STATE OF NEW JERSEY v. CARLO TACCETTA

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0499-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

CARLO TACCETTA,

Defendant-Appellant.
________________________

Argued September 21, 2020 – Decided October 25, 2021

Before Judges Messano, Suter and Smith.

On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 15-10-0150.

Marco A. Laracca argued the cause for appellant (Bio
& Laracca, PC, attorneys; Marco A. Laracca, of counsel
and on the briefs).

Daniel Finkelstein, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Daniel Finkelstein, of counsel and on
the brief).
The opinion of the court was delivered by

SMITH, J.A.D.

Defendant Carlo Taccetta was charged on October 23, 2015, with

possession with intent to distribute a controlled dangerous substance, possession

of a controlled dangerous substance, and conspiracy. He moved to suppress

evidence seized during his arrest, and the suppression hearing took place on

December 5, 2018. Detective Sergeant First Class Thomas Kelshaw testified at

the hearing.

At a location outside New Jersey, a confidential informant placed four

large garbage bags containing sixty-five pounds of marijuana into defendant’s

truck. Det. Kelshaw and his team maintained constant surveillance on defendant

during the exchange and followed him to a business parking lot in New Jersey.

Once defendant entered the parking lot, Det. Kelshaw's team conducted a motor

vehicle stop. Multiple officers were present at the stop, including officers from

the New Jersey State Police and the federal Drug Enforcement Agency High

Intensity Drug Trafficking Area (HIDTA) team. Det. Kelshaw testified

defendant was not free to leave the scene. The officers informed defendant why

2 A-0499-19
he was being stopped and asked him to exit the vehicle. Det. Kelshaw then

asked defendant for consent to search the truck.

Det. Kelshaw testified about his routine procedure for obtaining property

owners' signatures on a consent to search form. Kelshaw first read it to the

owners, then had them read it back to him. He informed them they could refuse

consent to search. Then, consenting owners were instructed to check a box on

the form giving consent if they wished to do so. Consenting property owners

could waive their presence at the search by checking another box. Finally, the

owners signed the form. The language on the form above the signature line read

as follows:

I further authorize the above member of the New Jersey
State Police to remove and search any letters,
documents, papers, materials, or other property, which
is considered pertinent to the investigation, provided
that I am subsequently given a receipt for anything
which is removed. I've knowingly and voluntarily
given my written consent to search described above.
I've been advised by Detective One Tom Kelshaw,
Badge Number 6231 and fully understand that I've the
right to refuse giving my consent to search and may
depart[,] no other reason exists for detai[n]ing me. I've
been further advised I may withdraw my consent any
time for any reason and I have the right to be present
during the search at a location consistent with the safety
of all persons present.

3 A-0499-19
Defendant asked Det. Kelshaw for permission to call his attorney before

consenting to any searches, and the detective assented. Defendant was

unsuccessful twice in reaching his lawyer by phone, and after defendant's

second failed attempt, Det. Kelshaw asked defendant a second time for consent

to search the vehicle. This time defendant consented, in writing, to three

distinct property searches: his vehicle, his office, and a rented garage space.

Kelshaw reviewed each consent form with defendant, who then gave his

written consent to search each property. The three searches were conducted

simultaneously, but defendant was only present for the truck search. The police

found the bags of marijuana in defendant's truck; however, the other searches

revealed no contraband.

Det. Kelshaw testified that if defendant had refused consent, he would

have requested a search warrant. Det. Kelshaw further testified that when

defendant sought permission to call his attorney, he did not seek a search

warrant. The detective posited two reasons. First, he was in the process of

asking defendant for consent. Second, he did not ask defendant "any

accusatory" questions or "interrog[ate] him regarding the marijuana . . . in the

truck." On cross-examination, the detective conceded that officers present could

have detained defendant, impounded the truck, and applied for a warrant.

4 A-0499-19
The motion judge found Det. Kelshaw credible and determined there was

a reasonable and articulable basis for the stop. The judge also found defendant

was not in custody, and concluded that since there was no custodial

interrogation, Miranda warnings were not triggered before the police asked for

consent to search. 1 The judge found defendant knowingly and voluntarily

signed the consent to search forms. Based on these findings, the judge denied

defendant's suppression motion. Defendant pled guilty to second-degree

possession with intent to distribute. He was sentenced to a five-year term of

incarceration.

Defendant argues the following on appeal:

THE WARRANTLESS SEARCH OF MR.
TACCETTA'S VEHICLE VIOLATED HIS RIGHT TO
BE FREE FROM UNLAWFUL SEARCH AND
SEIZURE GUARANTEED BY THE NEW JERSEY
AND UNITED STATES CONSTITUTIONS

a. The trial court erred in denying the
motion to suppress because Mr. Taccetta
invoking his right to counsel after officers
requested consent was in and of itself a
"no" as to consent, so any evidence seized
as a result of his consent is subject to the
exclusionary rule.

b. The trial court erred in denying the
motion to suppress because Mr. Taccetta’s

1
Miranda v. Arizona, 384 U.S. 436 (1966).

5 A-0499-19
consent was a result of coercion, so any
evidence seized as a result of his consent
is subject to the exclusionary rule.

II.

"Generally, on appellate review, a trial court's factual findings in support of

granting or denying a motion to suppress must be upheld when 'those findings

are supported by sufficient credible evidence in the record.'" State v. A.M., 237 N.J. 384, 395 (2019) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). An

appellate court should not disturb a trial court's findings unless "they are so

clearly mistaken 'that the interests of justice demand intervention and

correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson,

42 N.J. 146, 162 (1964)). "Those findings warrant particular deference when

they 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." State v. Rockford, 213 N.J. 424, 440 (2013) (alteration in

original) (citations omitted). "An appellate court owes no deference, however,

to 'conclusions of law made by lower courts in suppression decisions'" and

reviews such decisions de novo. A.M., 237 N.J. at 396 (quoting State v. Boone,

232 N.J. 417, 426 (2017)).

6 A-0499-19
A. Custody

We first review fundamental principles regarding what constitutes custody

for purposes of Miranda. The determination of whether a person was in custody

is an objective one, independent of "'the subjective views harbored by either the

interrogating officers or the person being questioned.'" State v. O'Neal, 190 N.J.
601, 615 (2007) (quoting Stansbury v. California, 511 U.S. 318, 323 (1994)).

Judicial assessment of whether a suspect has been placed in custody is a fact-

sensitive question. The issue must be considered using "a case-by-case

approach," in which the totality of the circumstances is examined. State v. Stott,

171 N.J. 343, 364-65 (2002) (citation omitted). Custody does "not necessitate a

formal arrest, nor does it require physical restraint in a police station, nor the

application of handcuffs, and may occur in a suspect's home or a public place

other than a police station." Id. at 175 (citations omitted). "The critical

determinant of custody is whether there has been a significant deprivation of the

suspect's freedom of action based on the objective circumstances, including the

time and place of the interrogation, the status of the interrogator, the status of

the suspect, and other such factors." State v. P.Z., 152 N.J. 86, 103 (1997)

(citations omitted).

7 A-0499-19
The record shows an obvious and significant deprivation of defendant's

freedom of action when he was stopped by the police. The team was aware

defendant possessed four large trash bags of marijuana he obtained from a

confidential informant. The officers were positioned to simultaneously search

defendant's car, place of business, and his home once they received consent or,

if needed, a warrant. While Det. Kelshaw posed no questions other than a

request for consent to search his property, nonetheless defendant was not free to

leave. The record shows that defendant was in custody, and we disagree with

the motion judge to the extent the judge found otherwise.

B. Interrogation

Having found that defendant was in custody, we turn to the question of

whether Det. Kelshaw's request for consent to search was custodial interrogation

for purposes of the Fifth Amendment, thereby triggering defendant's Miranda

rights. We look to both state and federal precedent for guidance on the question

of whether a request for consent to search when a suspect is in custody

constitutes interrogation for purposes of Miranda.

"The privilege against self-incrimination, as set forth in the Fifth

Amendment to the United States Constitution, is one of the most important

protections of the criminal law." State v. Presha, 163 N.J. 304, 312 (2000)

8 A-0499-19
(citations omitted); U.S. Const. amend. V. In general, Miranda "warnings must

be given before a suspect's statement made during custodial interrogation [may]

be admitted in evidence." Dickerson v. United States, 530 U.S. 428, 431-32

(2000). The Miranda Court defined 'custodial interrogation' as questioning

initiated by law enforcement 'after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.'" O'Neal,

190 N.J. at 615 (quoting Miranda, 384 U.S. at 444).

The absence of Miranda warnings does not vitiate
consent to a seizure of personal property, because the
Miranda protections are addressed to constitutional
rights that are distinct from Fourth Amendment rights.
Solicitude for individual privacy is the central thrust of
the Fourth Amendment . . . Privacy rights must be
balanced, however, against the interest of the
community "in encouraging consent [to a search], for
the resulting search may yield necessary evidence of
the solution and prosecution of crime, evidence that
may insure that a wholly innocent person is not
wrongfully charged with a criminal offense."

[State v. Chappee, 211 N.J. Super. 321, 333-34 (App.
Div. 1986) (citations omitted) (quoting Hubbard v.
Jeffes, 653 F.2d 99, 101-102 (3d Cir. 1981)).]

A statement of consent to search by the person in custody is scrutinized

under the Fourth Amendment, not the Fifth Amendment:

In a [F]ifth [A]mendment context a defendant's
statements, in and of themselves, present the potential
constitutional evil. For purposes of the [F]ourth

9 A-0499-19
[A]mendment . . . it is an unreasonable search that is to
be condemned, not the use of the defendant's statements
proving consent to a search. A search and seizure
produces real and physical evidence, not self-
incriminating evidence. Our task under the [F]ourth
[A]mendment is to test the reasonableness of a search
and exclude evidence procured unreasonably. . . .
Therefore, Miranda's ratio decidendi which was
enunciated to strengthen the [F]ifth [A]mendment's
function in preserving the integrity of our criminal
trials should not be superimposed ipso facto to the
wholly different considerations in [F]ourth
[A]mendment analysis.

[United States v. Stevens, 487 F.3d 232, 242-43 (5th
Cir. 2007) (citation omitted) (superseded on other
grounds as stated in United States v. Vasquez, 899 F.3d
363, 372 (5th Cir. 2018)).]

In addition to the Fifth Circuit, other circuits have addressed this issue and

concluded that where officers fail to Mirandize detainees before obtaining a

valid consent to search, the items seized during the search are admissible. See

United States v. Hidalgo, 7 F.3d 1566, 1568 (11th Cir. 1993) (concluding that

defendant's consent to search was valid even though it was obtained after law

enforcement officers read defendant his Miranda rights and defendant had

invoked his right to remain silent. The court found that "a consent to search is

not an incriminating statement" and thus not in violation of Miranda and its

progeny); United States v. McClellan, 165 F.3d 535, 544 (7th Cir. 1999)

(holding that consent to search given after the Miranda invocation of right to

10 A-0499-19
counsel, and fruits of that search, need not be suppressed. The court reasoned

that "consent to search is not an interrogation within the meaning of Miranda

because the giving of consent is not a self-incriminating statement."); United

States v. Payne, 119 F.3d 637, 643-44 (8th Cir. 1997) ("We have never held that

a request to search must be preceded by Miranda warnings or that a lack of

Miranda warnings invalidates a consent to search.").

The record shows that defendant was in custody when Det. Kershaw twice

asked defendant for permission to search his truck. Defendant's valid consent is

not an incriminating statement under Miranda. McClellan, 165 F.3d at 545. The

resultant seizure of the marijuana produced "real and physical evidence, not self-

incriminating evidence" which could violate the Miranda tenets. Stevens, 487

F.3d at 243.

Because Det. Kershaw's request for consent to search implicates Fourth

Amendment considerations, such as safeguarding privacy and preventing

unreasonable seizures, it cannot be considered an interrogation for purposes of

the Fifth Amendment, which is designed to "preserv[e] the integrity of our

criminal trials . . . ." Ibid.

11 A-0499-19
C. Voluntariness of Defendant's Consent

Individuals are protected from unreasonable searches and seizures under

the Fourth Amendment of the United States Constitution and Article I,

Paragraph 7 of the New Jersey Constitution. U.S. Const. amend. IV; N.J. Const.,

art. I, 7. While "[w]arrantless seizures and searches are presumptively invalid

as contrary to the United States and the New Jersey Constitutions[,]" there are a

"few well-delineated exceptions to the warrant requirement[,]" including validly

obtained consent to search. State v. Pineiro, 181 N.J. 13, 19 (2004) (first citing

State v. Patino, 83 N.J. 1, 7 (1980); and then quoting State v. Md., 167 N.J. 471,

482 (2001)). "Implicit in the very nature of the term 'consent' is the requirement

of voluntariness." State v. King, 44 N.J. 346, 352 (1965). Accordingly,

"consent must be 'unequivocal and specific' and 'freely and intelligently given.'"

Ibid. (quoting Judd v. United States, 190 F.2d 649, 651 (D.C. Cir. 1951)).

In King, the Supreme Court listed the following non-exhaustive factors

tending to indicate coerced consent:

(1) that consent was made by an individual already
arrested . . .; (2) that consent was obtained despite a
denial of guilt . . .; (3) that consent was obtained only
after the accused had refused initial requests for consent
to search . . .; (4) that consent was given where the
subsequent search resulted in a seizure of contraband
which the accused must have known would be

12 A-0499-19
discovered . . .; and (5) that consent was given while
the defendant was handcuffed . . . .

[Id. at 352-53 (citations omitted).]

The King court also listed the following opposing factors suggesting that a

defendant's consent was voluntary:

(1) that consent was given where the accused had
reason to believe that the police would find no
contraband . . . ; (2) that the defendant admitted his guilt
before consent . . . ; [and] (3) that the defendant
affirmatively assisted the police officers . . . ."

[Id. at 353 (citations omitted).]

The Court, however, acknowledged that "[e]very case necessarily depends upon

its own facts," and that "the existence or absence of one or more of the above

factors is not determinative of the issue." Ibid.

Thereafter, in State v. Johnson, 68 N.J. 349, 353-54 (1975), our Supreme

Court held that "where the State seeks to justify a search on the basis of

consent[,]" an "essential element" of its burden to show that consent was

voluntary "is knowledge of the right to refuse consent." The Johnson court,

however, did not require the police "to advise the person of his right to refuse to

consent to the search" in a "non-custodial situation." Id. at 354. Rather, it

merely required the State to demonstrate "knowledge on the part of the person

involved that he had a choice in the matter." Ibid.

13 A-0499-19
In State v. Carty, 170 N.J. 632, 646 (2002), the court noted that "the

Johnson standard has not been effective in protecting our citizens' interest

against unreasonable intrusions when it comes to suspicionless consent searches

following valid motor vehicle stops." The Carty court explained that "consent

searches following valid motor vehicle stops are either not voluntary because

people feel compelled to consent for various reasons, or are not reasonable

because of the detention associated with obtaining and executing the consent

search." Ibid. Accordingly, it "expand[ed] the Johnson . . . standard and [held]

that unless there is a reasonable and articulable basis beyond the initial valid

motor vehicle stop to continue the detention after completion of the valid traffic

stop, any further detention to effectuate a consent search is unconstitutional."

Id. at 647.

Defendant argues that the three consents to search his property he signed

were not voluntary and that the trial judge erred in denying his motion to

suppress. We recognize two King factors extant in the record which indicate

coerced consent. First, defendant clearly knew a search of his truck would

reveal the bags of marijuana he obtained from the confidential informant.

Second, defendant gave written consent to search his truck only after twice

requesting to speak to his attorney. Only after the failed second attempt did

14 A-0499-19
defendant consent to the searches of his truck and other property. However,

each consent case is fact dependent, and "the existence or absence of one or

more of the . . . factors is not determinative of the issue." King, 44 N.J. at 353.

The factors are simply "guideposts to aid a trial judge in arriving at [their]

conclusion . . . ." Ibid.

Det. Kelshaw read aloud the consent form to defendant three times. The

consent to search form included language reminding property owners of their

right to refuse the search. The detective testified that if a subject of an

investigation states that he does not want to sign the consent for search form, he

would treat that statement as a refusal and obtain a search warrant. Knowing

the police would find drug contraband, defendant tried unsuccessfully to contact

his attorney twice, and then elected to give written consent to search his truck

and his other property. Defendant never stated specifically that he did not

consent to the searches, nor did he specifically state that he still wished to speak

to his attorney. We find there is sufficient credible evidence in the record to

support the trial judge's finding that defendant's consent was knowing,

intelligent and voluntary "despite the presence of . . . potentially coercive King

factors." State v. Hagins, 233 N.J. 30, 43 (2018).

15 A-0499-19
D. Right to Counsel

Our federal and state constitution both guarantee the right to counsel in a

criminal prosecution. U.S. Const. amend. VI; N.J. Const. art. I, 10. "[T]he

right to counsel 'is triggered when "adversary judicial proceedings have been

initiated."'" State v. A.G.D., 178 N.J. 56, 63 (2003) (first quoting State v.

Sanchez, 129 N.J. 261, 265 (1992); and then quoting Kirby v. Illinois, 406 U.S.
682, 688 (1972)). It is undisputed that an "[i]ndictment triggers the onset of the

formal adversarial judicial process." State v. Wint, 236 N.J. 174, 203 (2018);