On appeal from Superior Court of New Jersey, Law Division, Mercer County, Complaint No. S-2011-0249.
The opinion of the court was delivered by: Fuentes, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 2, 2011 -
Before Judges Fuentes, Graves, and Harris.
The opinion of the court was delivered by FUENTES, P.J.A.D.
By leave granted, the State appeals from the order of the trial court denying its application to compel defendant Mylon Kelsey, a police officer in the City of Trenton, to produce a flashlight that may or may not be in defendant's possession. The State claims it has probable cause to believe the flashlight may have been used by defendant illegally as a weapon, when defendant took part in a street brawl, during which at least one person sustained serious bodily injury from allegedly being hit with the flashlight. The trial court initially granted the State's ex parte motion to compel defendant to produce the flashlight. On defendant's motion for reconsideration, the court stayed the execution of its order, ordered briefing on the issue, and scheduled oral argument on the matter.
After hearing arguments from both sides, the court granted defendant's motion for reconsideration and vacated its previous order compelling defendant to produce the flashlight. Relying primarily on Bayonne Municipal Investigating Committee. v. Servello, 200 N.J. Super. 413 (Law Div. 1984), the court held that compelling defendant to turn over the flashlight under these circumstances would violate defendant's right against self-incrimination. The court concluded that such an order would be "comparable to having [d]efendant make the prosecution's case against himself." We agree with the trial court and affirm.
I At all times relevant to this case, defendant was a Trenton police officer. At approximately 1:00 a.m. on January 17, 2011, the police departments of both the City of Trenton and Hamilton Township received several 911 calls reporting an altercation outside the TriNaNog Bar, located on Hamilton Avenue in Trenton. According to the 911 dispatcher, one caller described the scene as "a big fight" involving as many as twelve people using bats as weapons; another caller "characterized the situation 'as a terrible, terrible fight,'" in which one man was "'on the ground and [could not] get up.'" That same caller indicated that one of the men taking part in the fight was using a flashlight as a weapon.
Hamilton Township police officers who responded to the scene did not arrest or charge anyone allegedly connected to the altercation. At noon the following day, the father of one the victims contacted the Trenton Police Department's Internal Affairs Bureau and told Detective Sergeant Timothy Thomas that some of the participants in the fight were off-duty Trenton police officers who were patrons of the bar. At approximately 3:00 p.m. that same day, Trenton Detective Manuel A. Montez and Thomas were assigned to follow-up on this information. Montez and Thomas interviewed and photographed four alleged victims and two other individuals whom the officers described as "eyewitnesses." Based on the information gathered from these interviews, the Trenton Police Department decided to initiate a formal internal affairs investigation.*fn1
On January 18, 2011, officers from the Trenton Internal Affairs Bureau took formal written statements from the four victims and two eyewitnesses. Four of the interviewees described defendant's vehicle as the car from which an African-American man -- defendant is African-American -- removed a black flashlight to hit several people involved in the fight. Defendant's photograph was thereafter selected by these witnesses as depicting the man who had removed the flashlight from the car. Several witnesses also saw defendant: (1) leaving the scene of the brawl; (2) retrieving the flashlight from his vehicle; (3) using the flashlight as a weapon to strike people involved in the altercation; and (4) return the flashlight to his vehicle. Defendant allegedly hit two of the victims in the head with the flashlight, causing contusions.
On January 19, 2011, on the State's application, the trial court issued a warrant to search defendant's vehicle. The vehicle was described as a gold-colored, 2007 Infiniti FX3. The officers who searched the car found an empty flashlight box in the cargo area. The State believes, by way of inference, that the box contained the flashlight used by defendant in the altercation. The box is for a Streamlight LED flashlight, model SL-20X. The actual flashlight has not been found.
On this record, the trial court initially granted the State's ex parte application to compel defendant to turn over the flashlight, if he had it in his possession. Upon defendant's motion for reconsideration, the court vacated its prior order, holding that to compel defendant to turn over the flashlight under these circumstances would violate defendant's right against self-incrimination. The following excerpt from the court's memorandum of opinion reveals the court's reasoning:
The Court finds Defendant is not required to provide the State with the aforementioned flashlight. The flashlight in this case is distinguishable from the evidence New Jersey Courts have compelled from Defendants in the past. Evidence such as voice tests, blood samples, hair samples and handwriting is used primarily for identification or for purposes of comparison. Compelling Defendant to turn over the flashlight is comparable to having Defendant make the prosecution's case against himself. The act of actually ...