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State v. Barry

Decided: December 28, 1979.


On appeal from the Superior Court, Law Division, Essex County.

Lora, Antell and Pressler. The opinion of the court was delivered by Pressler, J.A.D.


Edward Barry appeals his conviction of felony murder and conspiracy to commit armed robbery. We are constrained to reverse.

These convictions arise out of the armed robbery of the First Federal Savings and Loan in Montclair on January 12, 1976. The dramatis personae involved in the crime were Mark Jackson, Archie Murphy, defendant and defendant's brother Walter Barry. The plan was for Jackson to actually enter the bank and hold it up, for Walter Barry to cover Jackson immediately outside the bank and for defendant to wait in and drive the getaway car which was parked some short distance away. The three were then to return to Murphy's East Orange apartment from whence the expedition originated to divide the proceeds. The terrible tragedy of this event, which took place generally according to plan, was that Jackson while in the bank shot and killed a Montclair police officer.

On the day following the robbery the Montclair Police Department received a telephone call in which the anonymous caller described the automobile used in the holdup. That information was immediately teletyped to law enforcement agencies and on the same day an automobile answering that description and being operated by Walter Barry was stopped by the East Orange Police Department. Walter was taken into custody by the East Orange police, interrogated and returned to Montclair. Jackson was identified by the bank's video tape and a warrant issued for his arrest. Thereafter, a warrant was issued for Murphy's arrest. On the evening of January 15, 1976, three days after the robbery, Detective Flaminio of the Essex County Prosecutor's homicide squad, accompanied by a squad investigator and two Montclair police officers, went to Murphy's East Orange apartment to execute this warrant. When they arrived Flaminio saw defendant standing in a group of about five other people and two small children in front of the apparently rather large apartment building in which Murphy resided. Recognizing him from his investigation of a year earlier of another robbery, Flaminio immediately placed defendant under arrest, gave him his Miranda warning and arranged for his transport to a jail facility in Glen Ridge. Neither Flaminio nor anyone else appears to have interrogated him at that time. After the arrest of defendant, Flaminio proceeded to execute the Murphy warrant.

A search of Murphy at the jail revealed his possession of a five dollar bill taken from the bank during the robbery. Sometime thereafter, in the early morning hours of January 16, Murphy gave the police a statement not only incriminating himself but also identifying defendant as the driver of the getaway car. This was the first implication of defendant since Jackson and Walter Barry, although they had previously given statements, had implicated only themselves and each other.

Some hours following Murphy's statement, after defendant had been in custody for some 17 or 18 hours, he was transported

from the Glen Ridge jail to Montclair where he was questioned, apparently for the first time since his arrest. The two Montclair police officers who were conducting the interrogation iterated the Miranda warnings and told defendant that the other three participants had given written statements and that he, defendant, had been implicated. Thereupon, defendant admitted his participation and agreed to give a full statement.

Defendant's primary ground of appeal is that the trial judge erred in admitting his own inculpatory statement into evidence. It is his contention that his warrantless arrest was illegal since, at the time he was arrested, the arresting officer had no probable cause to believe that he, defendant, was in any way at all connected with the bank hold-up or indeed any other crime. If the arrest was illegal, he argues, then the confession obtained as a result thereof is the classical "fruit of the poisonous tree" and is itself inadmissible. See Wong Sun v. United States , 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

We have no doubt that defendant's general contention is a correct statement of constitutional law. If Brown v. Illinois , 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), could possibly be read as having failed to definitively settle the issue, there is nothing in the slightest degree ambiguous about the holding of Dunaway v. New York , 442 U.S. 200, 219, 99 S. Ct. 2248, 2260, 60 L. Ed. 2d 824, 840 (1979). Dunaway stands unequivocally for the principle that if a warrantless arrest lacks probable cause, a confession resulting from that arrest is inadmissible and remains inadmissible despite any solicitude shown for defendant's rights by the police following the illegal arrest. As succinctly articulated by Dunaway, supra , the Constitution does not permit "law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the 'procedural safeguards' of the Fifth."

The threshold issue, therefore, is whether defendant's warrantless arrest by Flaminio was ...

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