On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1236.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 11, 2010
Before Judges Cuff, Payne and C.L. Miniman.
Defendant Taurean Nixon pled guilty to first-degree robbery, contrary to N.J.S.A. 2C:15-1, and second-degree burglary, contrary to N.J.S.A. 2C:18-2, after his motions to suppress a lineup, a cell phone seized from defendant, and his videotaped confession were denied. He was sentenced to a fifteen-year term of imprisonment on the robbery conviction and a concurrent five-year term on the burglary conviction. Defendant now appeals the denial of his suppression and Wade*fn1 motions and the sentence imposed. We affirm.
The following facts were developed at the suppression motions. On July 8, 2005, Detective Sergeant Michael Kilker investigated a home invasion and robbery in Metuchen, which had been reported to the police at 11:12 a.m. Upon arriving at the home, he found Sergeant Ayotte and Corporal Anthony Carro already at the scene. Carro had found the victim, Frank McKendrick, on the porch covered in blood. The victim reported that he was in bed when two perpetrators entered into his bedroom. The perpetrators attacked him, stabbed him, tied him up, and placed him in a closet. The victim described the perpetrators as two black males; slight to medium build; close-cropped hair; five feet, eight inches, to six feet tall; one wearing a dark-colored shirt and the other a plaid or striped shirt.
Carro observed a disabled vehicle on the scene, which the perpetrators had told the victim had broken down. Carro surmised the perpetrators had left on foot. He broadcast the description of the perpetrators and left the scene to search for them. He checked the train and bus stations and drove around the area near the scene of the crime. In doing so, he ran into two State Troopers, who asked what he was doing. He told them he was searching for two perpetrators and gave them the descriptions given by the victim.
When Kilker arrived, the victim was in the upstairs bathroom, still covered in blood. Kilker asked the victim to go downstairs to await the First Aid Squad and the paramedics. Kilker then conferred with the Chief of Police, who had also responded to the scene. The Chief instructed him to contact Detective David Irizarry and Patrolman Connolly*fn2 and tell them to respond to the scene. Connolly photographed the scene.
The State Troopers observed two individuals matching the description given by the victim walking on Route 27 in the vicinity of Grove Avenue. As the troopers passed them, the two individuals split up for a while and then continued to walk southbound on Grove Avenue. The officers stopped them in the area of Grove Avenue and East Chestnut Street. A steady rain was falling, but the suspects had no rain gear. When asked from where they had come, the individuals responded they had been visiting a friend on Blueberry Road or Avenue in Metuchen.
There is no such street. Both individuals appeared extremely nervous and would not maintain eye contact. Defendant was wearing a red shirt with distinctive blue patches. The suspects attempted to divert further questioning by interrupting to say that they were not sure how to get to Edison. The troopers asked them for identification and detained them until the Metuchen police arrived.
Carro received a call from the troopers, who reported they had two individuals that matched the description he gave them, and he responded to their location. Ayotte and Patrolman Mosko had already arrived there at 11:45 a.m., and Ayotte performed a pat-down search of the suspects. No weapon was recovered from either of them. However, the victim's checking-account statement was recovered from co-defendant Christopher Dease. The police arrested the suspects, handcuffed them, and transported them to police headquarters. Once there, they performed an inventory search and recovered the victim's driver's license, an ATM card, and a business card with the victim's social security number on the reverse side from co-defendant Dease. The victim's cell phone was recovered from defendant.
After the Chief of Police said he would take control of the scene, Kilker returned to headquarters. At headquarters, the two suspects were separated, and Kilker interviewed defendant in the presence of Carro. First, Kilker advised defendant of his Miranda*fn3 rights, and defendant signed the Miranda rights card at 12:29 p.m. Then, Kilker conducted a preliminary interview during which he outlined the events that had taken place at the victim's home. He asked defendant if he was willing to give a taped interview and he agreed. As reflected on the tape recording and the simultaneous videotape, which began at 1:24 p.m., at that time Kilker again advised defendant of his Miranda rights.*fn4
Defendant argued at the hearing that there was no probable cause to arrest or search him. This was so because there was no description that one of the individuals involved was six feet tall wearing a red shirt with distinctive blue patches. He contended that the search of Dease was illegal and the fruit of that search resulted in defendant's arrest. He urged that the items seized from defendant and Dease, the photographic identification of defendant, and defendant's statement should all be suppressed as the fruit of the illegal search of Dease and the subsequent illegal arrest of defendant.
The State responded that there was probable cause to arrest because the victim gave a description of two black males, with slim to medium builds, and short-cropped hair. Carro knew they were on foot because their car was disabled and abandoned at the scene of the crime. The individuals were found within a mile of the crime scene, and the incriminating bank statement was taken from Dease, not defendant. The State urged that a dark-colored shirt and a red shirt with blue patches could be the same thing, everything else in the description matched, and the difference between six feet and six feet two inches was very close for an approximation. Defendant and Dease were soaking ...