On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-12-4328.
Before Judges Conley, Carchman and Parrillo.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
During the early morning hours of August 10, 1998, police found the lifeless body of Gloria Deen Hoke in an alley in Camden. In the early evening of the same day, the Camden police, acting on an anonymous tip of a"man with a gun," stopped, searched and arrested defendant Ronald Patton on a weapons offense and took him to police headquarters. During the ensuing nineteen hours between the time of defendant's arrest and the commencement of interrogation, law enforcement officers fabricated an account of Hoke's murder. A law enforcement officer, posing as an eyewitness, was"interviewed" on an audiotape that was later played to defendant who, despite his early denials of involvement, upon hearing the audiotape, confessed to the murder. The fabricated audiotape, identified as such, was later introduced into evidence at trial, and defendant was convicted of murder and related offenses. His motion to suppress the confession and objection to the use of the fictitious audiotape at trial were denied as was his challenge to the initial arrest and search.
We reverse. We hold that law enforcement officers may not fabricate evidence to prompt a confession and later introduce that police-fabricated evidence at trial to support the voluntariness of the confession. We reverse the denial of the motion to suppress and remand for a new trial. We also order on remand that the judge reconsider the initial stop and search of defendant in light of the United States Supreme Court's decision in Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).
We expand our discussion of the facts adduced at both the motion to suppress and trial. After discovering Hoke's body, the police determined that she had been shot nine times including seven times in the back. Later the same day, at approximately 4:00 p.m., the victim's brother informed police that defendant, who the brother knew by the street name of "Physical," and the victim had argued the day before. Following information received from an allegedly anonymous tip, at approximately 8:00 p.m., the police arrested defendant.*fn1
The police did not begin questioning defendant immediately. During the nineteen-hour period between defendant's arrest and the commencement of the interrogation on August 11, 1998, the police fabricated an audiotape depicting a fictitious eyewitness to the crime"[t]o let the person we were going to interview think there was an individual who saw him do what we think he did." Investigator Frank Falco of the Camden County Prosecutor's Office described the process of creating the audiotape:
A. We made up a tape, myself and Sergeant Harry Glemser of the homicide unit and Homicide Investigator Aida Marcial [of the Camden County Prosecutor's Office] where Aida Marcial and myself interrogated Sergeant Glemser who we referred to as PO 150, or Informant 150, and we basically faked a tape of what we wanted to look like a witness to the incident.
Q: So Investigator Glemser was posing --
Q: Sergeant Glemser was posing as a witness to the homicide of Gloria Hoke?
Q: And the information that Sergeant Glemser would have related on the tape, where did that come from?
A: We had -- I think [Detective] Monica [Davenport of the Camden Police Department] had told me and [Investigator] Willie [Mahan of the Camden County Prosecutor's Office] the day before they had some information from the brother of the victim.
Q: Okay. So the information that Sergeant Glemser relayed would have been information that had been developed during the investigation?
At approximately 3:00 p.m. on August 11, the police began interrogating defendant as to the murder. Defendant signed a Miranda*fn2 card at 3:10 p.m., and when the police informed defendant that they wanted to speak to him about Hoke's murder, defendant initially replied that he was at his girlfriend's house on the night of the murder. The interrogators then told defendant that they had an eyewitness to the murder, and again defendant offered no response. After ten minutes of this"pre interview," the police indicated that they would play an audiotape of the eyewitness for defendant and did so. These are the relevant portions of the audiotape:*fn3
A.M.: Today is Tuesday, August the 10th, 1998.
The time now is 11:15 a.m. I am Senior Investigator Aida Marcial. I'm with the Camden County Prosecutor's Office, Homicide Unit. With me today is Investigator Frank Falco, also from the Camden City, excuse me, Camden County Prosecutor's Office, Homicide Unit. Ah... Currently we're at the Camden County Prosecutor's Office about to obtain a second tape[d] statement from Confidential Source 150,... for the purpose of this tape we will oblit [sic] his ah... name and vital information. For the purpose of this tape we'll just ah... refer to you as Confidential Informant.... Is that alright with you?
F.F.: Okay, we're gonna [sic] refer to Camden Case Number 98-8-6-168. Ah... is it true, Confidential Informant 150 [that] in the pre-interview you gave us some information where you... you knew who was involved in this homicide?
F.F.: Okay, the homicide occurred on August 6, 1998, at approximately 1:30 a.m. Are you aware of that?
A: Yes... I guess about 1:30, that sounds right.
F.F.: Okay, did you have occasion to be in that area or are you familiar with that area around Sixth and Bailey?
F.F.: Alright, now you're here on charges, ah... you were picked up at a drug ah... scoop ah... earlier today and you were charged with distribution of CDS, is that correct?
F.F.: Okay, and we spoke about the fact that if you were gonna [sic] cooperate with us and give us some truthful information, that we could see what we would maybe do for you if the information turned out to be correct,... is that correct?
A: Yeah... you said you would drop the charges on me if... if my information was right.
F.F.: Alright, we didn't say we would drop the charges, we said we'll see what we could do.... We didn't make any promises, is that correct?
F.F.: Okay... when you were picked up earlier today... you were brought into our office and ah... we started talking to [you] about this particular homicide that occurred up there ah... two nights ago... ah... you said you had some information that you could offer us, is that true?
F.F.: Alright, ah... there was an individual up there that we suspect of possibly being the shooter in this particular homicide ah... is it true that you gave us a name of somebody who you described as being the shooter?
F.F.: And how did you say that you knew that person?
A: Well, I know the girl Gloria ah... pretty good...
A: And I wonder if she...
F.F.: Now... okay, go [a]head.
A: Off... off and on, I guess maybe couple years ah... you [sic] they call her Genie...
A: And you... you... alright, know, you know I'm out that [sic] there sell[ing] drugs out there once and a while...
A: Ah... she'll be you know coming up to me... they coming [sic] up a few other fellows and you know want[ing to] get a freebee... you know what I mean... to ah... So I was talking to her earlier that night and she told me that she had an argument with this dude they call Physical... ah... Ron I think is his first name.... And she asked me for a piece. I gave her one, and then later on...
F.F.: Okay, excuse [me], when you say "piece," what do you mean by a piece?
A: Well, I gave her a little... a little bit of powder...
A: But I didn't charge her for it though...
A: She's like, that's the way she is, you know, she just tries to come up and ah... tries to sponge a piece off... off different people, you know.
F.F.: Has she sponged drugs off you before?
F.F.: Okay... ah... people out there have [had] problems with her doing that before?
A: Ah... ah... I don't know if they have problems with her, but you know, she's like [a] pain in the ass type... you know... sometimes they just give it to her to just to get rid of her you know what I mean...
F.F.: Okay, the information on the person that might have shot her ah... what were you helps [sic] us with in that area?
A: Well I seen [sic] when she came busting out of the crib, you know what I mean... running down the alley and shit... and I heard all these shots and ah... when I looked up you know I see this dude chasing behind shootin' at her and I, you know, I know who the dude is I've seen... I've seen him around out that way and...
A.M.: And how many shots you... you think you heard?
A: Ssshhh... seven... eight... nine... something like that.
A.M.: So it was a lot of shots?
F.F.: This guy that you said that you seen [sic] out there before, can you describe him for us?
A: That's the... that's the dude ... that's... that's the dude... yeah...
F.F.: Okay. I'm... Let the record reflect that I'm showing ah... Confidential Informant one picture... ah... picture of Ronald Patton... Okay... you...
F.F.: Said you know him from the streets...
A: Yeah, but I didn't know his last name,... but that's the dude....
F.F.: Alright, where did you know him as [sic]?
A: I known [sic] him as Ron or sometimes they call him Physical.
A.M.: How tall would you say he is?
A: He's... he's about five-foot seven... five-foot-six, something like that.
A.M.: How [much] do you think he weighs?
A: Oh probably about, I don't know, 170... 160... something...
A.M.: Is he Black, Spanish, White?...
F.F.: Okay, you also said earlier in a conversation... or in the pre interview rather, that you knew his girlfriend or girl that he had ...