On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-04-00278.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2008
Before Judges Sabatino and Alvarez.
Defendant, Ormond A. Davis, appeals the denial of a motion to suppress evidence seized as a result of the warrantless search of his automobile conducted immediately after his arrest. Defendant entered a guilty plea to fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12), and subsequent to the denial of his motion, was sentenced to eighteen months probation. For the reasons that follow, we reverse.
On February 18, 2005, at approximately 8:30 p.m., Officer David Canica of the North Plainfield Police Department observed defendant's vehicle being operated without headlights, and stopped him. When the officer ran a credentials check, he discovered that defendant had an outstanding $120 motor vehicle warrant in Elizabeth. He instructed defendant to step to the rear of the vehicle, and cuffed him. Prior to patting him down, the officer asked if there was anything he "should know about." The officer testified at the motion hearing that he asked the question for his own safety, as "several times," in past arrest scenarios, he had come close to "getting pricked by needles." The officer said he thought "maybe [defendant] would be forthcoming if he did have something on him."
According to the officer, defendant responded, "no, not on me," looked back at his car, and "kind of sighed." The officer then asked defendant if "there's something in the car," and defendant responded by saying, "there may be something under the seat you might not want to look at." The officer walked over to the car and, beneath the driver's seat, found a clear plastic sandwich bag that contained twenty-four smaller baggies of marijuana. Defendant was then placed in the back seat of the patrol car. Canica drove defendant's car to a legal parking spot across the street and at the station, defendant was released on the $120 bail called for by the Elizabeth warrant.
Defendant was asked the crucial question while obviously in custody, standing handcuffed to the rear of a police vehicle. It is well-established that prior to custodial interrogation, a suspect must be informed of his right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). In order to be able to make an intelligent choice as to whether to exercise the right to remain silent, a suspect must know that anything said can be used against him in court. State v. Burno-Taylor, ____ N.J. Super. ____, ____ (2008) (slip op. at 4). Miranda warnings should have been given to defendant prior to the inquiry made here.
Our Court in State v. O'Neal, 190 N.J. 601, 618 (2007), recently reaffirmed the limited authority of officers to ask questions, prior to administering Miranda warnings, based on the need to protect police or the public from the possible presence of a weapon. Answers to such questions, when there is some objectively reasonable emergent circumstance which requires immediate information, are admissible under the doctrine of the "safety exception to Miranda." Id. at 617. The questions must be particularly framed so as "to elicit a response concerning the possible presence of a weapon." Id. 618. Even where the doctrine expands to include the presence of needles potentially dangerous to police officers, the questions must still be "narrowly tailored to prompt a response . . . aimed at protecting the safety of police." Ibid. The vague inquiry here was framed so as to elicit potentially inculpatory information, not just information about the possible presence of needles in defendant's pockets.
In this instance, police had no particular reason to fear the presence of needles or weapons. It is apparent from the relaxed interactions between defendant and the arresting officer that the officer was not concerned about the safety of the public or himself, insofar as weapons were concerned. There is no objective basis in the record that we can discern for the officer's concern that defendant may have had needles in his pockets either. Nothing about the place of arrest, circumstances of the arrest, defendant's demeanor, anything said, or any other objective indicia add up to an objectively reasonable basis for the inquiry.
Because we cannot discern an objectively reasonable need to protect either police or the public from any immediate danger, we cannot sanction the admission of defendant's answer, or the admission of evidence seized as a result. Since the question so clearly violated Miranda's proscription, defendant's response, and everything that resulted from it, including the discovery of the marijuana located beneath the driver's seat, must be suppressed. See State v. Stephenson, 350 N.J. Super. 517, 530 (App. Div. 2002).
Defendant's conviction is hereby vacated, and the order denying his motion to suppress evidence is reversed. The matter is remanded for further proceedings. We do not retain jurisdiction.
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