On defendant's motion to suppress.
Defendant James Williams was indicted for the following offenses: murder of Susan Schweikart; rape of Susan Schweikart and Tauba Zintz; robbery of Susan Schweikart and Tauba Zintz, and atrocious assault and battery against Tauba Zintz. All of these offenses, according to the indictments, took place on June 16, 1967.
Defendant moved to suppress the following items of evidence: a pair of black pants, a green knit shirt, a pair of blue socks, a pair of sneakers, a small pen knife, a black comb, a black wallet containing 14 miscellaneous papers and cards and 5 photographs, $91.55 in United States currency, a speed deposit plate in the name of Tauba Zintz -- No. 301-02208-9, and a Stern's charge plate in the name of Tauba Zintz, 253 Park Street, Hackensack, New Jersey.
At the hearing on the motion the following persons testified on behalf of the State: Lieutenant Iurato, Captain Morosco, Detective Williams, all members of the Hackensack Police Department, and Lieutenant Graber of the Bergen County Prosecutor's Office. Defendant did not testify but presented Lieutenant Hardy of the Hackensack Police Department, now, however, in retirement, as his witness.
From the evidence on the motion I find the facts to be as follows:
During the night of June 15, 1967, or shortly after midnight on June 16, 1967, the Hackensack Police Department was notified that two women, Susan Schweikart and Tauba Zintz, residing at 253 Park Street, Hackensack, New Jersey, had been raped and robbed. At or about 12:55 A.M. on June 16, 1967 Lieutenant Hardy and Detective Leggiere went to
the scene of the crime and Hardy spoke to both victims, obtaining from them a description of the alleged offender.
He then notified the prosecutor's office and the other Hackensack police authorities of the crime and the information he had obtained and went to the Hackensack Hospital, to which the victims had been removed. At the hospital he spoke with Susan Schweikart and Tauba Zintz. The conversation with Tauba Zintz took place between 2:30 and 3:00 A.M. Thereafter, he went back to the scene of the crime, made a search thereof, and returned to police headquarters a little before 8 A.M., where he spoke to Captain Morosco, Lieutenant Iurato and Detective Williams, and also Detectives Allmers and Fallon and Lieutenant Graber of the prosecutor's office, who were there present. Captain Morosco was in charge of the investigation on behalf of the Hackensack police.
Both victims were alive after the attack and, as stated, were taken to Hackensack Hospital shortly after the attack was reported. Subsequently one of the victims, Susan Schweikart, died, apparently of the injuries she received.
After the victims had been removed to the hospital and the crime had been reported to the Hackensack Police Department and the Prosecutor, they were visited in the hospital by several detectives, including, as indicated, Lieutenant Hardy.
From about 4 A.M. June 16, 1967 until shortly before 8 A.M. Captain Morosco and other law enforcement officers were considering various persons who might fit the description given by the victims. Shortly before 8 A.M. the same day, a meeting was held at Hackensack Police Headquarters. Present were Captain Morosco, Lieutenant Iurato, Detective Leggiere, Detective Williams and Lieutenant Hardy of the Hackensack Police Department, and Detective Allmers and Lieutenant Graber of the Prosecutor's office. From the interviews with the two victims and discussions among the police enforcement officers at and before the meeting, a description of the perpetrator of the offenses emerged. He was described
as a tall, good-looking negro male with a gentlemanly way of speaking, wearing a polo shirt, and of medium build. The general aspects of the crime and possible suspects fitting the description were also then reviewed and discussed at the meeting. Six to eight possible suspects'*fn1 names emerged as being potentially fruitful leads, because they generally fitted the description, including Mark L. Smith, Robert Hill, Donald Akridge, Jessie Bonds and James Williams, the defendant herein. The police then also were made aware of the fact that a red wallet had been taken from the victims containing 2 credit or identification cards and about $100 in cash. No arrest or search warrant was issued with respect to any of the possible suspects.
Captain Morosco assigned various detectives to check out or find and bring back to the station each of the various possible suspects discussed and agreed upon. Two suspects, Akridge and Hill, were immediately eliminated from investigation, since one had been living for some time in Philadelphia and another turned out to be 5'4", the attacker having been described as "tall". Captain Morosco assigned Detectives Hardy and Williams to pick up the defendant and bring him back to headquarters as a possible suspect, since he was one of those who fitted the description of the possible assailant.
Hardy and Williams first went to defendant's home in Hackensack but his parents informed them that he had not been home for two to three weeks and that the parents had seen defendant sleeping in a car with another man the night before. Knowing that defendant frequented a bar known as the 72 Club in Hackensack and having also heard
that defendant had been reported to be spending money freely, Lieutenant Hardy and Detective Williams then went to the 72 Club where, some time soon after 8 A.M. on June 16, 1967 defendant was found. Lieutenant Hardy stayed outside while Detective Williams went into the Club. Detective Williams approached the defendant and asked him to come down to Headquarters because he wanted to talk to him. Defendant at first did not want to go. He asked Detective Williams, "Are you going to lock me up?" and when the detective answered, "No, you are not under arrest, I only want to talk to you", he went with the detective. Defendant had been drinking but was not drunk; neither were his faculties in any way impaired.
Defendant went out of the Club with Detective Williams into the street where Lieutenant Hardy was waiting. Both Lieutenant Hardy and Detective Williams testified, and I so find, that at that time defendant was free to go at any time, Lieutenant Hardy saying that if defendant had walked away he would have called him back but would not have attempted physically to detain him.
Both Lieutenant Hardy and Detective Williams were of the view that defendant generally fit the description given to them and, in addition, saw that he had brown stains on his polo shirt, the color of which shirt might have corresponded to that of the person described as the perpetrator of the crimes. Detective Williams believed these to be blood stains; Lieutenant Hardy thought they could be blood stains but was not sure. Both Lieutenant Hardy and Detective Williams rode back to Police Headquarters with defendant, Detective Williams driving and Lieutenant Hardy sitting in the back with the defendant. Defendant voluntarily entered the police car without balking or fussing. Detective Williams said nothing to the defendant during the ride back to Headquarters but Lieutenant Hardy asked him where he had been the night before, in view of the information which he had received from the defendant's parents that he had not been seen for about 2 to 3 weeks. Defendant
said that he had slept in a car the night before. Both Lieutenant Hardy and Detective Williams testified, and I find as a fact, that defendant could have voluntarily left their presence from the moment he was met at the 72 Club to the moment that he entered Police Headquarters.
The defendant was brought to the Detective Room of Hackensack Police Headquarters by the two detectives for questioning. This was a large room in which all possible suspects are interviewed with respect to any crime. He was brought into Headquarters at about 8:30 A.M. on June 16, 1967 and a discussion took place among him, Lieutenant Graber of the Prosecutor's Office, and Lieutenant Iurato of the Hackensack Police Department, for about 5 or 10 minutes. Lieutenant Iurato, who had known defendant since defendant was a baby, and lived two blocks from him, questioned defendant. He asked defendant about his actions or whereabouts during the night of the crimes but he did this, he testified, and I so find, not because defendant was then a real suspect to him but merely because he knew the defendant as a friend. Defendant sat near a desk. Lieutenant Graber of the Prosecutor's Office asked the defendant to empty his pockets and whether he had any money on him. Defendant thereupon put 55 cents in change on the desk. Graber asked whether he had any more and defendant said, "I have" and then put $12 on the desk. He then drew a black wallet from his pocket and rather petulantly threw it on the desk, stating, "Don't touch it. It's my mother's." When the defendant so threw the wallet, the force of the throw caused the deposit plate and the charge plate, on which Tauba Zintz' name appeared, and which are among the items sought to be suppressed, to fall out therefrom on the desk.*fn2 At this point Captain Morosco, who was in
charge of the investigation for the Hackensack Police Department, stated "hold it" and Lieutenant Graber formally placed defendant under arrest for the crimes involved and simultaneously advised defendant of his constitutional rights -- to remain silent, the right to have an attorney, and all of the other rights which are required by Miranda. The arrest took place about 10 minutes after defendant's arrival at Police Headquarters. After the arrest the evidence sought to be suppressed by this motion was taken from the defendant by the Prosecutor's Office.
As stated, the law enforcement officers were actually looking for a red wallet which they believed contained the approximately $100, as well as the deposit plate and charge plate, which had been taken from the victims. None of the enforcement officers was aware of what the black wallet contained until defendant's throw caused the two plates to fall therefrom; nor did any of them ask defendant to produce, or whether he had, any wallet whatsoever.
Prior to the arrest, Lieutenant Graber also asked defendant where he had been the night before. He told Graber that he had been at the 72 Club and at Leon's, also located in Hackensack. Lieutenant Graber also asked defendant, as indicated, to empty his pockets, not only to determine whether defendant had any unusual amount of money, but also basically to determine whether defendant was carrying a concealed weapon. Lieutenant Graber had heard from the Hackensack police that defendant had a past history of violence and Lieutenant Hardy and Detective Williams had informed Graber that they had not searched the defendant before bringing him to Headquarters.
After the arrest, Lieutenant Hardy and Detective Williams were dispatched to the 72 Club again to see whether they could find the red wallet and they also searched Pete Baker's car, the place where defendant told Lieutenant Hardy he had slept the night before. There is nothing in the evidence to indicate that any of the items sought to be suppressed were found during this last search.
During all the questioning there were a number of detectives milling around the room, apparently all of them armed.
A period of approximately 5 to 10 minutes elapsed between the time that defendant entered the Detective Room at Headquarters and the time that he was formally arrested. Captain Morosco and Lieutenant Graber testified, and from their testimony and that of some of the other law enforcement officers present, including my inference from such testimony as to defendant's cooperative, though somewhat sullen, behavior during his short stay in Police Headquarters, I find that, even at such Headquarters, defendant was free to leave at any time and was not in custody or under arrest until he was formally arrested.
In short, I find that defendant could have voluntarily left the presence of the police from the moment he met Detective Williams at the 72 Club until the moment of his formal arrest by Lieutenant Graber of the Prosecutor's Office, and until the latter moment he was not in custody, under any restraint, or under arrest.
Defendant never denied or admitted his implication in the crimes involved herein or any other crimes prior to being placed under arrest. Only after he was placed under ...