officers that she felt an individual named "Rob" was
responsible. She said that "Rob" was squatting in a home next
4 A-5586-13T2
door to victim's home, that the victim let defendant do some work
for her, and that "Rob" had "push[ed] himself too much on her,
tried to force his way into her house, yelled and cursed at her,
and spit on her car, and that the victim was afraid of defendant.
Miller confirmed "Rob" was in fact defendant after speaking with
the owners of the house next door. With the owner's consent,
Miller searched that house, and found defendant's belongings, as
well as a cinder block placed next to the victim's fence which
could aid climbing it. A neighbor related how the victim was
afraid of defendant, who had made sexual comments to her and tried
to get in her house. The neighbor said he had seen defendant near
the victim's house on April 7 between 9:00 and 9:30 p.m.
Sergeant Miller reviewed defendant's criminal history. He
learned defendant had convictions for aggravated arson, by setting
a girlfriend's bed on fire, aggravated assault against her, and
criminal mischief. He also learned there were outstanding arrest
warrants for defendant.
Officers were able to track defendant to his friend's house
in Cliffwood. With the friend's consent, they looked through the
house and found defendant hiding in a closet. The officers asked
defendant if he was Robert Hayes and he denied it. Only after
being showed a picture of himself with his name on it did defendant
reveal his identity. At 6:00 p.m., the officers arrested
5 A-5586-13T2
defendant, who had outstanding warrants, and brought him to the
OBPD for questioning.
After defendant received and waived his rights under Miranda
v. Arizona,
384 U.S. 436 (1966), at 6:40 p.m. defendant told
Sergeant Miller he knew the victim, he did some work for her, and
sometimes they read the Bible together. He denied being
responsible for her death, denied having a sexual relationship
with her, and denied being anywhere near her home in the last four
days. He said that during the last week he had been staying at
his friend's house in Cliffwood. Defendant said he had been with
his girlfriend there. Defendant asked to speak to an attorney,
and Miller terminated the interview. At about 8:00 p.m., defendant
was charged with hindering his own apprehension, and obstruction
of justice.
During defendant's interview, Sergeant Miller noticed there
were fresh scratch marks on defendant's wrists that resembled
defensive wounds. Moreover, Miller saw defendant and his clothes
were filthy, and that defendant's filthy sweatpants bore "stains
that could have been consistent with blood stains."
At 9:00 p.m., Sergeant Miller interviewed defendant's
girlfriend. She said defendant told her on April 6 that he was
6 A-5586-13T2
"helping an old lady move" to Maryland on April 7.1 Later that
night, defendant told his girlfriend that he was already on his
way to Maryland but defendant's girlfriend realized he was lying
when she saw him on April 7, and he admitted he was in Old Bridge
the entire time. She believed defendant did not sleep at the
Cliffwood house the night of April 6 or 7. When she awoke the
morning of April 8, defendant told her he could not go back to Old
Bridge, but would not tell her why. She said that for the last
three days defendant had been wearing the same clothes including
the same sweatpants.
Sergeant Miller also interviewed defendant's friend at 9:50
p.m. The friend reported defendant had left the Cliffwood house
at about 8:00 p.m. on April 7. Miller then interviewed the
friend's girlfriend, who confirmed that defendant had not slept
at the Cliffwood house on the night of April 7, but had unusually
appeared there at about 8:30 a.m. on April 8. Both the friend and
his girlfriend said defendant had been talking before he left
their house on the night of April 6 about moving the lady next
door, and acted oddly when informed of her murder.
The interview of defendant's friend's girlfriend ended at
about 11 p.m. on April 8. At that time, Sergeant Miller went to
1
The victim was from Maryland and kept furniture in a storage
unit there.
7 A-5586-13T2
defendant's cell and obtained the clothes defendant was wearing,
including his sweatpants and underwear. Miller believed that
defendant had been wearing those clothes at the time of the murder,
and that fluids or hairs from the victim might be on the clothes.
Also at around 11 p.m., Sergeant Miller began cutting
fingernail clippings from defendant. Defendant assisted by biting
off the tips of his fingernails and spitting them into the
envelope. Miller sought the clippings because in a violent sexual
assault the victim's DNA might be under defendant's fingernails.
A.
We first address the warrantless seizures of defendant's
fingernail clippings and clothing. Both the United States Supreme
Court and the New Jersey Supreme Court protect against
"unreasonable searches and seizures" and generally require a
warrant issued on "probable cause." U.S. Const. amend. IV; N.J.
Const. art. I, ¶ 7. "Warrantless searches are presumptively
unreasonable and thus are prohibited unless they fall within a
recognized exception to the warrant requirement." State v. Pena-
Flores,
198 N.J. 6, 18 (2009), overruled on other grounds, State
v. Witt,
223 N.J. 409, 450 (2015). One is "the search incident
to a lawful arrest exception articulated in Chimel v. California,
395 U.S. 752 (1969)." State v. Dangerfield,
171 N.J. 446, 455-56
(2002).
8 A-5586-13T2
"Under the search incident to arrest exception, the legal
seizure of the arrestee automatically justifies the warrantless
search of his person and the area within his immediate grasp."
Pena-Flores,
198 N.J. at 19 (citing Chimel,
395 U.S. at 762-63).
"So long as there is probable cause to arrest, the ensuing search
is valid even if there is no particular reason to believe that it
will reveal evidence, contraband, or weapons. The justification
for the search of an arrestee is to preclude him from accessing a
weapon or destroying evidence." Ibid. (citing, e.g., Chimel,
395 U.S. at 762-63).
Although the arrest and search are usually contemporaneous,
see, e.g., State v. O'Neal,
190 N.J. 601, 634 (2007), "a search
incident to an arrest may be valid under some circumstances even
though it is not conducted contemporaneously with the arrest."
State v. Oyenusi,
387 N.J. Super. 146, 156 (App. Div. 2006) (citing
United States v. Edwards,
415 U.S. 800 (1974)). "[O]nce an officer
lawfully arrests a suspect, he has the right and duty to search
him for weapons and contraband before placing him in a patrol
car," and "[i]t also follows that the police have the authority
to [perform such a search] at headquarters." State v. Gibson,
218 N.J. 277, 299 (2014); accord, e.g., State v. Paturzzio,
292 N.J.
Super. 542, 550 (App. Div. 1996); State v. Johnson,
274 N.J. Super.
137, 155 (App. Div. 1994).
9 A-5586-13T2
"It is also plain that searches and seizures that could be
made on the spot at the time of arrest may legally be conducted
later when the accused arrives at the place of detention."
Edwards,
415 U.S. at 803; accord State v. Malik,
221 N.J. Super.
114, 121 (App. Div. 1987). The United States Supreme Court in
Edwards, upheld the warrantless seizure of a defendant's clothes
in jail as a search incident to a lawful arrest. Edwards was
arrested at 11:00 p.m. for attempting to break into a post office.
Approximately ten hours later, the police took "the clothing which
he had been wearing at the time and since his arrest," and
determined his clothing bore paint chips from the post office's
window. Id. at 801-02.
The United States Supreme Court in Edwards held a search
conducted nearly half-a-day after the initial arrest was a valid
search warrant:
[O]nce the accused is lawfully arrested and
is in custody, the effects in his possession
at the place of detention that were subject
to search at the time and place of his arrest
may lawfully be searched and seized without a
warrant even though a substantial period of
time has elapsed between the arrest and
subsequent administrative processing, on the
one hand, and the taking of the property for
use as evidence, on the other.
[Id. at 807.]
10 A-5586-13T2
The Court had no "doubt that clothing or other belongings may be
seized upon arrival of the accused at the place of detention and
later subjected to laboratory analysis or that the test results
are admissible at trial." Id. at 803-04. The Court ruled "[t]he
result is the same where the property is not physically taken from
the defendant until sometime after his incarceration." Id. at
807-08.
The principles of Edwards are equally applicable here. Malik,
221 N.J. Super. at 121. Our Supreme Court "has applied the same
test to determine the validity of searches incident to arrest [of
persons] under the New Jersey Constitution as applies under the
Fourth Amendment." Oyenusi,
387 N.J. Super. at 153. Our Supreme
Court has "not afforded greater protection regarding the scope of
a search incident to a lawful arrest [for a crime] under our State
Constitution than that provided in Chimel's interpretation of the
Fourth Amendment." Dangerfield,
171 N.J. at 462.
Indeed, even before Edwards our Supreme Court reached a
similar result in State v. Mark,
46 N.J. 262 (1966). In Mark, a
state trooper arrested defendant, and almost two days later seized
his clothing from the jail because the trooper had noticed a
bloodstain. Id. at 266, 268, 270. Our Supreme Court found "[t]he
taking of the clothing and the examination of the trousers for
bloodstains were clearly proper police procedures and were neither
11 A-5586-13T2
unreasonable nor violative of any of the defendant's
constitutional rights." Id. at 277.2 The Court did not "find any
legal significance in" the time "between his arrest and the taking
of his clothing at the jail." Id. at 278. "[I]t would make no
sense to insist that a defendant's clothes be removed immediately
at the time of his arrest though facilities [for re-clothing him]
are not available, rather than after his delivery to jail where
facilities are available." Ibid. The Court held "the seizure of
the trousers at the jail [was] clearly supportable in law" despite
the absence of a warrant. Id. at 279.
Under Edwards and Marks, Sergeant Miller did not need a
warrant to seize defendant's clothes because the search and seizure
were incident to defendant's arrest. It is undisputed that
defendant's arrest was valid and supported by probable cause, as
set forth in the motion court's opinion. Since arrest, defendant
and his clothes were in continuous custody for five hours, a
shorter period than in Edwards or Marks. Moreover, defendant's
clothes were "immediately associated with the person," and thus
could be "searched even a substantial period of time after the
2
Our Supreme Court in Marks,
46 N.J. at 277-78, relied on Robinson
v. United States,
283 F.2d 508 (D.C. Cir. 1960), which was later
cited in Edwards,
415 U.S. at 803 & n.4.
12 A-5586-13T2
arrest." Oyenusi, 387 N.J. Super. at 156-57; see Riley v.
California, 573 U.S. __,
134 S. Ct. 2473, 2484 (2014).
Similarly, the police were justified in taking fingernail
clippings from defendant as part of the search incident to arrest.
In Cupp v. Murphy,
412 U.S. 291, 292 (1973), Murphy was suspected
of strangling his wife. When Murphy was at the police station,
officers scraped his fingernails and took samples from his
fingernails that proved incriminating. Ibid. The United States
Supreme Court held that "this search was constitutionally
permissible under the principles of Chimel," which "recogniz[ed]
an exception to the warrant requirement when a search is incident
to a valid arrest." Id. at 295. The Court found "[t]he rationale
of Chimel, in these circumstances, justified the police in
subjecting him to the very limited search necessary to preserve
the highly evanescent evidence they found under his fingernails."
Id. at 296. The Court concluded: "considering the existence of
probable cause [to arrest], the very limited intrusion undertaken
incident to the station house detention, and the ready
destructibility of the evidence, we cannot say that this search
violated the Fourth and Fourteenth Amendments." Ibid.; see
Birchfield v. North Dakota, 579 U.S. __,
136 S. Ct. 2160, 2177
(2016).
13 A-5586-13T2
In Murphy, the United States Supreme Court approved the
fingernail scraping even though the police did not arrest Murphy
until about one month later.
412 U.S. at 294. Here, where
defendant was validly arrested, "the taking of fingernail
scrapings from him were permissible as part of a search incident
to a lawful arrest." People v. Costello,
460 N.Y.S.2d 636, 637
(App. Div. 1983). Under Edwards, the police can take fingernail
samples incident to arrest even if a defendant has been in jail
for several hours. State v. Magnotti,
502 A.2d 404, 407 (Conn.
1985). "A warrantless seizure of . . . the fingernail clippings
. . . was reasonable under the facts of this case to protect
possible evidence connected with the foul deeds." Commonwealth
v. Cross,
496 A.2d 1144, 1150 (Pa. 1985). Therefore, under the
search-incident-to-arrest exception, no warrant was required to
take fingernail clippings.
Defendant attempts to distinguish Murphy by arguing he was
less likely to destroy evidence because he was in jail, while
Murphy was not. Defendant's argument stands Murphy on its head.
In Murphy, the Court emphasized that where, as here, a
defendant is arrested and taken into custody, "it is reasonable
for a police officer to expect the arrestee . . . to attempt to
destroy any incriminating evidence then in his possession."
412 U.S. at 295. However, the Court was concerned that "[w]here there
14 A-5586-13T2
is no formal arrest, as in the case before us, a person might well
be less hostile to the police and less likely to take conspicuous,
immediate steps to destroy incriminating evidence on his person."
Id. at 296. The Court had to examine the facts and found, "[t]hough
he did not have the full warning of official suspicion that a
formal arrest provides, Murphy was sufficiently apprised of his
suspected role in the crime to motivate him to attempt to destroy
what evidence he could without attracting further attention."
Ibid. Such an examination was unneeded here, because defendant
was formally arrested.3
In any event, here defendant had the full warning, both from
his formal arrest and from the police interrogation about whether
he committed the crimes against the victim, giving him a strong
motive to destroy such incriminating evidence. He had already
shown his willingness to destroy incriminating evidence more
clearly than Murphy, because he had set fire to the victim's body.
Defendant also had the opportunity to destroy the DNA evidence
while in jail. The motion court found defendant could "bite his
fingernails or wash his hands causing the [DNA] evidence to be
ingested, discarded, destroyed, or compromised." See Magnotti, 502
3
"[A]rresting officers need not determine that the defendant . . .
actually intend[s] to destroy evidence before conducting a search
incident to arrest." Oyenusi,
387 N.J. Super. at 156 (quoting
United States v. Nelson,
102 F.3d 1344, 1347 (4th Cir. 1996)).
15 A-5586-13T2 A.2d at 407; Cross, 496 A.2d at 1150. Moreover, Miller testified
defendant could flush his nail clippings down the toilet, and
"could take his underwear, tear it up, throw it in the toilet,
flush it down the toilet. He could urinate in his pants, in his
underwear which would contaminate the DNA. It wouldn't be hard
to destroy that [DNA] evidence." The motion court found the DNA
evidence "was readily compromised by urination, tearing and
discarding of the cloth, washing of the hands and clothes, or by
flushing down the toilet."
Finally, the DNA evidence could be lost even if defendant
washed his hands or urinated on his clothes without ill intent.
The State has an interest "not just in avoiding an arrestee’s
intentional destruction of evidence, but in 'evidence
preservation' or avoiding 'the loss of evidence' more generally."
Birchfield, 579 U.S. at __,
136 S. Ct. at 2182.
Defendant also tries to distinguish Murphy because "the
police noticed a dark spot on [Murphy's] finger" which the police
suspected "might be dried blood."
412 U.S. at 292. However, the
Murphy Court emphasized the police also knew "evidence of
strangulation is often found under the assailant's fingernails."
Ibid. Here, the police were aware the victim had been asphyxiated
as in a strangulation. Moreover, Sergeant Miller had noticed
defendant had fresh scratch marks on his wrists that resembled
16 A-5586-13T2
wounds inflicted by the victim in an attempt to defend herself,
as might occur during a strangulation. "The right to scrape the
fingernails of one arrested for a fresh murder by strangulation"
is "a commonplace incident of the arrest." Franklin v. State,
308 A.2d 752, 761 (Md. Ct. Spec. App. 1973). The motion court
correctly found this information gave probable cause to believe
defendant's fingernail clippings would produce evidence of crime.
"Probable cause merely requires 'a practical, common sense
determination whether, given all of the circumstances, "there is
a fair probability that contraband or evidence of a crime will be
found[.]"'" State v. Myers,
442 N.J. Super. 287, 301 (App. Div.
2015) (citations omitted).
Similarly, Sergeant Miller had probable cause to believe
defendant's filthy, apparently bloodstained clothing would bear
evidence of crime. As Miller testified:
[B]ased on our training and experience we
believe that the victim had been sexually
assaulted and violently murdered. And as a
result of that there could be biological
fluids, hairs, tissue from the victim that
could have been onto [defendant's] clothes,
blood. Again, any type of saliva, bodily
fluids, et cetera. We knew that could be on
[defendant's] clothes. . . . He was filthy.
So we had reason to believe whatever he was
wearing he was wearing at the time of the
murder.
17 A-5586-13T2
In addition, during the continued investigation between the
arrest and the search, defendant's girlfriend told Miller
defendant had been wearing the same clothes throughout the period
when the crime occurred. As in Edwards, "the police had probable
cause to believe that the articles of clothing he wore were
themselves material evidence of the crime[s]" they were
investigating.
415 U.S. at 805. Thus, "it was similarly
reasonable to take and examine them as the police did, particularly
in view of the existence of probable cause linking the clothes to
the crime." Id. at 806.
Additionally, the trial court properly found the five-hour
gap between defendant's arrest and the search was reasonable.
During that time, Sergeant Miller and other law enforcement
officers were continuing their investigation of the victim's rape
and murder, and interviewing defendant and the persons he claimed
"could support his alibi." Those interviews negated defendant's
claimed alibi. They also produced additional evidence that
defendant interacted with the victim in the period of her murder,
and that defendant behaved suspiciously after her death. This
evidence, coupled with the evidence obtained before defendant's
arrest and in defendant's interview gave police probable cause to
believe defendant committed the crimes against the victim. Thus,
the "reasonable delay in effectuating [the search incident] does
18 A-5586-13T2
not change the fact that [defendant] was no more imposed upon than
he could have been at the time and place of the arrest or
immediately upon arrival at the place of detention." Edwards,
415 U.S. at 805.
Defendant lastly argues that even if the police did not need
a warrant to seize defendant's clothing and nail clippings, the
police should have put them in storage and gotten a warrant to
test them for DNA. It does not appear defendant raised this
argument before the trial court, so we need not entertain it. See
Witt,
223 N.J. at 419. In any event, the cases discussed above
show that evidence seized under the search-incident-to-arrest
exception to the warrant requirement may be subjected to scientific
analysis without a warrant. See, e.g., Edwards,
415 U.S. at 805;
Murphy,
412 U.S. at 292; Marks,
46 N.J. at 277; Malik,
221 N.J.
Super. at 122. There is no reason to require warrants for
scientific analysis looking for the victim's DNA.
Defendant cites Riley, but its rationale has no application
to searches for a victim's DNA. Riley's rationale was that modern
smartphones contain "vast amounts of private personal information"
and thus "may reveal 'the privacies of life,' [so] the Court held
that law enforcement officers must get a warrant before they may
search the contents of a [defendant's] cell phone seized incident
to arrest." State v. Lunsford,
226 N.J. 129, 151 (2016) (quoting
19 A-5586-13T2
Riley, 573 U.S. at __,
134 S. Ct. at 2494-95, and refusing to
extend it to telephone records). The United States Supreme Court
has held that Riley does not require a warrant for a breath test
because it "is no more intrusive than" "scraping underneath a
suspect’s fingernails" under Cupp. Birchfield, 579 U.S. at __,
136 S. Ct. at 2176-78, 2182-84.
Therefore, we conclude defendant's clothes, his fingernail
clippings, and the resulting DNA evidence were legally obtained
under the search-incident-to-arrest exception to the warrant
requirement. The motion court properly denied the motion to
suppress.
B.
In addition, the motion court properly found that defendant's
clothing and fingernail clippings were also legally obtained under
the exigent-circumstances exception to the warrant requirement.
As the discussion above indicates, the seizure of defendant's
clothing and fingernail clippings were justified by exigent
circumstances.
At the very least, "exigent circumstances will be present
when inaction due to the time needed to obtain a warrant will
create a substantial likelihood . . . that evidence will be
destroyed or removed from the scene." State v. Johnson,
193 N.J.
528, 553 (2008).
20 A-5586-13T2
[S]ome factors to be considered in determining
whether law enforcement officials faced such
circumstances are the urgency of the
situation, the time it will take to secure a
warrant, the seriousness of the crime under
investigation, and the threat that evidence
will be destroyed or lost . . . unless
immediate action is taken.
[Id. at 552-53]
"[N]o one factor is dispositive and exigency must be assessed on
a case-by-case basis under a totality-of-the-circumstances
standard." State v. Adkins,
221 N.J. 300, 310 (2015).
Here, the crimes under investigation were very serious. Once
the officers had completed their interviews on the night of April
8, they had probable cause to believe defendant's clothing and
fingernails contained evidence of victim's rape and murder.
Moreover, "there was a reasonable belief that the evidence
was about to be lost or destroyed." State v. Walker,
213 N.J.
281, 296 (2013). There was a real danger that any evidence of the
victim's DNA on defendant's clothing, or under his fingernails,
would be destroyed or lost if not quickly secured.
The urgency of the situation was increased because Sergeant
Miller and the other investigating officers were occupied with
interviewing witnesses concerning defendant's claimed alibi
throughout the period between the arrest and the search, and sought
21 A-5586-13T2
to secure the DNA evidence as soon as those witnesses refuted his
alibi.
Finally, the evidence could have been destroyed in the time
it took to obtain a warrant. The interview process did not end
until 11 p.m. Preparing a warrant affidavit, going to a judge's
home, and returning with the warrant would have taken a substantial
time. The evidence could have been lost even during the "time-
consuming" process of securing a telephonic warrant. Witt,
223 N.J. at 415, 436. Sergeant Miller testified he believed the
exigencies necessitated seizing the evidence without a warrant.
Thus, the exigent-circumstances exception provided another
basis for the seizure of defendant's clothing and fingernail
clippings. We need not address the motion court's finding that
defendant's clothing was also properly seized under the
inevitable-discovery doctrine, or the State's arguments that the
inventory-search exception also applied to defendant's clothing,
and that he had no legitimate expectation of privacy in them.
III.
Defendant next argues the motion court erred when it denied
suppression of statements he made on April 10 and 14, 2010, after
he invoked his right to counsel on April 8. The motion court
found that defendant freely and voluntarily reinitiated
22 A-5586-13T2
conversation with law enforcement, and therefore his statements
should not be suppressed. We agree.
Defendant does not appeal the motion court's denial of his
motion to suppress his April 8 statements, but the April 8
interview provides necessary background to his challenge to his
April 10 and 14 statements. On April 8, Sergeant Miller read
defendant his constitutional rights from a standard Miranda rights
card.4 After reading each line, Miller asked defendant if he
understood, and he said he did. Defendant then read the back side
of the card.5 He signed the waiver on the back side of the card,
acknowledging he was being advised of his rights and understood
them. Defendant said he was willing to speak to Miller, and he
gave a statement to the officers.
4
Sergeant Miller testified the Miranda card stated: "[B]efore we
ask you any questions you must understand your rights. You have
the right to remain silent." "Anything you say can and will be
used against you in a Court of law." "You have the right to talk
to a lawyer and have a lawyer present while you are being
questioned." "If you can not afford to hire a lawyer one will be
appointed to represent you before any questioning if you wish."
"You can decide at any time to exercise these rights and not to
answer any questions or make any statements."
5
Miller testified the back side of the card stated: "I have been
advised of my rights as found on the reverse side of this card and
I understand what my rights are. I will voluntarily speak with
you and answer questions."
23 A-5586-13T2
The motion court reviewed the video and found that defendant
was alert, aware, and responsive while he reviewed and signed the
Miranda card, and that "[a]t no time did defendant indicate that
he did not understand the line by line recitation." The court
found the officers "immediately stopped the interrogation" when
defendant requested a lawyer.
On April 10, the police obtained a court order to collect a
buccal DNA swab from defendant. Sergeant Miller went to the jail
and handed the court order to defendant. Defendant read the order
and then said: "good luck. My DNA will not be on her body."
Without any prompting, when defendant asked Miller "what happens
if you find my DNA?" Miller told defendant he could not answer
defendant's questions because he had asked for an attorney.
Defendant kept asking questions, including "how many years am I
looking at?" The officers did not answer defendant's questions
or ask him any questions.
The motion court found that on April 10 the officers "did not
instigate any conversation." Rather, defendant on his own
initiative "freely and voluntarily made statements and asked
questions to [the] officers" that "were not solicited by any words
or action by the officers." The court declined to suppress
defendant's comments.
24 A-5586-13T2
On April 14, the prosecutor's office told Sergeant Miller it
had received a letter from the jailed defendant addressed to the
assistant prosecutor handling defendant's case. In the letter,
defendant said, "I want to know did my DNA match the victim . . .
[bec]ause I really want to go home and live my life." Defendant
asked the prosecutor to "[p]lease, write me back soon." The motion
court found defendant initiated this contact and "freely and
willingly indicated a desire to engage in discussion."
Later, on April 14, complaints were issued charging defendant
with murder, arson, burglary, and sexual assault.6 Sergeant Miller
and two other detectives traveled to the jail conference room to
serve the complaint on defendant. Defendant reviewed the complaint
and again began asking the officers questions about the case.
Miller said he could not answer defendant's questions. Miller
told defendant if he wanted to speak with the officers, the
officers would need to read him his rights once more. Defendant
replied: "Alright, read me my rights." As before, Miller read the
same Miranda rights line by line, defendant acknowledged he
understood every line, signed the same waiver on the back of the
Miranda card acknowledging he understood his rights and would
6
These charges were filed after DNA testing confirmed victim's
blood was on defendant's underwear, and after the police had
gathered additional incriminating information from witnesses,
including that defendant had confessed to his girlfriend.
25 A-5586-13T2
voluntarily speak to the officers. Miller asked if defendant was
willing to speak to the officers, and he said he was.
Defendant then gave a lengthy interview. The motion court
found that "defendant voluntarily, knowingly, and intelligently
waived his Miranda rights," and that his "statements were freely
and voluntarily given." The court denied the motion to suppress
defendant's statements, but redacted unduly prejudicial material.
Defendant argues that his statements when his buccal swab was
collected on April 10, in his letter, and when he was served with
the complaint on April 14, should have been suppressed because
they came after his April 8 invocation of his right to counsel.
However, as the trial court found, defendant initiated those
communications. In Edwards v. Arizona,
451 U.S. 477, 484-85
(1981), the United States Supreme Court held that a suspect who
invokes the 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." Our
Supreme Court likewise holds that "once a request for counsel has
been made, an interrogation may not continue until either counsel
is made available or the suspect initiates further communication
sufficient to waive the right to counsel." State v. Alston,
204 N.J. 614, 620 (2011) (citing Edwards,
451 U.S. at 484-85). A
26 A-5586-13T2
suspect initiates such communication if he is "inviting discussion
of the crimes for which he was being held." State v. Chew,
150 N.J. 30, 64 (1997) (quoting State v. Fuller,
118 N.J. 75, 82
(1990)).
"If an accused does initiate a conversation after invoking
his rights, that conversation may be admissible if the initiation
constitutes a knowing, intelligent, and voluntary waiver of the
accused's rights." Id. at 61 (quoting Miranda,
384 U.S. at 444).
"The State bears a 'heavy burden' of demonstrating that the waiver
was knowing, intelligent, and voluntary." Ibid. "[T]he State
must demonstrate beyond a reasonable doubt that the accused made
a knowing, intelligent, and voluntary waiver." Id. at 65.
We agree with the motion court that defendant's statements
after April 8 did not violate the Edwards rule because he initiated
the communications about the crimes. In making that determination,
we consider whether defendant's statements were elicited by police
interrogation. "[T]he term 'interrogation' under Miranda refers
not only to express questioning, but also to any words or actions
on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect."
State v. Hubbard,
222 N.J. 249, 267 (2015) (quoting Rhode Island
v. Innis,
446 U.S. 291, 301 (1980)). "[T]he latter part of this
27 A-5586-13T2
definition focuses primarily upon the perceptions of the suspect,
rather than the intent of the police." Innis,
446 U.S. at 301;
accord State v. Yohnnson,
204 N.J. 43, 65 (2010) ("the officer's
state of mind is not the issue"); see, e.g., Arizona v. Mauro,
481 U.S. 520, 522, 528-29 (1987) (finding no interrogation even though
the officers were aware the defendant might incriminate himself
and tape-recorded the meeting).
Defendant's statements on April 10 were not elicited by police
interrogation merely because the officers came to take a buccal
swab from defendant. As "police words or actions 'normally
attendant to arrest and custody' are not included within the
definition of 'interrogation,'" courts have ruled "asking a
suspect to submit to a blood-alcohol test falls within this
exception to the definition of 'interrogation.'" State v. Stever,
107 N.J. 543, 553, 561 (1987) (quoting Innis,
446 U.S. at 301);
accord South Dakota v. Neville,
459 U.S. 553, 564 n.15 (1983) ("It
is similar to a police request to submit to fingerprinting or
photography."). Seeking a buccal swab falls into the same
exception. State v. Powell,
971 N.E.2d 865, 891 (Ohio 2012);
State v. Juntilla,
711 S.E.2d 562, 569 (W. Va. 2011). "When a
defendant initiates communications with law enforcement officers
'nothing in the Fifth and Fourteenth Amendments prohibits the
police from merely listening to his voluntary, volunteered
28 A-5586-13T2
statements and using them against him at the trial.'" State v.
Carroll,
242 N.J. Super. 549, 566 (App. Div. 1990) (quoting
Edwards,
451 U.S. at 485).
Similarly, by writing to the prosecutor asking about the DNA
results, defendant initiated communication about the crimes. See
State v. McKnight,
52 N.J. 35, 41-42 (1968) (finding the defendant
initiated the subsequent interrogation when he sent a note saying
he would like to see the prosecutor); see also State v. McCloskey,
90 N.J. 18, 29 (1982) (ruling McKnight comports with Edwards).
"As he initiated the conversation himself, he does not fit within
the Edwards rule," and his letter could be used against him. State
v. Perry,
124 N.J. 128, 152 (1991).
Defendant argues the police initiated the conversation with
him on April 14. He cites that, after he entered the jail interview
wearing handcuffs, Sergeant Miller asked him "[y]ou cool to take
those [handcuffs] off? Huh?," to which defendant replied "yea."
However, we have held an officer asking a suspect if his handcuffs
were uncomfortable are "words normally attendant to arrest and
custody," and are "'not "reasonably likely' to evoke an
incriminating response." State v. Lozada,
257 N.J. Super. 260,
268-69 (App. Div. 1992) (quoting Innis,
446 U.S. at 303).
Defendant stated then Sergeant Miller gave defendant the
complaints and said "Alright man read those." These too were
29 A-5586-13T2
"police words or actions 'normally attendant to arrest and custody'
[and thus] not included within the definition of 'interrogation.'"
See Stever,
107 N.J. at 553 (quoting Innis,
446 U.S. at 301). Our
court rules require the issuance of a criminal complaint "'to
inform a defendant of the charges he must defend against.'" State
v. Fisher,
180 N.J. 462, 468 (2004) (citation omitted); see R.
3:2-1(a). The complaint must be served on the defendant by an
officer. R. 3:3-3; see Pressler & Verniero, Current N.J. Court
Rules, history of R. 3:2-1, www.gannlaw.com (2018) ("pursuant to
amended R. 3:2-2 and 3:2-3, the summons and warrant, respectively,
will be on the same form as the complaint, and thus service of the
summons and execution of the warrant will necessarily include
service of the complaint").
"Service of an arrest warrant is a routine police procedure.
It does not require any response from a suspect; nor can it be
reasonably expected to elicit an incriminating response." Everett
v. State,
893 So. 2d 1278, 1286 (Fla. 2004); see United States v.
Blake,
571 F.3d 331, 340-41 (4th Cir. 2009). Similarly, telling
defendant to read the charges did not constitute interrogation.
State v. Conover,
537 A.2d 1167, 1169, 1171 (Md. 1988). Even
where officers read the charges to an accused or inform the accused
of the charges, that is not interrogation under Innis. State v.
30 A-5586-13T2
Mallozzi,
246 N.J. Super. 509, 516 (App. Div. 1991); see State v.
Wright,
444 N.J. Super. 347, 366 (App. Div. 2016).
Thus, "it is clear under both Miranda and Innis that
[defendant] was not interrogated." Mauro,
481 U.S. at 527. No
actions by the officers violated the Edwards rule's purpose "to
prevent police from badgering a defendant into waiving his
previously asserted Miranda rights." State v. Wessells,
209 N.J.
395, 403 (2012) (quoting Michigan v. Harvey,
494 U.S. 344, 350
(1990)). "There is no allegation that the police applied pressure
of any kind to override defendant's will." Fuller,
118 N.J. at
82.
By asking whether the complaints were based on statements,
defendant "invit[ed] discussion of the crimes for which he was
being held." Chew,
150 N.J. at 65 (quoting Fuller,
118 N.J. at
82). Thus, he "initiate[d] further communication sufficient to
waive the right to counsel." Alston,
204 N.J. at 620.
Even though officers are not required to give renewed Miranda
warnings when a defendant re-initiates communication, Sergeant
Miller followed the "prudent" course and re-administered the
Miranda warnings. Chew,
150 N.J. at 66. Defendant's responses
showed he understood and waived his Miranda rights. The motion
court properly found defendant knowingly, intelligently, and
31 A-5586-13T2
voluntarily waived his Miranda rights and gave his subsequent
statement freely and voluntarily.
Defendant's remaining arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(2).
Affirmed.
32 A-5586-13T2
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