October 30, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
Y.W., a/k/a Y.A.A., Y.A.W., Y.A., Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2013.
Before Judges Reisner and Carroll.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-03-0310.
Sethi & Mazaheri, L.L.C., attorneys for appellant (Sanjay Sethi, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
After the trial court denied her motions to suppress evidence of a search and to suppress her statements to the police, defendant Y.W. was convicted by a jury of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), two counts of fourth-degree child neglect, N.J.S.A. 9:6-1, fourth-degree maintaining a narcotics nuisance, N.J.S.A. 24:21-21a(6), and disorderly-persons marijuana possession, N.J.S.A. 2C:35-10a(4). The jury deadlocked on additional charges concerning weapons possession and CDS possession with intent to distribute. The trial court dismissed those charges with the State's consent on June 25, 2012, and sentenced defendant to four years of probation.
Defendant now appeals from her conviction, raising the following points for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS HER ORAL STATEMENTS TO LAW ENFORCEMENT AS THOSE STATEMENTS WERE A PRODUCT OF A CUSTODIAL INTERROGATION THAT WAS CONDUCTED WITHOUT ADVISING DEFENDANT OF HER MIRANDA RIGHTS.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE OF CDS AND A HANDGUN.
DEFENDANT'S CONVICTION FOR CHILD NEGLECT WENT BEYOND THE WEIGHT OF THE EVIDENCE AND THE JURY FINDING OF GUILT ON THIS CHARGE CONSTITUTED A MISCARRIAGE OF JUSTICE.
Having reviewed the record, we reject all of those arguments and affirm.
The following evidence was introduced at a September 22, 2011 suppression hearing concerning the discovery of drugs and a handgun. A law enforcement task force consisting of several United States Marshalls and several Mercer County Sheriff's Officers (collectively, officers), arrived at defendant's house early on the morning of January 11, 2011. They were trying to locate and arrest a fugitive named Kevin Jackson, a known member of the Bloods street gang, who was wanted for sentencing on drug distribution and weapons convictions. Through their investigation, the officers had learned that defendant was associated with Jackson and that there was an outstanding warrant for her arrest as well. The officers intended to arrest defendant on that warrant and to question her about Jackson's whereabouts.
When the officers arrived and knocked on the door, defendant poked her head out a third story window. They identified themselves, and she came downstairs and let them in. Defendant was dressed in a long white tank top and wore no pants or shoes. The officers found one of defendant's young daughters on the first floor of the house. The officers searched the upstairs portion of the house looking for anyone who might be a threat to them during the arrest and looking for an adult who might be able to care for the child, since they were arresting her mother. They found another child on the second floor. They also found defendant's boyfriend, Hubert Moore, on the third floor.
Detective Jeremy Stewart testified that, after advising defendant that she was being arrested, he accompanied her upstairs to the third floor bedroom so that she could get dressed. According to Stewart, when the two of them arrived in the bedroom, he found Hubert Moore sitting on the bed. One of the other task force members, Detective Dean Wylie, accompanied Moore downstairs. On the way downstairs, Moore told Wylie that he was on parole.
Stewart testified that the officers wanted to assemble all of the occupants of the house in one room, for the officers' protection while they were effectuating the arrest. According to Wylie, he brought Moore to the living room, where the two children were also located by that time. Moore was not under arrest or handcuffed. As Moore headed toward a chair near the front door, Wylie directed him to stop for a moment so that he could look at the chair. For his protection and that of the other officers and the "civilians present, " Wylie looked under the chair cushion for weapons. He found a handgun with a spent shell casing in the chamber. At that point, he arrested Moore.
Meanwhile, Stewart was supervising defendant while she dressed. As defendant chose an outfit to wear, Stewart checked each garment to be sure it did not contain any contraband items. When defendant finished dressing, she reached for a black and blue print pocketbook to bring with her to the police station. For his own protection and to prevent defendant from bringing contraband to the police station, Stewart looked inside the pocketbook. He found a plastic baggie containing a quantity of what he recognized as marijuana, and several star-shaped orange pills. At that point, he stated, "wow, look what we have here." Defendant replied, "that's just marijuana." Stewart testified that: "I told her I understood what the marijuana was but I wasn't quite sure what the little orange star-shaped pills were and she commented that they were ecstasy."
After Stewart brought defendant downstairs, one of the other officers commented about the caliber of the handgun the police had found, stating that it was a .38 caliber. Stewart testified that defendant spontaneously remarked that the gun was a .32 caliber. She also "indicated that the firearm and the drugs were hers."
Defendant's version of the events was different. She testified that once she came downstairs to let the officers into the house, she remained in the kitchen and never went back upstairs. She stated that she told the officers that her boyfriend was upstairs but denied that they let her go upstairs to get dressed. She testified that when the officers came in, she was immediately handcuffed. She testified that a woman officer retrieved a "hoodie" from upstairs and put it on over defendant's head while she was handcuffed. Defendant claimed that the officers took her to the station dressed that way in the middle of January, wearing only "boy shorts" and no pants. She denied selecting the pocketbook and claimed that the officers planted the drugs and the gun in her house.
Moore testified that the officers arrested and handcuffed him as soon as they found him in the third-floor bedroom. He claimed they brought him downstairs, pushed him toward the living room chair, and then searched the chair before he could sit down. On cross-examination, Moore admitted that the officers brought defendant upstairs to let her get dressed. He also admitted telling the officers that he was on parole.
The motion judge found that the law enforcement witnesses were more credible than defendant and Moore. He found that the events happened as Stewart and Wylie described them. He found that Stewart accompanied defendant upstairs to get dressed, defendant grabbed her purse, and Stewart then searched it and found the drugs. The judge found that
there was a good faith basis to arrest Ms. Walker on January 11, that there was a good faith basis that the officers had in the limited search that was conducted of a purse that a defendant is proposing to take with her into a patrol car, and a good faith basis for searching a chair that a person in the house who is know[n] to the police officers from a prior criminal record and being on parole prior to allowing him to sit in the chair.
The judge determined that the search of the purse was a valid search incident to an arrest. He found that the search of the chair was reasonable to protect the officers' safety.
At the Miranda hearing on February 27, 2012, Stewart described defendant's spontaneous statement that the drugs in her purse were "just a little weed." According to Stewart, he then said he recognized the marijuana but he did not know what the pills were, and she responded they were Ecstasy. He testified that when defendant was brought downstairs, one of the officers said that the handgun was a .38 caliber. Defendant spontaneously remarked: "That's a .32. You . . . don't know your guns." She also stated, "I'm just holding that gun for somebody."
According to Stewart, while defendant was in the holding cell at the police station, defendant was advised of the charges against her and stated that she "wanted to give a statement voluntarily that the gun and the drugs were hers." The police then brought her to the prosecutor's office to be interviewed on videotape. However, after they advised her of her Miranda rights, she declined to make a statement.
In her testimony, defendant denied making any incriminating statements about the drugs or the gun. Contrary to her testimony at the earlier hearing, she stated that the officers did take her upstairs after she was arrested. However, she claimed they wanted her to show them where Moore was located.
In an oral opinion placed on the record after the hearing, the motion judge found Stewart credible and defendant not credible. He found that defendant's statements about the marijuana and the Ecstasy were "not the product of impermissible custodial interrogation, " but rather were purely voluntary spontaneous statements. He made the same findings with respect to defendant's statements about the caliber of the handgun and the fact that she was just "holding" it for someone else, and her statement that she wanted to claim ownership of the drugs and the gun.
On an appeal from a trial court's decision on a suppression motion, we defer to the trial court's findings so long as they are supported by sufficient credible evidence. State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2012); State v. Elders, 192 N.J. 224, 243 (2007). Like the trial court, we are not concerned with the subjective motives of the police in conducting the search, but rather with whether their conduct was objectively reasonable based on the facts known to them at the time of the search. State v. Brown, 205 N.J. 133, 146 (2011); State v. Bruzzese, 94 N.J. 210, 221 (1983).
Once the police arrest a defendant inside her home, they have a right to follow her wherever she goes within the house, for their own protection and to prevent her from fleeing. Bruzzese, supra, 94 N.J. at 232. Thus, Detective Stewart had the right to remain with Walker when she went upstairs to get dressed. Id. at 235. He also had the right to check all of the items of clothing and accessories she selected, to make sure they did not contain guns or contraband, since he was taking her into custody. See State v. Pena-Flores, 198 N.J. 6, 19-20 (2009).
We find no basis to disturb the trial judge's factual findings that defendant selected the purse to bring with her to the police station, and that the officer checked the purse for weapons after defendant selected it. The officer had a right to conduct that search for his protection, incident to the arrest. Ibid. Therefore, the trial judge correctly denied the motion to suppress evidence of the drugs found in the purse.
We next address the discovery of the handgun. That discovery occurred after the detectives arrived on the third floor of the house and found Moore. Detective Wylie accompanied Moore downstairs to the living room. As Moore headed toward a chair, Wylie quickly searched under the chair cushion to ensure it did not contain a weapon. Under all the circumstances, we conclude that he acted reasonably and there was no basis to suppress evidence of the handgun found under the chair cushion.
When they are conducting an arrest of a suspect who may be violent or have violent associates, the police may briefly search the house in which they are arresting the suspect, for their protection.
A protective or "fan out" search is justified by the need for the police to make sure no third parties are present who might endanger them. It follows, of course, that if such persons are found, the police may take reasonable measures to avert any physical threats of harm. Such steps would sanction the frisking of any persons who are found, as well as the confiscation of evidence in plain view. Also permitted would be a search of areas within the immediate control of those third parties, and a search of such areas, . . . may be directed to weapons not in plain view.
[State v. Smith, 140 N.J.Super. 368, 373 (App. Div. 1976), aff'd o.b. 75 N.J. 81 (1977) (emphasis added; citations omitted).]
However, the police may not use the arrest as an excuse to search for contraband:
The police may also "fan out" and conduct a protective sweep of the area if they have reason to believe that they may be in danger from other parties on the premises. See State v. Smith, 140 N.J.Super. 368, 372, 356 A.2d 401 (App. Div. 1976), aff'd o.b., 75 N.J. 81, 379 A.2d 1275 (1977). The one thing they may not do, however, is use the arrest as a pretext to search for evidence. See [State v.] Hand, 101 N.J.Super. 43, 58, 242 A.2d 888 (1968).
[State v. Henry, 133 N.J. 104, 118 (1993).]
In State v. Davila, 203 N.J. 97 (2010), the Court addressed the right of the police to conduct a protective sweep for their own protection, after obtaining consent to enter the premises but without an arrest warrant. The Court acknowledged that "at a minimum, the presence of probable cause to arrest is a weighty factor in the calculation of whether officers are in danger when effecting an arrest in the home." Id. at 120 n.8 (citation omitted). When the police do not have an arrest warrant, further scrutiny of a protective sweep is justified:
We hold that a protective sweep of a home may only occur when (1) law enforcement officers are lawfully within the private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. Where those substantive conditions are met, as a matter of procedure, the sweep will be upheld only if (1) it is cursory, and (2) it is limited in scope to locations in which an individual could be concealed. As additional guidance we add the following. The search should be strictly limited in duration to the time frame during which police are lawfully within the premises. Moreover, when a protective sweep is performed in a non-arrest setting, as when police presence in the home is not due to the execution of an arrest warrant, the legitimacy of the police presence must be probed. And, a careful examination must be undertaken of the basis for the asserted reasonable articulable suspicion of dangerous persons on the premises.
[Id. at 125-26.]
In this case, the police were lawfully arresting defendant pursuant to an arrest warrant. They had the right to accompany defendant to her bedroom while she got dressed. Bruzzese, supra, 94 N.J. at 232. Therefore, they were lawfully in the bedroom where they found Moore. However, even if they had found him earlier, during a protective sweep of the house, that search was reasonable under the circumstances. Defendant was a known associate of a violent Bloods gang member who was wanted for drug and weapons offenses, and whom the police believed might be in the house. Since they were arresting defendant, which logically was going to involve letting her get dressed before they transported her to headquarters, the police needed to make sure there was no one upstairs who might prove a threat to their safety. Additionally, because the police had found one child downstairs, and they were arresting that child's mother, it was reasonable to briefly search the house for any additional children.
Once the police found Moore and learned that he was a parolee and, according to defendant's own testimony, learned that he was her boyfriend, they had reasonable grounds to treat him as a potential threat to their safety. He was a known criminal and they were in the process of arresting his girlfriend. They escorted Moore downstairs to the living room, where the two children were also assembled. According to Wylie's credible testimony, rather than remain standing, Moore headed toward a chair near the door. The officer acted reasonably for his protection, and the protection of the children, in briefly checking under the chair cushion for a weapon, which would have been within Moore's reach. The fact that the officers did not act more intrusively by searching Moore for weapons before they brought him downstairs, did not vitiate their right to conduct a less-intrusive search under the chair cushion. That extremely limited search was objectively reasonable under the facts of this case.
Defendant's remaining arguments require little discussion. According to testimony the trial judge found credible, defendant made a series of spontaneous admissions concerning the drugs and the gun.
Miranda has no application to statements that are "volunteered." Interrogation triggering the State's obligation to deliver Miranda warnings requires "words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response."
[State v. Brabham, 413 N.J.Super. 196, 210-11 (App. Div.), certif. denied, 203 N.J. 440 (2010)(citations omitted).]
In this case, we agree with the trial judge that defendant's statements -- identifying the drugs in her purse as "weed" and Ecstasy, and admitting that she knew the caliber of the gun and was "holding" it for someone else -- were clearly spontaneous and volunteered. Defendant's reliance on State v. Ward, 240 N.J.Super. 412 (App. Div. 1990), and State v. Brown, 282 N.J.Super. 538 (App. Div.), certif. denied, 163 N.J. 76 (2000), is misplaced. In those cases, the police engaged in conduct calculated to elicit an incriminating response from the defendant. That did not happen here.
Defendant argues in Point III that her conviction for child neglect was against the weight of the evidence. That argument is barred on appeal, because she did not move for a new trial or otherwise raise the issue in the trial court. See R. 3:20-1; R. 2:10-2. But even if we consider the argument, it is plainly without merit. The gun was operable and was accessible to two children. By her own admission to the police, defendant knew the gun was hidden under a chair cushion in the living room, where either or both of her pre-teen children could have found it.