(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
On August 28, 2002, Newark Police Officers Patrick Cantalupo and Bobby Bullock, riding in an unmarked police car and wearing plainclothes, were patrolling a high-crime area near Lincoln Park. They observed defendant Rahmil O'Neal, and another man standing in front of a restaurant. The man gave O'Neal money in exchange for an unknown object. Cantalupo believed that a drug transaction had taken place and decided to investigate further. The officers parked across the street from O'Neal's location and, within several minutes, Cantalupo and Bullock watched as a second man approached and talked with O'Neal. The man handed O'Neal cash, causing O'Neal to kneel down and reach into his right sock, remove a clear plastic bag containing black-capped vials that the officers suspected were filled with cocaine, and hand a vial to the man. The officers, wearing badges around their necks, moved toward the men and announced their presence. The unknown man was able to get away but O'Neal was not. Cantalupo asked O'Neal what was n his sock and O'Neal responded that it was cocaine. Cantalupo then searched O'Neal and retrieved a clear plastic sandwich-sized bag containing forty-nine black-capped vials of cocaine from the area of O'Neal's right ankle. O'Neal was placed under arrest.
O'Neal was charged with third-degree possession of cocaine, third-degree possession of cocaine with intent to distribute, and third-degree possession of cocaine within 1000 feet of school property. O'Neal filed a motion to suppress the drugs, but later withdrew that motion. On the first day of trial, defense counsel advised the trial court that a hearing was not required to determine the admissibility of O'Neal's statement to the police that he had cocaine in his possession. The following day, defense counsel changed his position and sought a hearing to determine the validity of suppressing O'Neal's incriminating statement made in response to the police's inquiry in respect of the bulge in his right ankle. Defense counsel contended that the statement was obtained from O'Neal without Miranda warnings and should be suppressed. The trial court granted the hearing request.
Cantalupo was the sole witness at the hearing. He testified to his observations of O'Neal distributing drugs on two occasions and what occurred when the officers approached O'Neal. Defense counsel argued that O'Neal was in custody and any statement he made to the officers must be suppressed because the police failed to give O'Neal his Miranda warnings prior to asking him what was in his sock. The trial court denied the suppression motion, finding that a reasonable person would not have considered that he was in custody.
The matter proceeded to trial and at the conclusion, O'Neal was convicted by jury on each count and was sentenced to a four-year term of imprisonment with a three-year period of parole ineligibility. O'Neal appealed his conviction and sentence to the Appellate Division, which held that O'Neal's initial detention was an investigatory stop and that Miranda warnings were not required. The panel found merit to O'Neal's claim of ineffective assistance of counsel relating to defense counsel's failure to file a motion to suppress the cocaine. The matter was remanded for a hearing on the motion to suppress. The appellate panel concluded that if the trial court subsequently granted the suppression motion, the judgment of conviction would be vacated, but if the court denied the motion, O'Neal's conviction would be affirmed. The panel also rejected O'Neal's challenge to his sentence.
The Supreme Court granted O'Neal's petition for certification and the State's cross-petition.
HELD: Based on the observations made by law enforcement officers, there was probable cause to search and arrest
O'Neal. The police officer's question to O'Neal that elicited his response without prior Miranda warnings violated Miranda, but was harmless under the circumstances.
1. Because no warrant was sought for O'Neal's search and arrest, the State bears the burden of showing that the warrantless seizure falls within one of the few exceptions to the warrant requirement. The two exceptions relevant to this case are the investigatory stop, referred to as a Terry stop, and a stop occasioned by probable cause. Here, the police had probable cause to arrest O'Neal. Officers Bullock and Cantalupo, having observed two possible drug transactions, hadreasonable grounds to believe that O'Neal had committed a criminal offense. (Pp. 8-13)
2. It is not the subjective intent or state of mind of the officers but, rather, whether the seizure by the officers was objectively reasonable. Although an officer may testify to his or her subjective intent, the critical inquiry is whether the officer's conduct was objectively reasonable. Based on the totality of circumstances, when viewed objectively, Bullock and Cantalupo had probable cause to search and arrest O'Neal. After the police stopped O'Neal, they could have immediately placed him under arrest, searched him, and seized the bag of cocaine as a search incident to arrest. The fact that the police searched and removed the drugs before placing O'Neal under arrest does not alter the outcome. It is the "right to arrest," rather than the actual arrest that must pre-exist the search. The police had probable cause to arrest O'Neal for a drug offense, and the seizure of the drugs during the search that preceded the arrest was lawful. (Pp. 13-14)
3. In general, Miranda warnings must be given before a suspect's statement made during custodial interrogation is admitted into evidence. Based on the observations of the police, a reasonable police officer would have believed that he had probable cause to arrest O'Neal for a drug transaction and, therefore, would not have permitted him to leave. Similarly, a reasonable person in O'Neal's position, based on the nature of the police encounter, would not have believed that he was free to leave. As such, O'Neal was in custody when, prior to the administration of Miranda warnings, he was asked what was in his sock. As such, O'Neal's reply should have been suppressed. Nonetheless, the failure to suppress O'Neal's admission was harmless beyond a reasonable doubt. The police had probable cause to arrest O'Neal and could have searched him incident to that arrest. The fact that O'Neal told the officers what they were about to discover has no bearing on the legality of the seizure of the cocaine. (Pp. 14-16)
4. This matter presents an opportunity for the Court to provide guidance concerning the safety exception to Miranda. In limited circumstances, based on an objectively reasonable need to protect the police or the public from any immediate danger associated with a weapon, a safety exception to Miranda is appropriate. In such circumstances, the police must frame the question to elicit a response regarding the existence of a weapon. Had the safety exception to Miranda been raised in this case, it would have been rejected because the question asked of O'Neal was not elicited to prompt a response concerning the possible presence of a weapon. (Pp. 16-18)
5. When an ineffective assistance of counsel claim is based on the failure to file a suppression motion, the defendant must establish that the claim is meritorious. Because the police had probable cause to arrest and search O'Neal, there is no merit to his Fourth Amendment claims and, therefore, there is no need to address O'Neal's ineffective assistance of counsel claim. Moreover, there is no merit to O'Neal's excessive sentence argument. (Pp. 18-19)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED for reinstatement of the judgment of conviction and sentence.
JUSTICE RIVERA-SOTO filed a separate CONCURRING opinion, in which he agrees with the result reached by the Court. However, Justice Rivera-Soto would conclude that in respect of O'Neal's motion to suppress the statement he made to the police that a bag of cocaine was in his sock, that statement was made during a Terry stop and was not a product of custodial interrogation and, as such, was not subject to suppression. Further, in respect of the motion to suppress the cocaine seized from him, Justice Rivera-Soto would conclude that if a timely motion to suppress evidence is not made by a defendant in accordance with the Rules of Court, the defendant is deemed to have waived any objection during trial to the admission of the evidence on the ground that such evidence was unlawfully obtained. Moreover, based on the totality of the circumstances, the contraband retrieved from O'Neal was admissible as either the result of a valid "stop-and-frisk" or "protective search," or as the product of a search incident to arrest
CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN, and HOENS join in JUSTICE WALLACE's opinion. JUSTICE RIVERA-SOTO filed a separate concurring opinion.
The opinion of the court was delivered by: Justice Wallace, Jr.
Defendant was convicted of selling cocaine in a school zone. The Appellate Division rejected defendant's claim that the police violated his constitutional rights when they asked him a question without first giving him Miranda*fn1 warnings, but found that defendant established a prima facie claim of ineffective assistance of counsel for defense counsel's failure to file a motion to suppress the cocaine. The panel remanded for a hearing on the Fourth Amendment suppression motion, but held that if the trial court denied the motion, the conviction and sentence would be affirmed. Defendant filed a petition for certification, and the State filed a cross-petition. We granted both petitions. We now hold that, based on the observations made by the law enforcement officers, there was probable cause to search and arrest defendant. We also hold that the police officer's question to defendant that elicited defendant's response without prior Miranda warnings violated Miranda, but was harmless under the circumstances. We reverse and remand to reinstate the judgment of conviction and sentence.
At approximately 7:15 p.m. on August 28, 2002, Newark Police Officers Patrick Cantalupo and Bobby Bullock, riding in an unmarked police car and wearing plainclothes, were patrolling a high-crime area near Lincoln Park. They observed defendant Rahmil O'Neal and another man standing in front of a restaurant. The man gave money to defendant in exchange for an unknown object. Cantalupo believed that a drug transaction had taken place and decided to investigate further. He turned the car around and parked across the street from defendant's location.
Several minutes later, Cantalupo and Bullock watched as a second man approached and engaged in conversation with defendant.
The man handed cash to defendant and defendant knelt down on his left knee. Defendant then reached in his right sock, removed a clear plastic bag containing black-capped vials that the officers suspected were filled with cocaine, and handed a vial to the man. Cantalupo and Bullock immediately exited the car to approach the two men. Although they were in plainclothes, the police officers wore badges around their necks and announced their presence. The unknown male retreated into a doorway adjacent to the restaurant and locked the metal door. When the police officers were unable to open the metal door, they turned their focus to defendant, who was pretending to use a nearby pay phone.
Cantalupo asked defendant, "what's going on?" Defendant responded that he did nothing wrong. Bullock directed Cantalupo to check the bulge around defendant's right ankle. Cantalupo patted the area, felt the bulge, and asked defendant what was in his sock. Defendant admitted it was cocaine. Cantalupo then searched defendant and retrieved a clear plastic sandwich-sized bag containing forty-nine black-capped vials of cocaine from the area of defendant's right ankle. The officer placed defendant under arrest. A more thorough search of defendant revealed thirteen dollars in his pocket.
Defendant was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); and third-degree possession of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7. Defendant filed a motion to suppress the drugs, but later withdrew that motion in a pretrial memorandum that was executed by defendant, his counsel, the assistant prosecutor, and the trial court.
On the first day of trial, defense counsel advised the trial court that a hearing was not required to determine the admissibility of defendant's statement to the police that he had cocaine in his possession. The following day, defense counsel changed his position and requested that the trial court hold a hearing to consider suppressing defendant's incriminating statement made in response to the police's inquiry regarding the bulge on his right ankle. Counsel claimed that the statement was elicited from defendant without Miranda warnings and should be suppressed. The trial court granted the request to hold a hearing.
Cantalupo was the sole witness at the hearing. He testified that he observed defendant distribute drugs on two occasions, and that during the second he saw defendant remove a vial of suspected cocaine from his sock and give it to an unknown man in exchange for money. After he and Bullock approached defendant, Cantalupo explained that Bullock advised him to check the bulge on defendant's right ankle. The following exchange between the prosecutor and Cantalupo then took place:
A: Oh, not knowing if it could be a weapon, it could be anything as far as a Terry frisk goes. I immediately patted the area and I --I asked, you know, what's this?
A: And that's when he responded, a bag of cocaine.
Q: And did you recover the bag?
Q: Okay. And where did the bag turn -- turn on top? Did the bag have anything inside of it?
A: Yes. It was a clear plastic bag, almost like a sandwich bag size with 49 black capped vials of cocaine or I, at the time, suspected cocaine.
On cross-examination, defense counsel asked Cantalupo if, based on the two transactions he observed, probable cause existed to arrest defendant. Cantalupo replied that he thought he "had enough suspicion to approach" defendant. On re-direct, the prosecutor asked Cantalupo if he was able to see what was in the bag when defendant knelt down on his knee. Cantalupo replied, "several black capped vials . . . [s]uspected cocaine." When the prosecutor asked Cantalupo if the cocaine alone gave him probable cause to place defendant under arrest, Cantalupo replied, "[c]orrect." Cantalupo agreed that when he approached defendant "he was basically going to . . . place [defendant] under arrest." On re-cross-examination, Cantalupo acknowledged that he did not read defendant his Miranda rights prior to asking defendant what was in his sock.
Defense counsel argued that defendant was in custody and any statement by defendant must be suppressed because the police failed to provide him with Miranda warnings prior to asking him what was in his sock. Focusing on whether defendant was in custody when he made the incriminating statement, the trial court explained that "the issue still is what a reasonable person, innocent of crime in the defendant's position, would have thought." The trial court found that "a reasonable person, innocent of crime, would not have thought . . . that it was a custodial interrogation, that he was in custody," and therefore Miranda warnings were not required. The trial court denied defendant's motion to suppress his statement.
Before the jury, Cantalupo and Bullock testified consistent with the testimony Cantalupo presented at the Miranda hearing. The State also called Detective Reginald Holloway of the Bureau of Narcotics of the Essex County Sheriff's Department as an expert witness in the area of street-level narcotics. Holloway opined that each of the transactions witnessed by Cantalupo and Bullock was an illegal hand-to-hand narcotics transaction. He also opined that the forty-nine vials of cocaine recovered from defendant "would be possessed for the intent to further distribute for monetary gain[.]"
After the trial court denied defendant's motion for judgment of acquittal, defendant testified on his own behalf. Defendant denied he had any drugs on him when he was arrested and denied that he ever told the police that the bag of cocaine belonged to him. Defendant claimed he was on his way to visit a friend when he stopped to shake hands with a man who was standing in front of a restaurant at 77 Lincoln Park. Defendant said that the man ran into an adjacent building when the police appeared. Defendant surmised that the cocaine the police found must have belonged to the other man because that man ran when the police approached.
The jury convicted defendant on each count. After merger, the trial court sentenced defendant to a four-year custodial term with three years of parole ineligibility. Defendant appealed. In an unpublished decision, the Appellate Division held that defendant's initial detention was an investigatory stop and that Miranda warnings were not required. However, the panel found merit in defendant's claim that he received ineffective assistance of counsel when defense counsel failed to file a motion to suppress the cocaine.*fn2 Because the State never had the opportunity to justify the search, the panel remanded for a hearing on the motion to suppress. The panel concluded that if the trial court subsequently granted defendant's motion to suppress the drugs, the judgment of conviction would be vacated, but if the court denied the motion, defendant's conviction and sentence would be affirmed. The panel also rejected defendant's challenge to his sentence.
Defendant filed a petition for certification, and the State filed a cross-petition. We granted both petitions. 186 N.J. 256 (2006).
Defendant argues that the seizure of the drugs during the pat-down search violated his constitutional rights and that his statement to the police must be suppressed because it was elicited after he was in custody and prior to his receipt of Miranda warnings. As a result of his counsel's failure to seek to suppress the drugs that were allegedly seized in violation of the federal and state constitutions, defendant further contends that he ...