July 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN KOONCE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-01-00005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2009
Before Judges Parrillo and Lihotz.
Defendant Kevin Koonce appeals from an April 21, 2006 Law Division order denying his motion to suppress the statement made by the thirteen-year-old son of his girlfriend to a police officer, which was used to obtain a warrant to search defendant's residence. Additionally, defendant challenges the specificity of the warrant obtained. The search yielded controlled dangerous substances and weapons.
Following a hearing, Judge Cantor denied defendant's motion to suppress. Thereafter, defendant entered a guilty plea to third-degree possession of CDS with intent to distribute (Indictment No. 06-01-00005) and second-degree certain persons not to possess a weapon (Indictment No. 06-01-00007), pursuant to the terms of a plea agreement with the State.*fn1 Defendant was sentenced to five years imprisonment on the third-degree possession of marijuana with intent to distribute conviction and a concurrent five-year flat sentence on the second-degree weapons offense. Defendant's driver's license was suspended for six months and applicable fines and penalties were imposed. This appeal ensued. R. 3:5-7(d).
On appeal defendant argues:
SINCE R.A.'S CONFESSION WAS IN RESPONSE TO INTERROGATION BY CASSIO, AND THE CONFESSION WAS THE BASIS OF THE PROBABLE CAUSE UNDERLYING THE SEARCH WARRANT, THE MOTION JUDGE SHOULD HAVE SUPPRESSED ANY PHYSICAL EVIDENCE THE POLICE RECOVERED WHEN EXECUTING THE SEARCH WARRANT. (PARTIALLY RAISED BELOW)
A. The motion judge applied the wrong standard when deciding whether R.A. had been subjected to the functional equivalent of interrogation.
B. Since Cassio should have known that his words were reasonably likely to prompt an incriminating statement from R.A., he subjected R.A. to the functional equivalent of interrogation.
C. Moreover, Cassio's remark constituted actual interrogation (Not raised below).
1. Both the courts and psychologists have long recognized that children are more susceptible to interrogation techniques than are adults.
2. Police commonly interrogate using a two-prong strategy, that includes both "maximization" and "minimization" techniques to overcome suspects' resistance and enable them to more easily confess to crimes.
3. Cassio's response to R.A.'s claim of innocence consisted of both maximization and minimization interrogation techniques.
4. Since the judge found R.A. confessed in response to Cassio's remarks, and those remarks were either the functional equivalent of, or actual interrogation, the fruits of R.A.'s confession (evidence found in [L.H.]'s home) should have been suppressed.
SINCE THE SEARCH WARRANT FAILED TO PROPERLY SPECIFY THE PLACE TO BE SEARCHED AND THE ITEMS TO BE SEIZED, THE MOTION JUDGE SHOULD HAVE SUPPRESSED ALL EVIDENCE FOUND IN THE SEARCH OF MS. [L.H.]'S HOUSE. U.S. CONST., AMENDS. IV AND XIV; N.J. CONST., ART. 1, ¶7.
We recite the facts as presented in the suppression hearing. On the afternoon of November 17, 2007, Plainfield Police Detective Gary Cassio and two other officers arrived at the Plainfield CVS parking lot. A juvenile informant told police R.A., a thirteen-year-old male, would arrive carrying a controlled dangerous substance intended for sale. The informant had arranged to purchase the marijuana. The police observed a youth, matching R.A.'s description, ride his bicycle into the CVS parking lot, sit under a large pine tree, and make a phone call from his cell phone. As the police approached R.A., they detected the odor of raw marijuana on his clothing. R.A. was told to put his hands on his head and Cassio conducted a pat down. Cassio "found a large, clear, plastic baggie in [R.A.'s] back right pocket containing green vegetation later identified as marijuana." The weight was approximately one ounce.
R.A. was arrested and transported to police headquarters. Once inside police headquarters, R.A. began crying hysterically. In the presence of Officer Peter Papa, Cassio requested R.A.'s "pedigree information," which included his address, birth date, parental contact information, his grade, and the school he attended. Cassio telephoned co-defendant L.H., R.A.'s mother, requesting she come to headquarters because R.A. was in police custody for possession of marijuana.
While waiting for L.H. to arrive, Cassio continued typing his report adding R.A.'s physical description to the identification information. R.A. continued to cry, and Cassio attempted to calm him by offering a soda, pretzels, and candy. R.A. then told Cassio he found the bag of marijuana behind the CVS. Cassio responded "[The] situation right now is not that bad. Everything will work out. Don't make the situation worse by starting to lie." R.A. then stated, "okay, I found the marijuana in my step daddy's closet . . . I only took a little bit." He continued, explaining "there was a key to the kitchen rack on the far left hook" that unlocked defendant's bedroom.
L.H. arrived at the police station ten to fifteen minutes after receiving the call. Cassio told her R.A. was under arrest and requested L.H.'s consent to search her residence, 177 Robert Place, South Plainfield. Defendant was L.H.'s boyfriend and he had a separate bedroom located on the second floor of the home.
L.H. "became combative," began making phone calls, then "just left headquarters[,]" without speaking to R.A. R.A. continued to cry and was "very upset" because he did not get to see his mother. Officer Papa testified R.A. was never Mirandized*fn2 or questioned in his presence.
The police obtained a telephonic warrant to search defendant's second floor bedroom, accessed by the key hanging in the kitchen, to locate two large bags of marijuana. The police commenced the search at approximately 8:10 p.m. They found a bag of marijuana in defendant's closet along with a fully loaded Jennings 9mm handgun, two fully loaded black gun magazines, $190 in currency, multiple birth certificates and other forms of identification belonging to defendant, a photograph of defendant and other bags of suspected marijuana.
The police then searched the downstairs bedroom belonging to L.H. where they found a fully loaded 9mm Glock, a black gun magazine with fifteen rounds of bullets, a full box of ammunition, a half box of hollow point bullets, $500 in currency, two boxes of Ziploc bags, defendant's driver's license, two of his credit cards, L.H.'s passport, a PSE&G bill, and a diamond digital scale.
R.A. testified. He explained the officers began questioning him about the source of the marijuana from the time he arrived at police headquarters before his mother arrived. R.A. confirmed he was never read his Miranda rights. He denied blurting out any statements and only explained he obtained the drugs from defendant's closet when Cassio asked him where the drugs came from, told him to tell the truth, and stated his family would be okay. Additionally, R.A. insisted that he was not told his mother was called or that she needed to be present when the police questioned him.
The trial judge did not find R.A.'s testimony credible, based on inconsistencies between his testimony on direct and cross-examination, but found Cassio to be "very credible." Judge Cantor determined:
It's conceded [R.A.] was in custody. It's conceded he was under fourteen. [T]here was no express questioning going on. And now the question is whether the statement was the functional equivalent of questioning. I do accept the statement by the officer that this is what was said and it was not a series of questions provided to [R.A.]
Analyzing the facts at hand, Judge Cantor found the statement by Cassio to R.A. was "not the equivalent of questioning" and "the statement the police did make did not create such a situation as to violate the rights of this child." See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1692, 1689, 64 L.Ed. 2d 297, 307-08 (1980) ("Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent."). Accordingly, the court denied the motion to suppress R.A.'s statement and the evidence resulting from the search conducted as a result of the statement.
In reviewing a motion to suppress, we only determine whether the trial court's factual findings and legal conclusions are reasonably supported by the credible evidence present in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). "[S]o long as those findings are 'supported by sufficient credible evidence in the record[,]'" we uphold the trial court's decision. State v. Elders, 192 N.J. 224, 243 (2007) (citing Locurto, supra, 157 N.J. at 474); State v. Alvarez, 238 N.J. Super. 560, 562 (App. Div. 1990). Also, we defer to a trial court's factual determinations, "which are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244 (citing Johnson, supra, 42 N.J. at 161).
"[I]t is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment[.]" State v. Emery, 27 N.J. 348, 353 (1958). We reverse only when the determination is "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). Guided by these standards, we address defendant's contentions.
Defendant argues Cassio violated R.A.'s Fifth Amendment right against self-incrimination and, as a result, his statement regarding the source of the marijuana must be suppressed. A defendant's right to avoid self-incrimination in the course of custodial interrogation must be safeguarded. Miranda, supra, 384 U.S. at 511-12, 86 S.Ct. at 1647-48, 16 L.Ed. 2d at 745; State v. Knight, 183 N.J. 449, 462 (2005). Miranda warnings are given with the purpose "to neutralize the pressure inherent in custodial interrogation." State v. Smith, 374 N.J. Super. 425, 433 (App. Div. 2005).
Greater protections are afforded juveniles, particularly those under age fourteen, State v. Presha, 163 N.J. 304, 313 (2000), so that "no child should be interviewed except in the presence of his parents or guardian." In re S.H., 61 N.J. 108, 114-15 (1972). "[W]hen a parent or legal guardian is absent from an interrogation involving a juvenile [under fourteen], any confession resulting from the interrogation should be deemed inadmissible as a matter of law, unless the adult was unwilling to be present or truly unavailable." Presha, supra, 163 N.J. at 315. If the juvenile's parent or legal guardian is unavailable or refuses to accompany the juvenile, "the police must conduct the interrogation with 'the utmost fairness and in accordance with the highest standards of due process and fundamental fairness.'" Id. at 317 (quoting S.H., supra, 61 N.J. at 115).
Following our review of the record, we concur with Judge Cantor's analysis that Cassio's comment did not constitute interrogation. When Cassio explained to a hysterical R.A., "the situation right now is not that bad. Everything will work out. Don't make the situation worse by starting to lie," he did not subject R.A. "to either express questioning or its functional equivalent." Innis, supra, 446 U.S. at 300-01, 100 S.Ct. at 1689, 64 L.Ed. 2d at 307-08. Contrary to defendant's assertion, Cassio's comment did not require a reply and was not a "technique" to prompt a confession. Rather, he was attempting to calm the youth by suggesting it was better R.A. not offer false statements.*fn3
Defendant next argues the telephonic search warrant issued failed to "'particularly' describe 'the place to be searched and the things to be seized.'" State v. Sheehan, 217 N.J. Super. 20, 28 (App. Div. 1987) (quoting U.S. Const. Amend. IV). Here, the warrant judge stated, "I find that there is [p]robable
[c]ause for the issuance of the [s]earch [w]arrant for the premises of 177 Robert Place, South Plainfield, New Jersey and I am going to authorize the issuance of the [s]earch [w]arrant[.]" Defendant suggests the lack of specificity to search the second floor bedroom closet for two bags of marijuana constitutes a fatal flaw, warranting suppression of all evidence seized. See State v. Burnett, 232 N.J. Super. 211, 216 (App. Div. 1989).
A search based on a search warrant is presumed valid, with the burden on the defendant to prove "the warrant was issued without probable cause or that the search was otherwise unreasonable." State v. Evers, 175 N.J. 355, 381 (2003). "[T]he scope of a lawful search is defined by the object of the investigation and the places in which there is probable cause to believe that it may be found." Sheehan, supra, 217 N.J. Super. at 28 (citing State v. Reldan, 100 N.J. 187, 195 (1985)). A probable cause determination "requires nothing more than 'a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Johnson, 171 N.J. 192, 214-15 (2002) (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)).
The municipal court judge who was presented with the search warrant application reviewed Cassio's testimony in which he described in detail the circumstances supporting the warrant request. After describing R.A.'s arrest, Cassio averred R.A. explained the marijuana found in his possession was obtained from two large bags located on the closet floor in a locked upstairs bedroom of the stated residence. The judge asked Cassio "and what are you looking for[,] a search warrant for what?" Cassio responded, "We are looking to obtain  two  large bags of marijuana in the upstairs bedroom[,] which is locked but the key to the bedroom is in the kitchen hanging on a rack so anybody can have access to that bedroom." Further, Cassio described the single family Cape Cod style residence and the other residents in occupancy.
Cassio's testimony was more than facially sufficient to establish probable cause to search the multiply-occupied residence. As we discussed in Sheehan, supra, there is a difference in a multi-unit building and a multiple occupancy dwelling. 217 N.J. Super. at 29. In the latter, there are no separate defined living spaces even though each occupant in the dwelling has his/her own bedroom because there is no independent living unit with its own lock, which is otherwise identifiable as a private area. Ibid. The home affords all residents access to all areas. Ibid. In the community living or multiple-occupancy situation, the courts have generally held "a warrant describing the entire dwelling unit so occupied is valid and will justify a search of the entire premises." Id. at 30 (internal quotations and citations omitted). Thus, the warrant need not describe the specific dwelling unit to be searched, as would be necessary in a multi-unit building. We described the community living exception as follows:
[W]here a significant portion of the premises is used in common and other portions, while ordinarily used by but one person or family, are an integral part of the described premises and are not secured against access by the other occupants, then the showing of probable cause extends to the entire premises. For example, if three persons share an apartment, using a living room, kitchen, bath and hall in common but holding separate bedrooms which are not locked, whichever one of the three is responsible for the described items being in the apartment could have concealed those items anywhere within, including the bedrooms of his cotenants. [Id. at 30 (quoting 2 LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 4.5(b), 219-20).]
Such was the case in the matter at hand. Although defendant's bedroom door was locked, suggesting an expectation of privacy, R.A. gained access by using the key hung in the commonly used kitchen, openly visible to all household residents. The police gained access in the same way. Defendant and all residents had access to the entire premises. The police initially proceeded to search what R.A. identified as defendant's room. After finding CDS, weapons and other evidence of crimes, they proceeded to search the other bedroom principally used by co-defendant.
We conclude probable cause extended to the entire premises of 177 Robert Place and the warrant was valid. The warrant and conduct of the police were entirely proper. Accordingly, Judge Cantor did not err when she denied defendant's motion to suppress.