Conford, Kilkenny and Leonard. The opinion of the court was delivered by Conford, S.j.a.d. Kilkenny, J.A.D. (dissenting).
The substantial question here is whether a written confession given the police by defendant as to his participation in a gas station robbery on South Orange Avenue, Newark, was admitted in evidence erroneously because of the absence of timely warning to defendant of his rights as required by Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2 d 694, 10 A.L.R. 3 d 974 (1966). Defendant was convicted of the crime.
A preliminary hearing on admissibility of the confession in relation both to compliance with Miranda and voluntariness was held out of the presence of the jury. At the hearing Detective Bostic of the Newark police testified that defendant surrendered himself at police headquarters the evening of October 5, 1967, saying that he understood from his wife that detectives had been at the house looking for him "in connection with another crime," i.e. , other than the gas station robbery. He was promptly arrested for the other crime and remained in custody over night. The record does not indicate that he confessed to the other crime.
Bostic testified that on the morning of October 6, 1967, having received information that defendant was involved in the South Orange Avenue gas station robbery, he began an
interrogation of him. Bostic's first question to defendant, before giving him any of the Miranda warnings,*fn1 was whether he knew anything about the holdup on South Orange Avenue. Defendant's response was that he wanted to make a "clean sweep." Thereafter Bostic informed defendant of his Miranda rights, and presented to him a written waiver of all such rights, which defendant signed. Thereupon, on further inquiry, defendant confessed his complicity in the robbery, the confession was put into written form, and defendant signed it.
The trial court overruled defendant's objection to admission of the confession on the ground that it was obtained after the Miranda warnings were given; that the only effect of failure to give the warnings before the commencement of the interrogation was to prevent the State from introducing into evidence anything incriminatory said by defendant before the warnings were given and waiver obtained, but not to exclude anything said by defendant subsequent thereto.
Under the circumstances here present, we are firm that the trial court erred. The Miranda opinion itself states and emphasizes five or six times that the warnings must be given at the outset of any interrogation of a suspect of a crime in police custody. Our own Supreme Court says that the Miranda warnings must be given whenever a suspect is in custody and "is subjected to questioning." State v. Barnes , 54 N.J. 1, 5-6 (1969). While violation of that enjoinder might not be fatal in relation to any nonincriminatory response to such interrogation made before the warnings, it clearly is fatal to the entirety of an ensuing confession if it is preceded by an incriminatory response elicited before the warnings are given and an effective waiver obtained from the suspect. This is what occurred here.
This situation is not comparable with State v. Barnes, supra , where the question was asked of a defendant, being
sought for escape, present in a car with others, "Whose stuff is this?", in reference to some checks seen on the floor of the car. There defendant, who made an incriminatory response, was not at all a suspect of any crime related to the checks. The court stressed that the question did not focus "on any particular suspect." (At p. 6)
Certainly Miranda will not stand the interpretation that the police need not give the warnings to a known suspect , as here, merely because the form of the interrogation is: "Do you know about the x robbery?" rather than: "We know you did the x robbery. Tell us about it." The inherently compulsive effect of all custodial interrogation of a suspect is presumed, the purpose of the rule being prophylactic. Miranda , at p. 467, 86 S. Ct. 1602.
Defendant was a suspect of this particular crime when the interrogation began that morning. Bostic said so. When, on specific query concerning this crime, defendant said he wanted to make a "clean sweep" (undoubtedly meaning a "clean breast of it," in common parlance), Bostic could have had little doubt that defendant was telling him he was involved in the crime. At the very least, that interpretation is, if not the only conceivable meaning of such a remark, a common and generally taken signification of it. The trial court did not find that this did not constitute self-incrimination, and we ...