On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Pressler, Dreier and Bilder. The opinion of the court was delivered by Dreier, J.A.D.
Defendant has appealed from a conviction based upon his guilty plea to the charge of unlawful possession of marijuana with intent to distribute, N.J.S.A. 24:21-19a(1). The plea, which was unconditional, was entered immediately following the trial judge's denial of defendant's motion to suppress the evidence of the marijuana seized from his home and a pretrial ruling that defendant's statements at the time of his arrest would be admissible at trial. The retraxit plea of guilty had been entered in exchange for the State's recommendation of a probationary sentence conditioned on a county jail term. Defendant was sentenced to a three year probationary term with drug dependency rules as well as a $25 Violent Crime Compensation Board penalty. Defendant has appealed raising two points: first, that evidence of the marijuana in his home should have been suppressed due to a lack of exigent circumstances justifying the search and, second, that admission of the statements made by him at the time of his arrest would violate the proscriptions of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Treating defendant's second point first, we determine that it clearly has no merit. Defendant had entered an unconditional plea of guilty to the charge of possession of marijuana with intent to distribute. By such plea he waived any non-jurisdictional constitutional challenge. As stated by the United States Supreme Court in Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235 (1973):
A guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
See also State v. Keegan, 188 N.J. Super. 471, 474 (App.Div.), certif. den. 93 N.J. 320 (1983), where the court held that R.
3:5-7(d) provides that an appeal from an unconditional plea of guilty "is limited to claims of violation of the state and federal constitutional right to be free from unreasonable search and seizure" only. If defendant wished to preserve the Miranda issue on appeal, he could have entered a conditional guilty plea pursuant to R. 3:9-3(f) with the approval of the court and consent of the prosecuting attorney. See State v. Morales, 182 N.J. Super. 502, 508 (App.Div.1981), certif. den. 89 N.J. 421 (1982). Thus defendant's Miranda objection is not cognizable on this appeal.
The Miranda issue is moreover without factual foundation since after defendant's Miranda rights were given, defendant informed the officers that he knew his rights and without further questioning told them that he had purchased five pounds of marijuana in Brooklyn, that he had insufficient funds from his employment to support himself, that he had a list of names of people who had not paid him for the marijuana, and although it had taken the police a while, they had finally caught him. Such a volunteered statement, not made in response to custodial interrogation, is immune from exclusion under Miranda and its progeny.
Defendant's challenge to the suppression motion is cognizable on this appeal despite the guilty plea under R. 3:5-7(d). The trial judge denied the suppression motion on the basis of exigent circumstances. Defendant's apartment had been under surveillance for some time after controlled purchases of marijuana from him by a police informer. The police had determined to raid the premises and an officer went to police headquarters to obtain a search warrant for defendant and the premises. Defendant was then seen leaving the apartment and was stopped by the officers approximately ...