On appeal from Superior Court, Law Division, Middlesex County.
Fritz, Kole and Lane. The opinion of the court was delivered by Kole, J.A.D.
Defendants Hardison and Sessions were found guilty by a jury of unlawful possession of a controlled dangerous substance, namely heroin, N.J.S.A. 24:21-20(a)(1), and not guilty of unlawful possession of such substance with intent to distribute it, N.J.S.A. 24:21-19(a)(1). Each defendant was sentenced to a one to two-year term in State Prison to run consecutively to the term that he was then serving in South Carolina. Both defendants appeal.
Sessions claims that the trial judge erred in admitting his extra-judicial statements of March 8, 1977 and March 12, 1977 into evidence. He contends that his statement on March 8, 1977, the night of his arrest, to the effect that the denim jacket found in the automobile was his, was extracted from him without the requisite Miranda warnings (Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)); and his subsequent statement to Detective Coyle on March 12, 1977 was tainted by his initial statement, and that they both should have been suppressed. He also asserts that since the search and seizure here involved were illegal, both statements are inadmissible as having been tainted thereby. The trial judge conducted two Miranda voir dire hearings (one of which also covered a motion to suppress evidence) and held both statements to be admissible.
The facts that follow were developed at the voir dire hearings.
The first statement which Sessions alleges was improperly admitted occurred on the evening of March 8, 1977, the night of the arrest. At about 10:45 p.m. State Troopers Willhouse and Callahan were on uniformed patrol in a marked squad car, southbound on the New Jersey Turnpike, in Cranbury Township. At that time they observed a 1969 Chevrolet, bearing South Carolina license plates, that was "weaving" from lane to lane. They turned on their overhead lights in pursuit of the vehicle. Two individuals were observed in the vehicle. They were "bobbing around in the car . . . and reaching around in the front seat. . . ." Sessions, the passenger, was hunched over. He straightened up and looked back at the officers and then hunched over again. The driver, Hardison, made a similar forward movement toward the right. The officers then pulled the vehicle over.
Following the stop of defendants' car Willhouse approached Sessions on the passenger side of the vehicle. Callahan approached Hardison on the driver's side. Callahan asked Hardison to step out of the vehicle and asked him for his driver's license and registration. As Willhouse approached Sessions he saw Sessions closing the glove compartment "like he just put something in the glove compartment." The passenger's door was opened and Sessions knocked a Coke bottle filled with water out onto the pavement. On Sessions' knee there was a bloody napkin and a small penknife.
Willhouse asked Sessions to get out of the vehicle. A patdown search of Sessions produced no weapons. The troopers, by reason of their observation of defendants' behavior, reasonably concluded that they were under the influence of narcotics.
Callahan conducted a patdown search of Hardison and found a small bag of marijuana in his vest pocket. Callahan escorted Hardison to the rear of the vehicle where Willhouse had brought Sessions.
Willhouse proceeded to check the interior of the car for a possible weapon. He saw a denim jacket between the front bucket seats. As he picked up the jacket he saw glassine bags
in its pocket. He "stepped back out of the car and . . . asked who owned the jacket and . . . Sessions advised it was his. . . ." At this point Willhouse advised Callahan that "they had . . . what I believed to be heroin." Sessions had not been advised of his Miranda rights prior to the trooper's question. Over defendant Sessions' objection, the trial judge ruled that the statement of ownership by Sessions was admissible without that advice. This ruling was correct. State v. Barnes , 54 N.J. 1 (1969), cert. den. 396 U.S. 1029, 90 S. Ct. 580, 24 L. Ed. 2d 525 (1970). See, also, State v. Mann , 171 N.J. Super. 173 (App.Div.1979); State v. Elysee , 159 N.J. Super. 380, 387 (App.Div.1978).
Willhouse's question was spontaneous and open-ended, not asked in the context of an interrogation, and was not specifically directed to Sessions. It was the only question that was asked and Sessions was under no compulsion to answer. The single question asked was not an essential part of the investigation which led to Sessions' arrest, nor was it one of a series of investigatory queries. It was not the type of question that centered blameworthiness on Sessions. He could have attributed possession to anyone, or no one, in answer to a question which was not even specifically directed to him.
We are satisfied that the statement made to Detective Coyle by Sessions on March 12, 1977 was preceded by appropriate Miranda warnings. The statement was given four days after the arrest and after Sessions had been released from custody on bail. We are also satisfied that Sessions understood his Miranda rights and voluntarily waived them. This second statement was in no sense affected by the earlier statement to Willhouse at the scene of the arrest. It was simply an elaboration of the first statement relating how he had obtained the heroin. Since we have held that the first statement was properly admitted, the second statement was plainly not tainted thereby. In any event, ...