Opinion
DOCKET NO. A-5797-08T1
03-30-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LAMONT BOYD, Defendant-Appellant.
Patricia Nichols, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Nichols, of counsel and on the briefs). Mary E. McAnally, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. McAnally, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Alvarez and Skillman.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 06-01-0133 and 07-08-1357.
Patricia Nichols, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Nichols, of counsel and on the briefs).
Mary E. McAnally, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. McAnally, of counsel and on the brief). PER CURIAM
After the denial of his motion to suppress physical evidence, and statements made during custodial interrogation, defendant Lamont Boyd entered guilty pleas to three counts of Bergen County Indictment No. 06-01-0133: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (count five); and first-degree armed robbery, N.J.S.A. 2C:15-1 (counts fifteen and sixteen). He also entered a guilty plea to count two of Indictment No. 07-08-1357, a charge of first-degree armed robbery, N.J.S.A. 2C:15-1. On February 27, 2009, defendant was sentenced on both indictments in conformity with the plea agreement. On the first indictment he received concurrent ten-year terms subject to the No Early Release Act's (NERA) eighty-five percent parole ineligibility. N.J.S.A. 2C:43-7.2(a). On the second indictment he received a consecutive ten-year term of imprisonment, also subject to NERA. Defendant appeals the denial of his pre-trial motion to suppress as well as his sentence. We affirm.
Originally a Middlesex County indictment, No. 05-12-1573, this case was transferred to Bergen County for prosecution, and renumbered as a Bergen County indictment.
Defendant raises the following points on appeal:
POINT I
DEFENDANT'S STATEMENTS SHOULD HAVE BEEN SUPPRESSED AS THEY VIOLATED HIS RIGHT TO REMAIN SILENT AND HIS RIGHT TO COUNSEL. U.S. CONST. AMEND V, VI and XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10
A. Defendant's July 11, 2005 Statement Should Have Been Suppressed Because It Was Obtained Without The Knowledge That Criminal Complaints Were Filed Against Him And A Warrant Issued For His Arrest
On The Charges Which Were The Subject Of The InterrogationPOINT II
B. The July 15, 2005 And The July 22, 2005 Statements Regarding The Bergen County Offenses Should Have Been Suppressed Because They Were Obtained In Violation Of Defendant's Right to Counsel
C. The July 15, 2005 And The July 22, 2005 Statements Regarding The Middlesex County Robbery Should Have Been Suppressed Because They Were Obtained In Violation of Defendant's Right To Remain Silent
THE "BERGEN COUNTY PROSECUTOR'S MIRANDA" FORM USED IN THIS CASE IS PER SE UNCONSTITUTIONAL AS IT REQUIRES DECLARANTS TO SIMULTANEOUSLY ACKNOWLEDGE AND WAIVE THEIR RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND NEW JERSEY'S COMMON-LAW PRIVILEGE AGAINST SELF-INCRIMINATION. U.S. CONST. Amend. V and XIV; N.J. CONST. (1947) Art. I, pars. 1, 9, 10
POINT III
THE WARRANTLESS SEARCH OF THE GREEN MERCURY SABLE, LEGALLY PARKED ON THE STREET IN PALISADES PARK WAS CONDUCTED IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTION BECAUSE THERE WAS NO LEGITIMATE EXCEPTION TO THE WARRANT REQUIREMENT. FURTHER, THE SECOND SEARCH OF THE WALLET ONCE REMOVED FROM THE CAR WAS CONDUCTED IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTION BECAUSE, BY THE TIME THAT SEARCH TOOK PLACE, ANY REASONABLE NOTION OF "COMMUNITY CARETAKING" HAD LONG SINCE PASSED, AND THERE WAS SUFFICIENT TIME TO GET A WARRANT, TELEPHONIC OR OTHERWISE. U.S. CONST. Amend. IV and XIV; N.J. CONST. (1947) Art. I, pars. 1, 7
A. The Seizure of the Car Violated Defendant's State and Federal Constitutional Rights to be Free From Unreasonable SeizuresPOINT IV
B. The "Inventory" of the Car Violated Defendant's State and Federal Constitutional Rights to be Free from Unreasonable Searches and Seizures
C. Officer Ramos' Examination of the Contents of the Wallet at the Scene of the Robbery Violated Defendant's State and Federal Constitutional Rights to be Free From Unreasonable Searches
THE TRIAL COURT ERRED IN FAILING TO ADVISE DEFENDANT OF THE CONSEQUENCES OF NOT ATTENDING THE ADTC EVALUATION REQUIRED UNDER N.J.S.A. 2C:47-1 AND IN MAKING A DETERMINATION, WITHOUT FACTUAL BASIS, THAT DEFENDANT WAS NOT AMENABLE TO TREATMENT. U.S. CONST. AMEND VIII AND XIV; N.J. CONST. (1947) ART. I, PARS. 1, 12
I.
The following facts were developed during the course of the pre-trial hearings conducted on defendant's motions to suppress. While on routine patrol at approximately 7:00 p.m. on July 10, 2005, Officer Benjamin Ramos of the Palisades Park Police Department noticed a green Mercury Sable parked on the street. The car had no front license plate or inspection sticker and appeared to be in "pretty poor condition." The windows on the driver's side were both open because the driver's side door was bound shut by a belt wrapped around the column between the front and rear of the vehicle. Officer Chris Beck, also on patrol that night, radioed dispatch to inquire about the license plate displayed on the rear of the vehicle, only to learn that there was no registration on file. Suspecting that the plate was fictitious, and the car stolen and abandoned, the officers decided to impound the vehicle.
Ramos removed the rear license plate from the vehicle and looked inside, searching the sun visors and glove compartment. He found the front license plate underneath the driver's seat, and a cell phone and wallet on the front seat. The wallet was later determined to belong to defendant. On the rear seat Ramos found a white washcloth wrapped around bullets in a clear plastic bag. While awaiting the arrival of the tow truck, the officers were called to respond to a nearby home-invasion burglary, in which the occupants of a residence were robbed and one was raped. In his haste, Ramos took the wallet and license plate, but left behind the cell phone and bullets.
Upon the officers' arrival at the residence, the victims told them that a gun had been brandished during the crime and described the perpetrators. Because Ramos thought the wallet taken from the Mercury Sable might have some connection to the robbery, he immediately retrieved it from his troop car. He confirmed the documents inside the wallet matched the description of the man who had committed the rape.
Knowing the Mercury Sable had not been towed, Ramos returned to the area where it had been parked, only to find it was gone. He collected potential evidence from the ground near where the car had been parked, cigarette butts and chewing gum, which Beck had dumped out of the vehicle while searching it.
Earlier that evening, a gas station attendant had been shot during a robbery in New Brunswick. A passing family saw the gunman fleeing the scene; he pointed a firearm at them and escaped in a car matching the description of the Mercury Sable.
The following day, July 11, 2005, Detective Ronnie Petzinger of the Bergen County Prosecutor's Office arranged for warrants for defendant's arrest to issue for the home-invasion burglary. The warrants were faxed to Connecticut, and that evening, Petzinger was informed that the Connecticut authorities had defendant in custody. When Petzinger and three other officers arrived at approximately 11:00 p.m. that night, they met with defendant in an interview room at the police station where he had been detained. Neither this interview, nor the two that followed, on July 15 and 22, 2005, were recorded, nor were defendant's statements reduced to writing.
At the time of these interviews, the recordation requirement found in our rules had not yet taken effect. R. 3:17 (eff. Jan. 1, 2007).
When the interview began, defendant immediately asked "what the investigation was all about . . . ." Petzinger administered the Miranda warnings before responding. Petzinger testified that on this and every other occasion defendant was interviewed, she read each line of the written Miranda warnings to defendant, had him initial each line, and, once he indicated he wished to waive his Miranda rights, sign the acknowledgment.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Petzinger then explained to defendant that the officers were investigating a number of crimes committed the prior day in Palisades Park. Defendant denied ever being in New Jersey and could not explain the presence of his wallet in the Mercury Sable found parked on a Palisades Park street. Defendant eventually admitted renting the Mercury Sable for a week, but then insisted that he had "rented" the Toyota that had been stolen from one of the victims of the home-invasion burglary the day before. When Petzinger confronted defendant with the fact the Toyota had been stolen only the prior day, defendant stopped the interview.
Defendant testified that at the first meeting with the officers, he asked Petzinger "what [he] was being arrested for" and "she actually told [him] what all the charges are all about." He said it was not until after the charges for which he was arrested were explained to him that he waived his Miranda rights or signed the Miranda card. Defendant also said that when he requested the services of counsel, he was refused because it was too late in the evening for him to be assigned an attorney.
The following morning, July 12, 2005, defendant was represented by a public defender at an initial abbreviated extradition hearing. The Connecticut Superior Court judge explained to defendant:
I've appointed a public defender. You can test the legality of your arrest and have your case continued for a reasonable time to apply for writ of habeas corpus to require the issuance of a governor's warrant to send you back to New Jersey or you can agree to go back, agree to being given to duly accredited agents of New Jersey, waive the issuance of a governor's warrant and release Connecticut from any claims for your detention here. Do you understand all that?When defendant attempted to interject that he had an alibi for the date of the crime, the judge reiterated: "All you can fight in Connecticut is, were you arrested legally in Connecticut on this warrant; that's it."
Meanwhile, the authorities ascertained that the Mercury Sable was registered to a Richard Hagen. Hagen subsequently identified defendant and his co-defendants as the individuals who had borrowed the Mercury Sable.
Also spelled "Hagan" and "Haguen" in transcripts.
On July 15, 2005, Petzinger and other officers returned to New Haven to interview defendant. Before defendant met with or saw the New Jersey officers, he signed a form stating:
This is to indicate my willingness and desire to be interviewed and/or photographed by . . . Detective Ronnie Petzinger and Detective Frank Salento of the Bergen County Prosecutor's Office, New Jersey. . . . I understand I may refuse to be interviewed and/or photographed by the above parties but chose of my own will to be interviewed.At the start of the interview, the Miranda rights were readministered, defendant initialed and signed the Miranda card, and waived his right to remain silent. Defendant did not mention that an extradition hearing had been conducted on the charges, or that he had been represented in court, either during the course of this second interview or the third interview a week later.
During this second interview, defendant admitted his role in the Palisades Park burglary and rape. Defendant also told the officers about the gas station robbery in New Brunswick and named his accomplices in that crime. To that point, the Bergen County authorities had not connected defendant or his cohorts to the event. The late afternoon interview ended at 5:30 p.m.
Defendant's recollection of the second interview was that he agreed to meet with the New Jersey authorities solely to avoid being placed in administrative segregation by the Connecticut correctional authorities if he did not. He also claimed that because he had taken his "bunkie['s]" Seroquil to induce sleep because of the "stress" of the situation, he just automatically signed everything presented to him.
When Petzinger returned on July 22, 2005, for the third interview, defendant was re-Mirandized, and initialed and signed the waiver. He reiterated his inculpatory statements. Defendant claimed that during this interview, the officers told him that his best possibility for getting a deal for less than twenty years imprisonment was to cooperate. On cross-examination, defendant was equivocal, stating, "It's my testimony that I don't recall telling [Petzinger] anything." Despite his willingness to inculpate himself on this and the prior occasion, defendant refused to sign a written statement or to be recorded.
The trial judge denied defendant's motion to suppress physical evidence in a twenty-one page written opinion, issued after several days of hearings. He concluded that the items taken from the Mercury Sable were admissible because they were seized incidental to the officers' exercise of their community caretaking function. The unusually dilapidated appearance of the vehicle, and the absence of properly registered license plates, gave credence to the officers' suspicion that the vehicle had been stolen or abandoned. The judge noted that the officers did not even enter the vehicle until they confirmed that the vehicle's plates did not match the identification number, circumstances generally leading to impoundment.
The judge also observed that N.J.S.A. 39:5-47 authorizes police to seize motor vehicles found on public roadways when there is a "reason to believe that the motor vehicle has been stolen or is otherwise being operated under suspicious circumstances . . . ." The inventory procedures followed by the officers, once they decided to impound the car, were "reasonable and lawful under all the attendant circumstances." These procedures included the officers' entry into the Mercury Sable's passenger compartment to secure items of value, such as the wallet and cell phone located on the front seat. In the judge's view, therefore, the State readily carried its burden of proof as to the warrantless seizure of the wallet and license plate taken from the Mercury Sable.
Only the wallet and the license plate were ultimately seized because the officers left the scene upon hearing about the home-invasion burglary, and when they returned, the car was gone.
The judge also denied defendant's motion to suppress his statements. He characterized Petzinger as a credible witness, who "testified clearly, convincingly, and without hesitation." In making his decision, he relied upon her testimony that on each occasion she interviewed defendant, she explained the Miranda forms to him, he read them, and signed and initialed them prior to waiving his rights. The judge also found credible Petzinger's statement that at the start of the second interview, she asked defendant if he was represented, and he told her he did not have counsel.
In contrast, the judge described defendant's testimony as "less credible and reliable." As he was questioned during the suppression hearing, defendant hesitated at various points, and "when pressed" on certain key issues, he responded by saying that he was unable to recall, instead of answering more directly. The judge considered it to be consequential that defendant, on cross-examination, denied any recollection whatsoever of the substance of the third interview even though he claimed on direct examination that he was told that his best possibility of being offered a deal of less than twenty years required his cooperation.
Based on these credibility assessments, the court rejected defendant's claims that he was threatened or coerced, that he signed Miranda forms only as "an afterthought," or that he either requested the services of an attorney or informed the New Jersey authorities that he was represented by an attorney. The judge concluded that the State met its burden of proving that defendant's statements were made intelligently, freely, and voluntarily "after the proper administration of Miranda warnings."
II.
It is the State's burden to prove beyond a reasonable doubt that an accused's statement was made after a knowing, intelligent, and voluntary waiver of the right to remain silent. See State v. Presha, 163 N.J. 304, 313 (2000). In deciding the issue, we look to the "totality of the circumstances . . . ." Ibid. The assessment is fact-sensitive, State v. Dispoto, 189 N.J. 108, 124-25 (2007), and includes considerations such as defendant's age, education, intelligence, the length of his detention, and the nature of the questioning. Presha, supra, 163 N.J. at 313.
In determining whether the requisite informed and voluntary waiver was made, we also ask whether the trial court's findings were based on sufficient, credible evidence. State v. Locurto, 157 N.J. 463, 472 (1999). We do not disturb the court's rulings, particularly as to credibility, when the findings are supported by such evidence. See ibid. After all, only the motion court has the opportunity to observe the demeanor of the witnesses and develop a feel for the case. State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005). The ultimate issue of voluntariness, however, is a legal one. State v. Pillar, 359 N.J. Super. 249, 268 (App. Div.), certif. denied, 177 N.J. 572 (2003).
Defendant first contends that his July 11, 2005 statement should be suppressed because police violated the principle that before being interviewed, a suspect must be informed of the existence of a criminal complaint or issuance of a warrant for his arrest. See State v. A.G.D., 178 N.J. 56, 68 (2003). Defendant did not raise A.G.D. to the trial judge as a basis for the suppression of his statements.
Once "a veil of suspicion is about to be draped on [a] person," the interviewee is entitled in fairness to know the true state of affairs before waiving his right to remain silent under Miranda. Ibid. In A.G.D., the suspect was taken to the police station for questioning but not told that a warrant had issued for his arrest. Id. at 66. As a result, the full confession he made subsequent to his Miranda waiver was suppressed. Id. at 58-59.
As the Court clarified in State v. Nyhammer, 197 N.J. 383, 404-08, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009), however, the purpose of A.G.D. is to ensure that a suspect is not deceived about the extent of the jeopardy in which he finds himself. In order to make an informed decision as to the exercise of his right to remain silent, a suspect must know his true status. See Nyhammer, supra, 197 N.J. at 407-08; see also A.G.D., supra, 178 N.J. at 68.
Contrary to the factual scenario asserted on appeal, it was defendant who testified unequivocally that he did not sign a Miranda waiver at that first interview until after the charges for which he was in custody were explained to him. As he put it, he would not sign anything until the New Jersey officers "informed me [of] the nature of the crimes." Therefore, defendant's own words during the hearing make his claim on appeal untenable.
Additionally, unlike A.G.D. and its progeny, in this case defendant could not have been deceived about his status. He was taken into custody in Connecticut on arrest warrants from New Jersey and was interviewed in a police station after several hours of detention. We therefore conclude that the principles enunciated in A.G.D. do not constitute a basis for the suppression of defendant's July 11, 2005 statements. Defendant could not mistake the gravity of his situation since he was in custody. He was informed by Petzinger of the nature of the charges against him prior to the first interview.
III.
Before proceeding to consider defendant's next contention of error, that his right to counsel was violated because the New Jersey authorities interviewed him without contacting his Connecticut extradition counsel, we reiterate that the trial judge found Petzinger credible and defendant incredible. Petzinger "testified clearly, convincingly, and without hesitation," while defendant hesitated in responding to questions unfavorable to his position, and when pressed, simply claimed he could not remember. The trial judge did not credit defendant's claim that he was threatened or coerced, given Miranda forms as an afterthought, requested the assistance of counsel, or told Petzinger that he had an attorney.
We reiterate that nothing has been brought to our attention which casts doubt on the judge's credibility findings. As always, we defer to such determinations because they "are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474. Hence we accept the trial judge's finding that Petzinger did not know, and defendant did not tell her, that he had appeared in court for an extradition proceeding or that he had been assigned counsel for that purpose before either the second or third interviews.
This is not a situation in which the officers might naturally question whether a defendant is represented, such as where he is being held in a foreign jurisdiction for crimes committed there. In that scenario, it would be natural for officers to inquire about the status of the foreign jurisdiction charges, and the status of a defendant's legal representation. But Petzinger had no reason to inquire or to know, and defendant did not tell her, that he had been assigned an attorney for the purpose of the extradition hearing.
Furthermore, the distinction between substantive charges and fugitive charges is significant in this case. Counsel was assigned to defendant to provide him with representation during the extradition hearings, relative only to the fugitive warrant, not the underlying substantive New Jersey charges. And defendant was told in the clearest of terms by the extradition judge that the sole purpose of the hearing was to address the legality of his Connecticut arrest, and to determine whether he wished to compel the issuance of a governor's warrant from New Jersey. After having been so advised, defendant would have reasonably assumed his extradition attorney was assigned for that limited purpose.
An extradition hearing is completely separate from the criminal trial, see Ex parte Cohen, 23 N.J. Super. 209, 217-18 (App. Div. 1952), aff'd, 12 N.J. 362 (1953), as the only issues are "whether the person sought to be extradicted is the person named and whether he is a fugitive from justice . . . ." State v. Dieffenbach, 137 N.J. 531, 583 (Law Div. 1975). Therefore, defendant's waiver of his right to counsel at his interviews is not made improper by the fact he had appointed counsel who represented him during the extradition hearing. So long as he was informed of his Miranda rights, he could waive his right to counsel without an attorney present despite representation for the purpose of extradition. See A.G.D., supra, 178 N.J. at 64.
We therefore conclude that defendant's right to counsel was not violated because the detectives spoke to him directly, in the absence of his extradition attorney. The detectives did not know nor could they have reasonably been expected to know, and defendant did not tell them, about the attorney who represented him during the extradition hearing. No violation of the right to counsel occurred.
IV.
Defendant also contends his July 15, 2005 and July 22, 2005 statements should have been suppressed because once he informed Petzinger at the close of his first interview on July 11 that he did not want to continue, subsequent efforts to speak to him violated his right to remain silent. In Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 320-21 (1975), the Court held that the requirement of Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726, that a suspect's invocation of the right to remain silent must be "scrupulously honored" cannot "sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent." Applying this holding, the Court concluded that the questioning of Mosley by another police officer at another location about a different crime than the one with respect to which he had invoked his right to silence, after the fresh administration of Miranda warnings, did not violate the requirement of Miranda that the invocation of the right to remain silent must be "scrupulously honored." Mosley, supra, 423 U.S. at 104-07, 96 S. Ct. at 326-28, 46 L. Ed. 2d at 321-23.
We note that if a defendant subject to custodial interrogation has requested an attorney, a different analysis is required than when a suspect invokes the right to remain silent without requesting an attorney. See Edwards v. Arizona, 451 U.S. 477, 485, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386-87 (1982); Mosley, supra, 423 U.S. at 101 n.7, 104 n.10, 96 S. Ct. at 325, 326, 46 L. Ed. 2d at 319, 321; State v. Mallon, 288 N.J. Super. 139, 145-46 (App. Div.), certif. denied, 146 N.J. 497 (1996).
In State v. Hartley, 103 N.J. 252, 262-87 (1986), our Supreme Court interpreted and applied Mosley. The Court noted that there had been disagreement both in the lower courts and among scholarly commentators as to which of the factors applicable in Mosley was "indispensable to fulfillment of the 'scrupulously honor' requirement of Miranda." Id. at 267. Without considering the other factors applied by lower courts and discussed by commentators, the Court held that one indispensable requirement of a resumption of questioning of a suspect who has invoked the right to remain silent is "the furnishing of fresh Miranda warnings." Ibid. The Court gave the following explanation for this holding:
Although the Supreme Court specifically avoided, in Mosley, the adoption of a "per se" test for determining when a suspect's previously-invoked right to silence had been "scrupulously honored," we nevertheless are convinced that our establishment of a "bright-line" minimum requirement of renewedBecause the police officer who resumed questioning of Hartley after his invocation of the right to remain silent failed to administer fresh Miranda warnings, the Court concluded that the suppression of his inculpatory statement was required without consideration of other Mosley factors that could be relevant in other circumstances.
warnings for determining when that right has not been scrupulously honored not only is sound as a matter of New Jersey common law but is also consistent with the spirit of the Supreme Court's decisions and hence with the federal law as we understand it.
[Id. at 268.]
Thus, Hartley cannot be read to hold that the re-administration of Miranda warnings is sufficient by itself to establish that the privilege against self-incrimination of a suspect who has previously invoked the right to remain silent has been "scrupulously honored." The Court made this point clear when it noted in State v. Fuller, 118 N.J. 75, 84 (1990), that Hartley "did not . . . state that fresh Miranda warnings alone are sufficient to satisfy the requirement that the right [to remain silent] be scrupulously honored, only that they are indispensable." See also Mallon, supra, 288 N.J. Super. at 147 ("Under some circumstances, where the police have not 'scrupulously honored' a previously invoked right to silence, readministration of Miranda rights will not cure the violation").
It is also clear that if a defendant's invocation of the right to silence has not been "scrupulously honored," an inculpatory statement will be suppressed notwithstanding its "voluntariness." Mosley, supra, 432 U.S. at 100, 96 S. Ct. at 324-25, 46 L. Ed. 2d at 319. Moreover, unless a suspect's initial invocation of his right to remain silent has been "scrupulously honored," he cannot thereafter "waive" his right to remain silent. Hartley, supra, 103 N.J. at 260-61; Fuller, supra, 118 N.J. at 84; State v. Burno-Taylor, 400 N.J. Super. 581, 589-90 (App. Div. 2008); Mallon, supra, 288 N.J. Super. at 146.
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The Court has not had occasion to consider the application of other Mosley factors in determining whether the right to remain silent was scrupulously honored in a case, unlike Hartley, where fresh Miranda warnings were administered before renewed questioning. However, the Court has suggested that the passage of a significant period of time between the invocation of the right to remain silent and the resumption of questioning is one relevant factor. Cf. State v. Bey, 112 N.J. 45, 70 n.15 (1988) ("We intimate no view regarding how long a cessation is required before questioning may be resumed, or concerning whether a change in location and/or subject-matter is required as well").
The decisions of this court indicate that the Mosley factors can be understood to focus on conduct and circumstances that add to or tend to diminish the impact of the coerciveness of the initial custodial interrogation terminated by the defendant's invocation of the right to remain silent. For example, in Mallon we explained that "[t]he inquiry must be whether [police], despite defendant's invocation of silence, continued to interrogate defendant in an effort to get him to talk." Mallon, supra, 288 N.J. Super. at 148; see also Burno-Taylor, supra, 400 N.J. Super. at 607 (focusing on the officer's "extended attempts to persuade defendant to waive his Miranda rights and agree to speak to them").
In this case there is no evidence that defendant was subjected to any such questioning after invoking his right to remain silent. Moreover, it is undisputed that the officers readministered Miranda at the outset of the second and third interviews. Thus, there was no conduct on the part of the officers that can be characterized as seeking to induce defendant to change his mind.
Although Hartley was decided on the basis of the court's "bright line" rule that Miranda warnings must be readministered before the resumption of questioning of a suspect who has invoked the right to remain silent, see 103 N.J. at 267-68, the Court suggested in dictum that if Miranda warnings are readministered, a "totality of the circumstances" approach should be taken to determine whether a suspect's invocation of the right to remain silent has been "scrupulously honored," id. at 268-71. The Court has also indicated in cases involving other issues regarding the admissibility of inculpatory statements that a "totality of the circumstances" analysis should be undertaken. See A.G.D., supra, 178 N.J. at 67 (As a general rule, "[i]n determining whether a suspect's confession is the product of free will, courts traditionally assess the totality of circumstances surrounding the arrest and interrogation." (quoting Presha, supra, 163 N.J. at 313)).
Under the totality of the circumstances in this case, we conclude that the resumption of questioning of defendant by the Bergen County Prosecutor's Office detectives on July 15, and 22, 2005, after his invocation of the right to remain silent on July 11, 2005, did not violate defendant's privilege against self-incrimination as interpreted in Miranda, Mosley and Hartley. There was a four-day interval between the initial interview of defendant on July 11, 2005, when he invoked the right to remain silent, and the resumption of questioning on July 15, 2005, after the administration of fresh Miranda warnings. During the intervening period, defendant was incarcerated in Connecticut and thus not subject to the control of the New Jersey law enforcement officials. Moreover, he appeared in court represented by counsel during this period and signed a form agreeing to be re-interviewed by the Bergen County Prosecutor's Office detectives before they returned to Connecticut to conduct the July 15, 2012 questioning that resulted in his inculpatory statements. Thus, this is not a case in which the resumption of questioning "followed almost immediately on the heels of defendant's assertion of his right to remain silent." Mallon, supra, 288 N.J. Super. at 289. Rather, as in Mosley, there was a significant passage of time and other intervening circumstances that support the conclusion that defendant's initial invocation of the right to remain silent was "scrupulously honored." See Mosley, supra, 423 U.S. at 102-07, 96 S. Ct. at 326-28, 46 L. Ed. 2d at 320-23.
V.
Defendant also contends that the Miranda form used by the Bergen County Prosecutor's Office violates constitutional principles because after individual rights are initialed by a suspect, the acknowledgment of rights section includes the waiver language. Defendant claims that the wording of the form is deceptive — a suspect cannot acknowledge having been advised of his rights by signing his name, without simultaneously waiving his right to remain silent.
We note the obvious, that defendant had the option, once having initialed each separate right, to refuse to sign the general acknowledgment if he did not wish to waive his rights. Defendant's point that bifurcation of the acknowledgment and waiver language would improve the form is certainly well taken. Nonetheless, the absence of such bifurcation does not mean that this defendant was confused as to the meaning of the language or the legal consequence of his signature. He did not say at the time of the suppression hearing nor does he say now that he was misled by the structure of the form as to the legal consequence of signing his name, or that he thought that by signing his name, he was only acknowledging being told his rights. In the absence of some specific factual assertion in the trial record, the argument that the acknowledgment should have been bifurcated becomes purely academic. We therefore do not consider it. The form did not prejudice defendant's decision to waive his right to remain silent. The point does not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
VI.
Defendant maintains on appeal, as he did in the trial court, that the warrantless search of the Mercury Sable was unconstitutional, exceeding the permissible boundaries of the doctrine of community caretaking. Additionally, he contends that the officers' examination of his wallet did not fit any exception to the warrant requirement.
It is beyond cavil that warrantless searches are presumptively unreasonable and are thus prohibited unless included within a recognized exception — such as the community caretaking exception. State v. Hill, 115 N.J. 169, 173 (1989). The State bears the burden of proving the validity of such warrantless searches. State v. Wilson, 178 N.J. 7, 12 (2003) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)).
The community caretaking doctrine legitimizes a warrantless search when "police are engaged in 'functions . . . totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a statute.'" State v. Cassidy, 179 N.J. 150, 161, n.4 (2004) (quoting State v. Navarro, 310 N.J. Super. 104, 108 (App. Div.), certif. denied, 156 N.J. 382 (1998)). In reviewing these police functions, the standard against which the conduct is measured is its "reasonableness." State v. DiLoreto, 180 N.J. 264, 276-78 (2004).
The initial contact in this case involved an extremely dilapidated, seemingly abandoned motor vehicle parked on a public roadway, a classic instance in which the community caretaking doctrine is applicable. See N.J.S.A. 39:5-47; State v. Hock, 54 N.J. 526, 534-35 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970) (stating that police have the right to impound vehicles that appear stolen). See also Hill, supra, 115 N.J. at 176 (pointing out that United States Supreme Court precedents require as a predicate for the community caretaking exception either impoundment of the vehicle or police custody or control of it); State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992) (permitting officer to stop car when manner of driving indicates a problem with the vehicle); State v. Garbin, 325 N.J. Super. 521, 526 (App. Div. 1999), cert. denied, 164 N.J. 560 (2000) (permitting entry into garage when police observe smoke emanating and truck wheels rapidly spinning); see also State v. Bogan, 200 N.J. 61, 73-75 (2009) (discussing the community caretaking exception in general).
Defendant's wallet was found in a car that was not only unlicensed and unregistered, but perilously unsafe because just a belt secured the driver's side door. For all intents and purposes, the car was wide open. The officers were obliged not only to impound this possibly stolen and clearly uninsured vehicle, they were also obliged to secure its contents before it was towed. The initial decision to seize the wallet is therefore eminently reasonable. See State v. McDaniel, 156 N.J. Super. 347, 359 (App. Div. 1978) (holding that to justify an inventory search, the State must prove the need to impound, and that the inventory search is more than pretext for a general exploratory investigation).
The opening of the wallet and examination of its contents, which revealed defendant's identity, was an inevitable step in the process of taking inventory of the Mercury Sable's contents incidental to impoundment and efforts to locate the true owner. Even if we were to accept defendant's premise that Ramos' opening of the wallet in connection with the home-invasion burglary was not authorized by any exception to the warrant requirement, clearly the State proved by clear and convincing evidence that the wallet was seized pursuant to the community caretaking doctrine. And Ramos' lawful examination of the contents would have occurred on the spot as the officers waited for a tow truck but for the dispatch which called them away from the car. Accordingly, we conclude that the opening of the wallet in connection with the home-invasion burglary was permissible, and the evidence therefore admissible, under at least the inevitable discovery rule. See State v. Finesmith, 406 N.J. Super. 510, 522 (App. Div. 2009) (holding that the inevitable discovery rule applies where proper investigatory procedures would have been followed, which would have resulted in the inevitable discovery of the evidence, in a manner wholly independent of the discovery of the evidence by unlawful methods).
Defendant's final suggestion that the officers were obliged to obtain a telephonic warrant before they could open the wallet and examine the contents is raised for the first time on appeal. See R. 2:10-2. When the authorities encounter a seemingly abandoned, probably stolen, and clearly unsafe vehicle, they are not required to obtain a telephonic warrant before engaging in efforts to locate the owner. Under the inevitable discovery rule, if nothing else, the warrantless examination of a wallet found on the front seat of such a vehicle, in order to locate the owner or the true provenance of the vehicle, does not violate any Fourth Amendment principle. We therefore agree with the trial judge that the seizure of the wallet and the inspection of its contents was reasonable.
VII.
In his final point defendant contends that the trial court committed error in failing to advise him of the potential sentence consequences of not attending and cooperating with the Adult Diagnostic and Treatment Center evaluation as required under N.J.S.A. 2C:47-1. He also asserts that the court erred in finding he was not amenable to treatment. Defendant not only refused to participate in the evaluation, he also waived his right to appear in the courtroom for the imposition of his sentence. His failure to participate in the interview explains and anchors the court's conclusion that defendant was not amenable to treatment within the meaning of the statute. See State v. Logan, 262 N.J. Super. 128, 132 (App. Div.), certif. denied, 133 N.J. 446 (1993).
A defendant convicted of one of the enumerated sexual offenses, such as rape, who is not sentenced to the Adult Diagnostic and Treatment Center shall not be entitled to receive commutation time credits, work credits, or other institutional benefits, resulting in a lengthier sentence. N.J.S.A. 2C:47-3(g). In fact, the language contained in the attachment to defendant's plea form captioned "Additional Questions for Certain Sexual Offenses Committed On or After December 1, 1998" explained this loss of credits in paragraph seven:
Do you understand that if your conduct is not characterized by a pattern of repetitive, compulsive behavior or you are not amenable to sex offender treatment you will not become primarily eligible for parole until you have served any mandatory minimum term imposed by the court or one third of the sentence imposed where no mandatory minimum term is fixed and neither term will be reduced by commutation time for good behavior or work credits?
When he entered his guilty plea, defendant was extensively queried about the plea forms he signed. In the one and one- half page attachment, the consequences of failure to participate in the sex offender evaluation process are explained in detail. We therefore do not address this contention further. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION