Defendant's Motion to Suppress was heard on June 15, 1990. Detective Louis Panarese of the Hillside Police Department testified for the State, and defendant Dexter Hall testified on his own behalf. After hearing oral argument and reviewing the parties' briefs, this court denied defendant's motion to suppress and declined to rule on defendant's oral Miranda*fn1 application. The court's opinion was rendered from the bench.
This court undertook sua sponte to reconsider its decision, including the Miranda aspect. Additional written argument was submitted by each side. Upon reconsideration, the June 15 decision is vacated, the motion to suppress the "controlled dangerous substance" seized from defendant is granted and the application to suppress the use of defendant's statement is also granted. The Fifth Amendment Miranda issues are so closely intertwined with the Fourth Amendment search and seizure issues that the June 15 hearing is both necessary and sufficient to resolve all issues. Any question of notice of the Miranda application has been cured by the opportunity for additional briefing addressed specifically to the Miranda issues.
A search warrant was issued for the person and apartment of Carla Foster, a co-defendant whose case was severed from defendant Dexter Hall. The warrant was based upon an affidavit establishing probable cause to believe that Carla Foster was
selling CDS from her apartment. The warrant was not challenged. Two controlled buys by an informant were attested to in the affidavit. The apartment was located "on the edge" of a high crime area known for illegal drug activity. It was also known that Carla Foster lived in that apartment with her teenage daughters, who were enrolled in the local high school.
Before executing the warrant, the police had observed "a few" persons enter and leave the garden apartment building within a brief period. Transcript of June 15, 1990 Motion to Suppress (hereinafter "T.") at 5/3-11. Eight police officers, some in uniform and some in plainclothes, entered the apartment to execute the warrant. They secured four persons inside, including Carla Foster. One of Foster's daughters arrived after the search began. Detective Panarese let her in and patted her down for weapons. No weapons had been found on any of the persons in the apartment. A gun was found in a bedroom by one of the officers; however, Detective Panarese learned of that only after his encounter with defendant Dexter Hall.
Hall, who was unknown to Detective Panarese, arrived during the search with another male who was known to the Detective from a previous drug "situation". When defendant and his companion saw what was happening they tried to leave, but were stopped and brought inside by the Detective. Three other males later arrived and they too were brought inside.
Detective Panarese immediately patted down the defendant and his companion. The pat-down revealed no weapons (or other contraband) on defendant's companion and he was told he could leave. As Detective Panarese was patting down the defendant, he asked the defendant if he had "anything" on him. Defendant answered that he had some, but only "for personal use." At the same time, he produced from his pocket a dollar bill containing a small amount of cocaine. He was promptly arrested for possession of CDS.