Before Judges Havey, Skillman and P.g. Levy.
The opinion of the court was delivered by: P.g. Levy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Essex County.
In this interlocutory appeal, we consider whether a person is entitled to the immunity attendant to compliance with N.J.S.A. 2C:35-10c, pursuant to State v. Patton, 133 N.J. 389 (1993), when he responds to questions from the police and admits to possession of a controlled dangerous substance(CDS). We conclude that defendant is not entitled to that immunity under the circumstances of this case, because the revelation of the CDS was compelled by a confrontation with the police rather than triggered by defendant's voluntary action.
On October 28, 1996, Officer Steinecke and Investigator Cody of the Amtrak Police were conducting an investigation of drug trafficking by people traveling by railroad from Florida to New York. When the two officers reviewed the daily travel manifest for the Amtrak trip from Fort Lauderdale to Newark, they noticed that defendant, James Gredder, had purchased his ticket, with cash, just fifteen to twenty minutes before departure. The officers also noticed that defendant had listed his telephone with a Miami area code rather than the code for Fort Lauderdale.
Steinecke called the number provided and spoke to a friend of the defendant, Karem. Karem stated that defendant often came to Florida and on those occasions he stayed with Karem. Karem believed defendant was still Florida, thus leading Steinecke to believe that defendant had left hastily.
The officers decided to go to Newark to meet the train. They knew that defendant was in a sleeper compartment in the rear car. Defendant was the only person who exited from that train car, and as he approached the police officers, Cody identified himself, displaying his badge. Defendant agreed to talk to them. He told the officers that he had been in Florida "a couple of days or a week" visiting a sick uncle, and he did not know if he was going to return. Contrary to what his friend had told the officers, defendant said that he did not travel to Florida "that often."
Cody then informed the defendant that, "we [have] a big problem with drugs being transported on trains," and he asked defendant if they could look in his luggage. According to Cody's report, *fn1 defendant replied, "Yes, go ahead, but I got some weed in there, but that's all I got." Steinecke asked him to sign a consent form to allow them to search his luggage; defendant read and signed the form. When Steinecke searched the two bags, he found a small amount of marijuana in the first, and in the second, underneath layers of folded clothing, he found two brick-shaped packages, the size of paperback books, wrapped in newspaper and clear plastic tape. Based on his experience, he believed the packages contained CDS, and he asked defendant about them. Defendant replied: "Oh man, I'm fucked," and he began to cry. When the officer repeated the question, defendant said "Its coke [cocaine]." Steinecke opened a corner of one of the packages and observed a white, powdery substance he believed to be cocaine, and he confirmed that belief later by field test.
Defendant was charged by indictment with third-degree possession of a controlled dangerous substance (cocaine), contrary to N.J.S.A. 2C:35-10a(1), and first-degree possession with intent to distribute a controlled dangerous substance (cocaine), contrary to N.J.S.A. 2C:35-5b(1). He filed a motion to suppress the evidence (i.e., the marijuana and the cocaine) taken from him during the course of the warrantless search, but after an evidentiary hearing, the motion was denied. Thereafter, defendant filed a motion to dismiss the indictment based on transactional immunity for the first count and use and derivative-use immunity for the second count, *fn2 pursuant to N.J.S.A. 2C:35-10c and Patton; that motion was also denied. We granted leave to appeal the denial of the motion to dismiss the indictment.
The pertinent part of N.J.S.A. 2C:35-10c states:
"Any person who knowingly obtains or possesses a controlled dangerous substance ... in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense." In Patton, the Court reconciled the purpose of that statute with the privilege against self-incrimination. To accomplish that, it held that N.J.S.A. 2C:35-10c provides "transactional immunity for section 10 offenses to persons complying with its provisions, and use and derivative-use immunity in respect to other offenses." 133 N.J. at 401-02. The crux of that decision, however, was not concerned with whether the defendant "voluntarily delivered" the CDS to the police. *fn3 Thus, we take up where Patton left off, and consider the application of the phrase "voluntarily delivered."
Defendant argues that "voluntarily delivered" should be construed to include the common situation where a person, not in custody, is being questioned by the police, and during the course of the interrogation admits to possession of marijuana and indicates where that marijuana is. The State argues that "voluntary" should be construed to include only those situations where a person is not already being investigated by the police and decides, in the absence of the pressures inherent in questioning or investigation, to take the CDS to the police.
"Voluntary" has been aptly defined to mean "[d]ecided or accomplished by personal choice or impulse; not required, coerced, or prompted by another person or thing." Black's Law Dictionary 657 (Pocket Edition 1996). The impetus for surrendering the CDS should come from the possessor, and capitulation to the requests of the police does not amount to a voluntary delivery under the statute. The earlier denial of the suppression motion was based on defendant's voluntary consent to the search after being confronted and questioned by the police, and not any alleged voluntary delivery of the drugs. The consent constituted a waiver of any related fourth amendment search ...