On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Before Judges Brody, Long and Levy.
The opinion of the court was delivered by
The crimes with which defendant is charged in a multi-count indictment include bribery and misconduct in office. He is the Clerk of Camden County. The matter is before us to review an interlocutory order suppressing a ten-minute audiotape recording of two state police investigators questioning defendant in the living room of his home. Defendant did not know that the questioning was being taped. Five state investigators had just completed a two-hour warranted search of the house. The trial Judge concluded from his findings that the questioning was custodial and therefore defendant's answers were inadmissible because he had not been warned fully of his Miranda rights.*fn1 We do not disagree with the Judge's findings. But the relevant findings point to only one possible Conclusion: the questioning was not custodial. We therefore must reverse.
The investigators arrived at defendant's home on a Saturday morning at 10:30, shortly after a visitor had left. The visitor was George Nicholas, who was co-operating in the police investigation. In the course of his visit Nicholas gave defendant $5,000. Nicholas wore a hidden tape recorder on his person that, it is suggested, recorded evidence that the payment was a bribe. The audiotape that defendant seeks to suppress contains his statement to the police that he received the $5,000 as a political campaign contribution.
"Miranda does not apply to noncustodial interrogations." State v. Zucconi, 50 N.J. 361, 363, 235 A.2d 193 (1967). An interrogation is noncustodial unless the suspect has "reason to believe that he has been deprived of his freedom." State v. Lacaillade, 266 N.J. Super. 522, 527, 630 A.2d 328 (App. Div. 1993) (Miranda warnings not required where police officer, knowing he was a suspect, was questioned without the threat of restraint at police headquarters where he worked). In finding that the brief questioning here was custodial the trial Judge confused an intrusion on defendant's privacy, the hallmark of a search, with whether defendant reasonably perceived that he was deprived of his freedom, the hallmark of being in police custody. The confusion may have occurred because as defendant freely moved about the house an investigator kept him under observation to be sure that he would not remove or destroy evidence. The fact that an investigator kept tabs on defendant as he performed domestic chores, took a shower and changed his clothes did not give him reason to believe he was in police custody.
Denial of a similar motion to suppress was affirmed in United States v. Sutera, 933 F.2d 641 (8th Cir. 1991). Police officers there questioned the defendant in his bedroom for an hour while they spent three and one-half hours executing a warrant to search his apartment and his car. The court described the circumstances of the search as follows:
On December 11, 1990, Agent King, Agent Burns, and four other law enforcement officers went to Sutera's apartment to execute a search warrant for the residence, Sutera's automobile, and the actual persons of Sutera and Richard Turner. After searching Sutera, the officers asked him if he was willing to talk to them about his gambling business. Sutera was informed that he was not under arrest, that he did not have to answer questions, and that he could leave at any time. Sutera indicated that he was willing to talk to the officers.
The officers conducted the interview in the bedroom because there were only three rooms in the apartment, and Richard Turner, a potential codefendant, was in the kitchen. The door to the bedroom remained open throughout the interview. Sutera was free to move about the apartment during the execution of the search warrants and the interview, with the limitation that he not interfere with the officers' search or answer the telephone.
Here, the trial Judge's findings are similar to those in Sutera, and they do not support his Conclusion that defendant reasonably believed he was in custody. The Judge found that when the investigators first arrived at defendant's home, they advised him that "he was not under arrest at that time, nor would he be arrested that day." In fact defendant was not arrested before being indicted eight months later.
The Judge expressly found that Investigator Alan Beck was "a credible witness." Most of the time it was Beck who followed defendant around the house. Beck had retired from law enforcement before testifying at the Miranda hearing. Deputy Chief Tom Boney was in charge of the search operation and he was one of the two investigators whose questioning is captured on the suppressed tape. Investigator Beck testified as follows as to what Boney told defendant when the investigators first arrived:
At that point Mr. Boney was explaining to Mr. Keating why we were there, to execute a search warrant. He explained that Mr. Keating wasn't under arrest. That he wasn't going to be arrested that day. He explained that he could have an attorney present. He could ...