On certification to the Superior Court, Appellate Division.
(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).
The Court considers whether the circumstances of this appeal involved the "question-first, warn-later" interrogation procedure that requires application of the framework described in State v. O'Neill, 193 N.J. 148 (2007).
Moorestown police were investigating several robberies when a Dunkin' Donuts in nearby Maple Shade was robbed. Moorestown Detective Gunning told Maple Shade Detective Mikulski about their investigations; that the Moorestown robber was seen in a blue truck, like the Maple Shade robber; that they had identified defendant, Detective Gunning's nephew, as a suspect; and that he was a heroin addict. Later that day, Patrolman Giannini responded to a call reporting someone in a blue truck shooting up drugs behind a Maple Shade pizzeria. He stopped defendant in a blue truck, arrested him on outstanding warrants, and advised him of his rights. It was later revealed, however, that the Miranda warnings were insufficient.
Defendant was transported to the station, where Detective Mikulski questioned him. He did not re-administer Miranda warnings, believing defendant was already properly advised of his rights. During the first interview, Detective Mikulski spent much of the time talking, explaining what police knew about the robberies. When defendant mentioned that his uncle had told him he should have an attorney whenever speaking to police, Detective Mikulski considered the remark as an assertion of the right to counsel and told defendant he had to end the interview. Defendant said he still wanted to talk, but the detective refused, advising him the interview could not proceed unless he had counsel. Defendant testified, on the other hand, that he asked for a lawyer, but the detective continued questioning him.
Defendant then requested a cigarette break. Detective Mikulski asked Detective Gillan, the only officer who smoked, to accompany defendant outside. Detective Mikulski knew that Detective Gillan and defendant were acquainted, but he denied that their relationship played a role in his decision to ask Detective Gillan to go with defendant. According to Detective Mikulski, when defendant returned from his cigarette break, he again expressed a desire to talk. Full and appropriate Miranda warnings were then administered, and defendant formally waived his rights and confessed. Defendant testified, however, that he confessed because he felt coerced. He stated that during the cigarette break, Detective Gillan discussed the investigation and told him that police found his fingerprints at the scene and witnesses had identified him and his truck. According to defendant, Detective Gillan had helped him before, said he would help him out again, and urged him to confess.
The trial judge considered the testimony, videotape of the arrest, and tape recording of the confession and found the detectives' testimony credible. The judge rejected defendant's arguments that he did not understand his rights and was pressured to confess. The court found that defendant repeatedly tried to speak with the detectives after the questioning had stopped, and that he consented to speak after being fully advised of his rights. The trial court denied the motion to suppress. Defendant entered a conditional guilty plea and appealed. The Appellate Division remanded the matter for the presentation of additional evidence, and instructed the trial court to address whether defendant was subjected to interrogation or it functional equivalent before being advised of his rights and whether police failed to honor his rights during the cigarette break.
During the hearing following the remand, Detective Mikulski reiterated that he did not continue to question defendant after he referred to his uncle's advice about an attorney. The detective acknowledged that, during the first interview, he tried to elicit responses from defendant about the robberies and made it clear to defendant that he was a "person of interest." Detective Gillan testified that he was acquainted with defendant's father and knew defendant "from around town," that defendant had expressed sadness about disappointing his parents by his drug addiction, and that he told defendant his parents "would come around" if he got cleaned up. Detective Gillan denied discussing the investigation with defendant or urging him to confess.
The trial court again denied the motion to suppress. It determined that defendant's assertion of the right to counsel was honored and that he later waived his rights. The court found no intentionally coercive practice by law enforcement because Detective Mikulski believed defendant was properly advised of his Miranda rights when he was arrested; police stopped questioning when he invoked his right to counsel; and he made no incriminating statements during the first interview. The court rejected defendant's self-serving testimony about the break, found that what occurred was not an interrogation, and concluded that his expressed desire before and after the break to continue talking showed that he knowingly, voluntarily, and intelligently waived his rights. The Appellate Division disagreed, reversed the order denying the suppression motion, vacated the conviction and guilty plea, and remanded for trial. The Supreme Court granted the State's petition for certification. 201 N.J. 145 (2009).
HELD: State v. O'Neill does not apply in this case, where police did not use a "question-first, warn-later" approach and defendant said nothing relevant to the crimes being investigated before receiving proper warnings. Under the familiar totality of the circumstances test, defendant's waiver of his rights was knowing, voluntary, and intelligent.
1. State v. O'Neill was based on federal decisions addressing whether a confession made after Miranda warnings could be admissible when the suspect was previously subjected to unwarned questioning. In Oregon v. Elstad, the United States Supreme Court held that where police did not use coercion or improper tactics and their failure to provide warnings before a defendant made incriminating statements was a mistake rather than deliberate tactic, the defendant's later confession that followed proper warnings was voluntary. In Missouri v. Seibert, the Court held that where police had a policy of eliciting a confession before providing warnings, a later warning could not function effectively because a suspect would not believe he had a genuine right to remain silent after just having confessed. In O'Neill, the Court identified five factors to consider in deciding whether a "question-first, warn-later" interrogation is coercive: (1) extent of questioning and nature of admissions made before defendant was informed of his rights; (2) proximity in time and place between pre- and post-warning questioning; (3) whether the same officers conducted both interrogations; (4) whether defendant was informed that his pre-warning statements could not be used against him; and (5) degree to which the post-warning questioning was a continuation of pre-warning questioning. In O'Neill, the Court held that the Miranda warnings could not have been effective because defendant was warned only after he provided police with motive, opportunity, and personal involvement in the crime, so the defendant probably believed he had already crossed a psychological bridge from which there was no turning back before he was properly warned. When warning are given only after a custodial interrogation produces incriminating statements, the admissibility of post-warning statements turns on whether the warnings effectively provided defendant the ability to exercise his privilege against self-incrimination. (pp. 20-25)
2. Application of the O'Neill framework is not required in this case. First, police did not use a "question-first, warn-later" approach; rather, defendant was questioned by a detective with no reason to believe that warnings had not been properly given. Second, in the first interview, defendant said nothing relevant to the robberies, so there was no risk that he was psychologically worn down because he had already made incriminating statements. Thus, the issue whether defendant's waiver of rights was knowing, voluntary, and intelligent should be evaluated under the familiar totality of the circumstances framework. (pp. 25-27)
3. The Appellate Division panel used its own analysis of the factual record to both decide credibility anew and conclude that the first interview had continued when it should have ceased, and therefore was coercive. The trial court's thorough, comprehensive credibility determinations are entitled to deference and its findings of fact must be sustained because they are supported by ample evidence in the record. The appellate panel's contrary conclusions are not. (pp. 27-30)
4. Under the totality of the circumstances, defendant's confession was knowing, voluntary, and intelligent. The trial court's credibility findings were based on specific references to objective evidence that demonstrated that defendant's factual assertions were false, and on the court's determination that the detectives' testimony was believable. Defendant was not the victim of the troubling "question-first, warn-later" technique, and there is no ground on which to suppress his confession. (pp. 30-31) The judgment of the Appellate Division is REVERSED. The order of the trial court denying defendant's motion to suppress and defendant's conviction are REINSTATED.
JUSTICE ALBIN, CONCURRING, joined by JUSTICES LONG and WALLACE, agrees that the Appellate Division exceeded its power of review by substituting its own fact findings, but would apply the O'Neill methodology, under which factor number one, the "nature of any admissions made by defendant before being informed of his Miranda rights," is decisive and outweighs all other factors, leading to the conclusion that the record supports the trial court's finding that defendant knowingly, voluntarily, and intelligently waived his rights after he was given proper warnings.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and RIVERA-SOTO join in JUSTICE HOENS's opinion. JUSTICE ALBIN has filed a separate, concurring opinion in which JUSTICES LONG and WALLACE join.
The opinion of the court was delivered by: Justice Hoens
Defendant Brian Yohnnson was arrested on outstanding warrants, advised of his rights, and brought to the police station where detectives questioned him about a string of unsolved burglaries. Unbeknownst to those detectives, the arresting officer's recitation to defendant, advising him of his rights, was neither correct nor complete. Because the detectives believed that the arresting officer had properly warned defendant about his rights, they did not re-administer those warnings to him at the police station. Instead, they conducted an interview during which defendant made no incriminating statements. They ended that interview when defendant referred to a family member's advice to him to ask for a lawyer if he were ever arrested. When the detectives then told defendant that they were required to stop questioning him, he attempted to restart the interview without an attorney. The detectives refused to proceed, but allowed him, at his request, to step outside for a cigarette.
During that brief cigarette break, defendant was accompanied by the only available officer who was a smoker. Defendant recognized that officer as someone who he recalled had helped him before and who knew his father, and he began to lament the fact that he had disappointed his parents by using drugs. The officer commented to him that his parents would come around if he got clean. Immediately after returning from the cigarette break, defendant reiterated his request to speak with the detectives. At that point, defendant was fully advised of his rights, following which he formally waived them and confessed.
The Appellate Division, in an unpublished decision, reasoned that those facts represented a variation of the "question-first, warn-later" interrogation procedure that this Court addressed in State v. O'Neill, 193 N.J. 148 (2007). Applying the five-factor test that we developed in O'Neill for courts to use when a suspect's statements were obtained by using the "question-first, warn-later" technique, the Appellate Division concluded that defendant's confession should have been suppressed.
Because the circumstances revealed in this record are far different from the "question-first, warn-later" technique considered in O'Neill, and because there is sufficient credible evidence to support the factual findings and credibility determinations made by the trial court in support of its conclusion that defendant's waiver of his rights was knowing, voluntary, and intelligent, we reverse the judgment of the Appellate Division and we reinstate the trial court's order denying defendant's motion to suppress as well as his conviction.
The facts and the procedural history of this matter are inextricably intertwined, as a result of which we present them chronologically, beginning with the factual record developed during defendant's first hearing on his motion to suppress.
Moorestown police were investigating a series of robberies when, on the morning of August 18, 2004, a Dunkin' Donuts in the adjoining community of Maple Shade was robbed for the second time in three days. Moorestown Police Detectives Gunning, Leiber, and O'Donnell arrived at the scene first and, when Maple Shade Detective Mikulski arrived, the Moorestown officers told him about the robberies that they were investigating. In particular, because witnesses to the Maple Shade robbery had described the robber and had reported seeing him leave the scene in a blue truck, the Moorestown officers told Detective Mikulski that those descriptions were similar to the ones they had obtained in their investigations. They told Detective Mikulski that they had identified defendant as a suspect in the Moorestown robberies. Detective Gunning also told Detective Mikulski that defendant was his nephew and, to the best of Detective Mikulski's recollection, revealed at that time that defendant was a heroin addict.
At approximately 3:15 p.m. that day, Patrolman Giannini responded to a call reporting that someone in a blue truck was shooting up drugs behind a pizzeria in Maple Shade. A short time later, he stopped defendant in his blue truck, and arrested him based on outstanding warrants from Camden. Patrolman Giannini then advised defendant of his Miranda*fn1 rights and transported him to the Maple Shade police station. Although a later review of the patrol car's recording equipment revealed that his recitation was inadequate and therefore ineffective, Patrolman Giannini told Detective Mikulski that he had advised defendant of his Miranda rights at the scene of the arrest.
Detective Mikulski began speaking with defendant shortly after defendant arrived at the police station. Believing that defendant had already been advised of his rights, Detective Mikulski did not re-administer the Miranda warnings, but simply began his interview.*fn2 Detective Mikulski also recalled that Detective O'Donnell from the Moorestown Police Department, who was investigating the Moorestown robberies, was also present during part of the first interview.
The first interview continued for roughly two hours and forty-five minutes, and Detective Mikulski testified that he spent much of that time talking rather than asking defendant questions. He recalled that he obtained defendant's biographical information and explained to defendant what the police wanted to discuss with him. According to Detective Mikulski, he described for defendant the investigations into the robberies and told him what the police knew about the robberies, although without revealing all of the information that had been gathered. He described "the way the system worked and so forth and what was entailed with this type of crime" as part of his effort to make defendant aware of the situation he was facing "and what potentially could occur." Although Detective Mikulski testified that a composite drawing of the perpetrator that witnesses had described in connection with the Moorestown robberies had been prepared, he could not recall precisely when he showed it to defendant. According to Detective Mikulski, defendant said he had used heroin earlier that day but made no admissions relating to any of the crimes being investigated.
Detective Mikulski testified that after he had been speaking with defendant for some time,*fn3 defendant said that his uncle, Detective Gunning, had told him that he should have an attorney whenever he was speaking to the police. Although defendant did not ask to consult with counsel or decline to speak to the police except with an attorney present, Detective Mikulski responded to defendant's remark as if it were an assertion of the right to counsel. Detective Mikulski testified that he told defendant that he would have to end the interview, but that defendant responded by "indicat[ing] that he still wished to speak about things." Detective Mikulski refused, advising defendant that the interview could not proceed unless defendant had counsel.
Defendant's testimony on this issue was dramatically different. He testified that he asked for a lawyer because, based on his uncle's advice, he did not want to speak to the police without an attorney present. Defendant testified that, in spite of his request, the detectives did not stop questioning him, but instead tried to coerce him to speak. According to defendant, the police told him that the judge would "play hard ball" with him if he did not cooperate and they used the composite sketch, which they said resembled defendant, in an effort to get him to confess.
Whether or not the words spoken by defendant amounted to an assertion of his right to counsel, and whether or not the police stopped their interview immediately, all parties agree that defendant then requested a cigarette break. Detective Mikulski asked Detective Joseph Gillan, who was the only officer in the department who smoked, to accompany defendant outside for the cigarette break. Detective Mikulski was aware that Detective Gillan and defendant were previously acquainted with each other, but denied that their relationship played a role in his decision to ask Detective Gillan to step outside with defendant during his cigarette break. According to Detective Mikulski, the cigarette break lasted for two to five minutes, and when defendant returned, he again expressed his desire to speak to the police. At that point, full and appropriate Miranda warnings were administered to defendant, after which he formally waived them and confessed.
Again, defendant's recollection was different. He testified that he confessed because he felt threatened, coerced, and harassed by the police who were conducting the investigation. In addition, according to defendant, during the cigarette break, Detective Gillan discussed the investigation, revealing to defendant that the police found his fingerprints at the Dunkin' Donuts, that witnesses had given a description of the robber that matched defendant, and that witnesses had also identified defendant's truck. Defendant testified that Detective Gillan mentioned that he "[had] helped [defendant] out before, that he will help [defendant] out again," and urged him to confess if he was involved in the robberies because of the evidence that the police already had against him. Furthermore, according to defendant, when he returned from the break, the investigating officers continued to pressure him, at which point he decided to say whatever he needed to say in order to leave the room.
Based on all of this testimony, which was developed during the first hearing on defendant's motion to suppress his confession, the trial court made findings of fact and credibility determinations, and concluded that the State had proven beyond a reasonable doubt that Miranda warnings had been properly administered, that defendant had waived his rights, and that, considering the totality of the circumstances, defendant's statement was voluntary. In reaching those conclusions, the court noted that because defendant had been arrested on outstanding unrelated warrants, "he knew or should have known that he was not likely to be released that day" regardless of whether or not he was involved in the robberies. The court found further support for its conclusions by noting that ...