June 25, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOSEPH T. WANDS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-08-1209.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves and Espinosa.
Defendant Joseph T. Wands appeals from his conviction for third-degree receiving stolen property, N.J.S.A. 2C:20-7, and argues that the motion judge erred in denying his motion to suppress statements and evidence. We affirm.
The facts are derived from the testimony of Officer Richard Belotti and Sergeant Russell Anderson of the Sayreville Police Department, the only witnesses at the evidentiary hearing.
Belotti, Anderson, and Detective Jeffrey Sprague went to defendant's residence in the course of their investigation into a burglary and theft at Auto Team, a car rental company where defendant's employment had recently been terminated. The items stolen included twenty GPS units, power tools, an HP PDA Palm Pilot, a circular Miter saw, a Dell laptop computer, and an iPod docking station. Belotti and Anderson entered the vestibule of the two-family home and walked upstairs to the unit where defendant resided. Belotti testified that, as they stood outside, they could hear a male voice "talking about circular saws and things this male was trying to sell or get rid of."
The officers knocked on the door. Although he did not reside there, T.J. Carlin, a person known to Anderson, opened the door. Anderson testified that he said, "Thomas, how you doing[, ]" and Carlin extended his hand to him. Anderson testified that he had to step through the doorway to shake Carlin's hand. He asked Carlin who he was talking to. Carlin replied, "it wasn't me. It was Joe." Anderson then asked, "Where's Joe?" and looked around. Anderson "yelled for Joe" two or three times and, getting no answer, again asked Carlin where he was. Carlin said he was "right here, " referring to a room beyond a curtain-covered doorway. Carlin and the two officers proceeded to the doorway. Anderson pulled back the curtain and saw defendant in the closet, talking on the phone, and asked him to "[c]ome up here." Defendant stepped out of the closet.
Although defendant was a suspect in the burglary, Belotti testified he did not provide him with his Miranda rights because he was not in custody. Belotti asked defendant what he was talking about on the phone. Defendant denied talking about selling any power tools or circular saws. Belotti then explained why the officers were there, mentioning the Auto Team burglary. Defendant said he no longer worked there and had not been there, and then "blurt[ed] out that he ha[d] in his possession nail guns from that employer that he had obtained over time[.]" The officers asked if defendant's employer knew that he had the nail guns and defendant replied that he did not.
The officers asked defendant for his consent to search the apartment. Although defendant consented to a search, the officers decided to apply for a search warrant because he appeared to be under the influence of "some sort of intoxicant or narcotic" and mentioned to Anderson that he "had some Oxies[, ]" referring to Oxycodone. They saw items in plain view that matched the description of items taken in the Auto Team burglary, i.e., a laptop computer and an iPod docking station, secured the apartment, and asked defendant to accompany them to headquarters.
Belotti gave defendant Miranda warnings on videotape in the interview room, as witnessed by Anderson. Belotti told defendant, who was not handcuffed, that he was not under arrest. Defendant agreed to be questioned and was asked about his whereabouts on the weekend of the burglary. He gave an account that admitted no involvement in the burglary.
The application for a search warrant described the items missing from Auto Team as well as the items observed at defendant's apartment, the conversation overheard by the officers outside his door, and the statements defendant made at his apartment and at the police department. Belotti and Anderson returned to defendant's apartment to execute the warrant. Among the items recovered were the nail guns defendant had mentioned to them, an HP PDA Palm Pilot, a GPS unit with a date written on top of it,  and an iPod docking station. Bachman identified the GPS unit and Palm Pilot items as stolen from Auto Team. Defendant owned the iPod docking station but had left it at Auto Team when his employment was terminated. It was missing after the burglary and reported as stolen. In addition, thirteen Oxycodone pills were recovered.
Defendant was arrested and taken to police headquarters. He was provided and acknowledged his Miranda rights. Defendant asked whether he could be released on his own recognizance. After being told, "No, " he stated, "I'm taking the fall again for somebody. . . . I guess I'm already taking the fall for myself, so I wanna have a lawyer." Questioning ceased.
Defendant filed motions to suppress the evidence recovered and the statements he made at his home and at the police department. In denying the motions, the motion judge relied upon the testimony of the officers and his own review of the videotaped interviews of defendant. The judge's findings included the following.
It was reasonable for the officers to go to defendant's residence after learning he had recently been discharged from his employment at Auto Team. The officers were lawfully in a public place when they overheard a male voice in defendant's apartment discussing the sale of a saw, which related to one of the items stolen from Auto Team. Carlin had apparent authority to invite them into the apartment and did so, leading them back through the apartment to where defendant was located. While lawfully in the apartment, the officers saw items that were reported stolen in plain view.
In the first videotaped interview, defendant was slow in responding but his responses were "clear and direct . . . knowing [and] intelligent response[s]." The judge stated he "cannot find [defendant] was unaware in any way of his surrounding[s] or what the questions were" or that defendant's understanding or judgment was compromised by taking the medication. Further, Miranda warnings were clearly given and understood.
[T]here was no force or coercion, no threats. Defendant clearly seemed to understand every question that was being asked. He was not promised anything or threatened in any way and clearly appeared willing to speak to the extent he chose to speak as evidenced by his refusal the second time. He in fact admitted at the scene before he was taken down to headquarters [that] he had taken four nail guns.
Defendant was sleeping when the second video began and took fifteen to thirty seconds "to become ungroggy[.]" This time, he asserted his right to counsel and the interview ended. Based upon these findings, the motion judge denied defendants' motions.
Thereafter, defendant pled guilty to one count of third-degree burglary pursuant to a plea agreement in which a charge for possession of the Oxycodone was dismissed, and the State agreed to recommend a sentence of three years. Defendant reserved the right to appeal the denials of his motions. He was sentenced, consistent with the plea agreement, to a term of three years.
Defendant presents the following arguments for our consideration in this appeal:
ALL INCRIMINATING STATEMENTS DEFENDANT MADE WHILE IN HIS HOME MUST BE SUPPRESSED BECAUSE THE POLICE SUBJECTED HIM TO CUSTODIAL INTERROGATION WITHOUT PROVIDING MIRANDA WARNINGS.
ALL INCRIMINATING STATEMENTS DEFENDANT MADE WHILE AT THE POLICE STATION MUST BE SUPPRESSED BECAUSE DEFENDANT'S WILL WAS OVERBORNE.
ALL PHYSICAL EVIDENCE SEIZED PURSUANT TO THE SEARCH WARRANT MUST BE SUPPRESSED BECAUSE THE SEARCH WARRANT WAS BASED ON STATEMENTS DEFENDANT MADE AS A RESULT OF THE POLICE UNLAWFULLY INTRUDING INTO HIS HOME AND SUBJECTING HIM TO CUSTODIAL INTERROGATION IN THE ABSENCE OF MIRANDA WARNINGS AND ON INVOLUNTARY STATEMENTS DEFENDANT MADE AT THE POLICE STATION.
The scope of appellate review of a motion judge's findings in a suppression hearing is limited. State v. Robinson, 200 N.J. 1, 15 (2009). An appellate court "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). Although such deference is limited if "the trial court's sole basis for its findings and conclusions is its evaluation of a videotaped interrogation, " State v. Diaz-Bridges, 208 N.J. 544, 565 (2011) (emphasis added), the basis for the motion judge's findings here included an assessment of the testimony. We therefore adhere to the general principle, "[a] trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
We have considered each of defendant's arguments in light of the record and the applicable legal principles and conclude that none have any merit and that the argument raised in Point II lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's arguments in Points I and III are premised upon the contentions that the officers gained entry to his apartment unlawfully and that he was subjected to custodial interrogation at his home. We reject these premises.
The motion judge found that Carlin had apparent authority to permit the officers' entry into defendant's apartment and led them through the apartment to defendant's location. We note that the consent found here was not to a "search" of the apartment or of any contained space therein. Even when such consent is at issue, "valid consent may be obtained from one other than the accused." State v. Suazo, 133 N.J. 315, 320 (1993) (citing State v. Coyle, 119 N.J. 194, 215 (1990)). "A third party who possesses 'common authority over or other sufficient relationship' to the property sought to be inspected may consent to its search." Ibid. (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 250 (1974)). "That authority to consent arises from the mutual use of the property by persons generally having joint access or control for most purposes[.]" Ibid. (internal quotation marks omitted). In assessing the officers' reliance upon Carlin's apparent authority here, we "consider whether the officer's belief that the third party had the authority to consent was objectively reasonable in view of the facts and circumstances known at the time of the search." Ibid.
In State v. Kaltner, 420 N.J.Super. 524 (App. Div. 2011), aff'd, 210 N.J. 114 (2012), we reviewed the actions of police officers who responded to a noise complaint at a house where a party was ongoing. The officers knocked on the door and an unidentified male opened the door and let them in, but walked away before the officers could speak with him. Id. at 529-30. Although we affirmed an order suppressing evidence seized when the officers later fanned out through the house, we noted, "there is no real dispute that the police officers' initial entry onto the premises in response to a noise complaint was lawful, " and stated, "'[a]ppearance of control' at the time of the search, 'not any subsequent resolution of questions of title or property rights, ' informs the court's assessment of the officer's search." Id. at 536 (quoting State v. Farmer, 366 N.J.Super. 307, 313 (App. Div.), certif. denied, 180 N.J. 456 (2004)).
The control exercised by Carlin was to open the door and allow the officers inside. It was objectively reasonable for the officers to conclude that he had the apparent authority to do so, to enter the apartment, and to follow him to defendant's location. Thus, the officers were lawfully present both outside the door when they overheard a male voice discussing the sale of a saw, and inside the apartment, where items reported stolen were in plain view.
Defendant also contends that he was subjected to custodial interrogation at his apartment. "[C]ustody in the Miranda sense does not necessitate a formal arrest, nor does it require physical restraint in a police station, nor the application of handcuffs, and may occur in a suspect's home or a public place other than a police station." State v. P.Z., 152 N.J. 86, 103 (1997) (internal quotation marks omitted). "The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." Ibid. As the motion judge found, the officers were present in defendant's apartment at the invitation of his guest. Although defendant was a suspect, no evidence was presented at the evidentiary hearing to support a finding that his freedom of action was deprived in any significant way. Defendant was not, therefore, in custody at his apartment. Having rejected defendant's arguments that his statements and the officers' access to his apartment were unlawfully obtained we also find no merit in his challenge to the search warrant.