Opinion
DOCKET NO. A-2685-14T2
09-09-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH CRUMBLE, a/k/a KENNETH J. CRUMBLE, JR., Defendant-Appellant.
Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hubbard, of counsel and on the brief). Melinda A. Harrigan, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 14-03-0518. Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hubbard, of counsel and on the brief). Melinda A. Harrigan, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his November 3, 2014 judgment of conviction. He challenges the denial of his motions to suppress his handgun and his statement to police. We affirm.
I.
Atlantic City Police Detective Anthony Abrams testified as follows at the suppression hearing. Around 11 p.m. on March 27, 2013, Abrams and Officer Brian Hambrecht were on patrol in a marked police cruiser in the area surrounding a housing complex in a high-drug, high-crime area.
Abrams observed defendant exiting a taxicab, and noticed that defendant "was acting belligerent," and was "yelling at the cab driver." Defendant then slammed the cab door.
Officers Abrams and Hambrecht drove towards defendant to see what was going on as the cab sped off. Defendant was standing in the middle of the street, "was still yelling and making hand gestures and seemed . . . irate about something." Abrams and Hambrecht got out of the cruiser. Abrams asked defendant if he was okay. Defendant was visibly nervous. Abrams asked him his name and if he had identification. Defendant said he did not have identification on him.
During the conversation, defendant "kept kind of like reaching around with his hands a little bit" around his waistband. Officer Abrams said, "hey, just do me a favor, keep your hands where I can see them." Defendant appeared extremely nervous and again "put his hands towards his waistband." Of his own volition, defendant put his hands on top of his head and told the officers that he just got back from Iraq, and that he had a handgun on his person for protection.
When defendant lifted his arms, his shirt lifted and Officer Abrams could see the bulge of the gun in his waistband. Abrams and Officer Hambrecht retrieved the gun, and placed defendant under arrest.
At the police station, Detective Allen Herbert conducted a videotaped interview of defendant. Defendant indicated that had recently served in the military, that he was carrying the firearm for protection, and that he had been robbed and shot in the past.
On March 6, 2014, a grand jury indicted defendant for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3(f). On May 8, 2014, defendant filed a motion to suppress the physical evidence and his statements to Detective Herbert. On June 12, 2014, a suppression hearing was held before Judge Mark H. Sandson, and both Detective Abrams and Detective Herbert testified. In a written opinion dated June 24, 2014, Judge Sandson denied defendant's motion.
On July 21, 2014, defendant pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), pursuant to a negotiated plea agreement. The State recommended, and the trial court later imposed, a sentence of five years in prison, subject to three-years' parole ineligibility.
Defendant appeals, arguing:
POINT I - BECAUSE THE POLICE HAD NO REASONABLE SUSPICION TO BELIEVE THAT CRUMBLE HAD BEEN INVOLVED IN CRIMINAL ACTIVITY, THEY HAD NO RIGHT TO SUBJECT HIM TO AN INVESTIGATORY STOP AND THE TESTIMONIAL AND PHYSICAL EVIDENCE THAT FLOWED FROM THAT ILLEGAL STOP MUST BE SUPPRESSED. (U.S. CONST., AMENDS. IV AND XIV; N.J. CONST. (1947), ARTICLE I, PAR. 7) (RAISED BELOW).
POINT II - BECAUSE THE POLICE FAILED TO SCRUPULOUSLY HONOR CRUMBLE'S ASSERTION OF HIS RIGHT TO COUNSEL, THE TAKING OF HIS STATEMENT WITHOUT REGARD TO THAT RIGHT DEPRIVED HIM OF DUE PROCESS AND IT MUST BE SUPPRESSED. (U.S. CONST. AMEND. V, XIV; N.J. CONST. ART. I, PAR. 10). (RAISED BELOW).
II.
We must hew to our "deferential standard of review." State v. Rockford, 213 N.J. 424, 440 (2013). "[A]n appellate court reviewing a motion to suppress 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." Ibid. (internal quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (internal quotation marks omitted). The suppression court's "'findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 244 (2007)).
III.
The suppression court properly found that the initial interaction between defendant and Officers Abrams and Hambrecht was a field inquiry. "'[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen[.]'" State v. Shaw, 213 N.J. 398, 410 (2012) (citation omitted); accord Illinois v. Lidster, 540 U.S. 419, 425, 124 S. Ct. 885, 890, 157 L. Ed. 2d 843, 851 (2004). Such field inquiries are "permissible warrantless conduct" which, "'except for impermissible reasons such as race, may be conducted "without grounds for suspicion.State v. Diloreto, 180 N.J. 264, 275 (2004) (citations omitted). "So long as the questioning 'is not harassing, overbearing, or accusatory in nature,' and the person is free to refuse to answer and '"go on his way,"' the person's Fourth Amendment rights are not implicated." State v. Gibson, 218 N.J. 277, 291 (2014) (citations omitted).
Moreover, it is undisputed that "a police request for identification does not, by itself, constitute a seizure or detention within the meaning of the Fourth Amendment," State v. Sirianni, 347 N.J. Super. 382, 390-92 (App. Div.), certif. denied, 172 N.J. 178 (2002), and "does not escalate a field inquiry into an investigative stop," State v. Daniels, 393 N.J. Super. 476, 484 (App. Div. 2007).
When they were speaking with defendant, the officers did not stop defendant or prevent him from going on his way. There is no indication that the officers questioned defendant improperly. Thus, the trial court properly found that this was initially a field inquiry rather than an investigatory stop.
Defendant argues that it was not a field inquiry because Detective Abrams testified that when he was asking defendant for identification, Abrams did not believe that defendant was free to leave. However, the standard is whether "an objectively reasonable person feels that his or her right to move has been restricted." State v. Rodriguez, 172 N.J. 117, 126 (2002). "Neither the officer's subjective intent, nor the subjective belief of the citizen, determines whether a seizure has occurred." Ibid. (citations omitted). Abrams and Hambrecht gave no objective indication that defendant was not free to leave.
When defendant nervously began moving his hands around his waistband, Abrams testified that he asked defendant to do him a favor and keep his hands where Abrams could see them. Defendant argues that request would make an objectively reasonable defendant believe she or he was detained. However, "a request for a suspect to remove his hands from his pockets" is not sufficient to "convert a consensual encounter into a seizure," "'as long as the police do not convey a message that compliance with their request is required.'" Wayne R. LaFave, Search and Seizure §9.4(a), at 584-85 (5th ed. 2012) (quoting Florida v. Bostick, 501 U.S. 429, 435, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389, 399 (1991)) (citing Duhart v. United States, 589 A.2d 895, 898 n.6 (D.C. 1991); State v. Hamilton, 36 So. 3d 209, 211 (La. 2010); see also United States v. Barnes, 496 A.2d 1040, 1045 (D.C. 1985) (no seizure where the police officer asked the suspect to remove his hands from his pockets as this was no more intrusive than asking for identification).
In any event, "[t]he totality of the circumstances known to the investigating officer and his experience permitted his ordering [a suspect] to place [his] hands where they could be seen, even if such an order constituted a seizure of the person." State v. Otero, 245 N.J. Super. 83, 92 (App. Div. 1990).
Defendant does not dispute that when he on his own volition lifted his arms revealing the bulge of a firearm, and told officers that he had a handgun in his waistband without having been asked, probable cause existed to arrest defendant and seize the handgun.
IV.
The suppression court also properly denied suppression of defendant's statement to Detective Herbert. "As the Court made clear, if the accused 'indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.'" State v. Alston, 204 N.J. 614, 619-20 (2011) (quoting Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 707 (1966)). In deciding this issue, we must consider the differing constitutional standards adopted by the United States and New Jersey Supreme Courts.
The United States Supreme Court has held that "the Fifth Amendment only requires police to stop questioning if the suspect makes a request for counsel that is unambiguous or unequivocal." Ibid. (citing Davis v. United States, 512 U.S. 452, 459-62, 114 S. Ct. 2350, 2355-57, 129 L. Ed. 2d 362, 371-73 (1994)). As a result, the Court "decline[d] to adopt a rule requiring officers to ask clarifying questions. If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Id. at 621 (quoting Davis, supra, 512 U.S. at 461-62, 114 S. Ct. at 2356, 129 L. Ed. 2d at 373). Nonetheless,
its opinion continued with the observation that "when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect's statement regarding counsel."
[Ibid. (quoting Davis, supra, 512 U.S. at 461-62, 114 S. Ct. at 2356, 129 L. Ed. 2d at 373).]
Unlike the United States Supreme Court, our Supreme Court has "set the threshold at whether a suspect's statement 'arguably' amounted to an assertion of Miranda rights, and held that in those circumstances, the officer must clarify with the suspect in order to correctly interpret the statement." Alston, supra, 204 N.J. at 621-22. "[I]f the words amount to even an ambiguous request for counsel, the questioning must cease, although clarification is permitted; if the statements are so ambiguous that they cannot be understood to be the assertion of a right, clarification is not only permitted but needed." Id. at 624.
Thus, where a suspect's response is ambiguous or equivocal, the United States Supreme Court permits, and the New Jersey Supreme Court permits and in some instances requires, the interrogating officers to seek clarification from the suspect. Such clarification or questioning "'is not considered "interrogation" under Miranda, because it is not intended to "elicit an incriminating response from the suspect."'" Id. at 623 (quoting State v. Johnson, 120 N.J. 263, 283 (1990)). "The scope of that permission, however, is limited because we have allowed only 'clarification, not questions that "operate to delay, confuse, or burden the suspect in his assertion of his rights."'" Ibid. (quoting Johnson, supra, 120 N.J. at 283).
Here, before the interview began, Detective Herbert read defendant his rights under Miranda. Then the following exchange occurred:
DETECTIVE: Okay so I am going to need you to check ahh, where you're acknowledging you do understand your rights, if you do understand them, put your initials next to them. That sentence. Okay. Do you desire to waive these rights?
DEFENDANT: Uh-um, actually whatever, I need to talk to an attorney. I've been here and I haven't talk to a lawyer or anything like that. I would actually like to talk to an attorney first before we do anything. As far as writing statements or anything like that.
DETECTIVE: Ahh, I mean, if like ahh, you['re] not going to be writing a statement. I want to ask you some questions. So it is up to you, I mean, do you ahh, like I'm definitely not having you write a statement. This is just me, like I said, it is just a legal precaution before . . .
DEFENDANT: Okay. Yes.
DETECTIVE: Before I can ask those questions.
DEFENDANT: Okay I'll answer the questions.
Defendant signed a form confirming that he waived his rights under Miranda. He then answered Detective Herbert's questions.
Defendant stated that he wanted to talk to an attorney "before we do anything [a]s far as writing statements or anything like that." Defendant's statement was arguably an assertion of his Miranda rights, but it was ambiguous and equivocal as to whether he sought an attorney only before providing a written statement, or also before answering questions orally. See United States v. Mohr, 772 F.3d 1143, 1145-46 (8th Cir. 2014) (a suspect's statement that "I want my lawyer. . . . [I]f you want this recorded, I want a lawyer present," was conditional and thus ambiguous), cert. denied, ___ U.S. ___, 135 S. Ct. 1727, 191 L. Ed. 2d 695 (2015); United States v. Spruill, 296 F.3d 580, 588 (7th Cir. 2002) (a suspect's statement he wanted an attorney if he was taking a polygraph exam was a "conditional request for an attorney" and did "not constitute an unambiguous request for counsel") (citing Connecticut v. Barrett, 479 U.S. 523, 529-30, 107 S. Ct. 828, 832, 93 L. Ed. 2d 920, 928 (1987) (holding that defendant's request for an attorney before any written statement was provided did not constitute a request for an attorney for purposes of an oral confession)); see also State v. Adams, 127 N.J. 438, 446-47 (1992) (following Barrett).
The trial court found that "[d]efendant's request, which seems more broken when merely reading the typed transcript, is a much more fluid conditional request when watching the actual video recording." Having viewed the video recording, we agree. See State v. Diaz-Bridges, 208 N.J. 544, 565 (2011). --------
In State v. Wright, 97 N.J. 113 (1984), the defendant said he would not "sign any more deeds [or waivers] without a lawyer present." Id. at 119 (alteration in original). Our Supreme Court found that "the interrogating agent was under an obligation to clarify the meaning of defendant's remark before proceeding with further questioning." Id. at 120. Citing Wright, the Court in Alston, supra, reiterated that "[w]hen a suspect's words are ambiguous, this Court has permitted police to follow up by asking questions that are designed to clarify the meaning of those words." 204 N.J. at 623.
Thus, under both the United States and New Jersey constitutions, defendant's statement that he wanted an attorney before he provided a written statement was ambiguous and equivocal, and justified an effort at clarification by Detective Herbert.
Accordingly, Detective Herbert properly stopped asking defendant questions concerning the crime. Instead, Herbert clarified that defendant was not being asked to provide a written statement, that he instead would be asked questions, and that whether defendant answered questions was "up to you." Though Detective Herbert did not pose his clarification in the form of a question, we note that defendant responded to the clarifying information by interrupting Herbert to indicate that he would answer questions without first consulting with counsel. Herbert's clarification "did not exceed the scope of permissible clarification," was "neither inaccurate nor misleading," and did not "'"delay, confuse, or burden the suspect in his assertions of his rights."'" Alston, supra, 204 N.J. at 616, 623, 628 (citation omitted).
Defendant argues that Detective Herbert "conceded" at the suppression hearing that defendant's request for counsel was unambiguous. However, Detective Herbert actually testified: "Yes, it's a clear request for an attorney prior to providing a written statement." It was not an unambiguous request for an attorney before answering questions orally. The entirety of Herbert's response involved clarifying the purpose of the interview and asking if defendant still wanted to speak with counsel, because that was "up to" defendant. Moreover, Detective Herbert did not pose any questions until defendant said he would answer questions orally. Thus, we cannot say that defendant's rights under Miranda were violated, or that defendant's statement was involuntary. Accordingly, the trial court properly denied defendant's motion to suppress his statement.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION