On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-10-02496.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2010
Before Judges Fisher and Simonelli.
Following the denial of his motion to suppress evidence and to determine the admissibility of his post-arrest statements, defendant Charles Butler pled guilty to second-degree manufacturing, distributing or dispensing a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) (count three), and second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (count SIX). The trial judge imposed a six-year term of imprisonment with three years of parole ineligibility on the CDS conviction and a concurrent six-year term on the weapons conviction. The judge also imposed the appropriate assessments, penalty, and fee.
On appeal, defendant raises the following contentions:
I. MR. BUTLER EXERCISED HIS RIGHT TO REMAIN SILENT AND TO CONSULT WITH A LAWYER AND THE STATE CANNOT PROVE BEYOND A REASONABLE DOUBT THAT HE LATER KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS AFTER THE POLICE UNILATERALLY REINITIATED QUESTIONING WITHOUT ALLOWING HIM TO CONSULT WITH A LAWYER AND ON THE SAME TOPIC
II. POLICE QUESTIONING OF MR. BUTLER IN VIOLATION OF HIS MIRANDA RIGHTS VITIATED HIS PURPORTED CONSENT TO SEARCH AND THE TRIAL COURT'S DECISION SHOULD BE REVERSED
According to New Jersey State Police (NJSP) Detective Quinn DeRose, the NJSP were involved in an ongoing investigation of defendant's participation in illegal drug trafficking. As a result of that investigation, the NJSP arrested defendant in Atlantic City on December 13, 2007, transported him to the Marine Bureau, and placed him in a holding cell, where DeRose advised him of the charges against him and read him his Miranda*fn1
rights. Defendant, who was coherent, relaxed and cooperative, acknowledged he understood his rights, did not request clarification, signed a Miranda card, did not request an attorney, and agreed to speak to DeRose.
DeRose also read defendant his rights regarding a consent to search his vehicle, residence and a self-storage unit. Defendant signed a consent-to-search form. No one threatened, coerced, intimidated, verbally or physically abused defendant or made promises to him in order to gain his cooperation.
The NJSP searched defendant's vehicle in his presence, and recovered marijuana, a .32 caliber pistol, holster, magazine and ammunition. The NJSP then searched defendant's residence in his presence, recovering eleven ounces of marijuana and drug paraphernalia. The NJSP also searched defendant's storage unit in his presence, recovering drug paraphernalia. At no time during any of the searches did defendant withdraw his consent to search, limit or terminate the search, or ask to consult with an attorney.
Upon completion of the searches, DeRose escorted defendant to the Buena Vista headquarters for processing. After completion of processing, defendant was placed into the interview room, provided food and water, and permitted to smoke. DeRose discussed whether defendant would agree to give a taped statement, advised him of the nature of the questions to be asked, ...