Opinion
DOCKET NO. A-1507-12T3
07-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TYRONE SMITH, a/k/a LAMONT RICHARDSON, TYRONE J. SMITH, TYRONE JUJAN SMITH, TY SMITH and TYRON JUJAN SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Rachel G. Cook, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-09-1010. Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Rachel G. Cook, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following the denial of his motions to find his statements to the police and consent to search his apartment to have been given involuntarily, defendant Tyrone Smith pled guilty to third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, preserving his right to challenge the admission of his statements on appeal. In accordance with a negotiated agreement, the judge sentenced defendant to a five-year term of imprisonment with three years of parole ineligibility. Finding no basis to disturb the motion judge's factual findings or legal conclusions, we affirm.
Proceeding on an anonymous tip, Detective Sergeant Zappley set up surveillance and watched as co-defendant Allen McCray engaged in six hand-to-hand transactions in front of an apartment building in Trenton. After back-up tactical units arrested three of the participants in possession of crack cocaine, Zappley directed the tactical units to arrest McCray on second-degree drug charges.
As officers followed McCray into the building and ordered him to stop, McCray entered an apartment and locked the door behind him. Hearing a loud commotion inside and getting no response to their demands to open the door, the officers kicked it in. When they entered the tiny apartment, the officers saw through a haze of marijuana smoke two people escape out of a window and McCray emerge from a doorway at the rear of the apartment. While other officers ran outside to give chase, Detective Schiaretti arrested McCray, noticing as he did so multiple bags of marijuana and drug packaging in plain view. After handcuffing McCray, Schiaretti moved toward the closed door through which McCray had come. Hearing a toilet flush as defendant refused Schiaretti's demand to open the door, the officers removed the bottom half of the door to the bathroom and arrested defendant without incident.
Schiaretti handcuffed defendant and led him to sit on a wooden chair while Schiaretti called Sergeant Zappley. Schiaretti reported police were inside the apartment having had to force open the door in their pursuit of McCray and told Zappley he needed to join them there. When Zappley asked whether the tenant was present, Schiaretti asked defendant, "Is this your apartment?" Defendant answered "yes," and Schiaretti told Zappley, "Yes, the tenant's here." Schiaretti explained that if no one was present who could consent to a search, the officers would need to make arrangements to apply for a warrant. He testified that he asked defendant "if it was his apartment, pretty much, for information purposes. It wasn't really part of the investigation at th[at] point."
When Zappley entered the apartment a short while later, he saw bags of marijuana, two digital gram scales, cocaine on the counter in the kitchen area and drug paraphernalia littered across the apartment. As defendant watched Zappley survey the scene he said, "Everything in here is mine." Zappley provided him with his Miranda rights and asked whether he would consent to a search of his apartment. Defendant asked whether the officers needed a search warrant. Zappley advised defendant that if he did not consent, the officers would apply for a search warrant. Defendant gave consent to a search of his apartment and signed a form to that effect witnessed by Zappley, Schiaretti and Schiaretti's partner.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After hearing the testimony, the Law Division judge denied defendant's motions. The judge found the testimony of the officers both consistent and credible and defendant's story that the officers never identified themselves, leading him to believe he was the victim of a home invasion, unworthy of belief. Although finding that defendant was in custody when Detective Schiaretti asked whether the apartment was his, the judge rejected defendant's argument that the question amounted to a custodial interrogation. Viewed in context, the judge found the question was not designed to elicit incriminating information but only to allow the officers to know whether they could appropriately ask defendant for consent to search the apartment.
The judge further found that defendant's consent to search his apartment was freely given, noting the officers went beyond defendant's oral agreement to secure his signature on a written consent form. He rejected defendant's contention that the officers denied him his reading glasses, finding that even were that so, it would be of no moment because Sergeant Zappley read him the form word by word. The judge found on the basis of the credible testimony that based on defendant's prior arrests and given "narcotics were in plain view," defendant "recognized the gravity and reality of the situation" and "consented to the search rather than delay the inevitable."
Defendant raises the following issues on appeal.
POINT I
CONTRARY TO THE TRIAL COURT'S DECISION, PRE-MIRANDA POLICE QUESTIONING OF THE HANDCUFFED DEFENDANT, SURROUNDED BY MARIJUANA AND DRUG PARAPHERNALIA, WAS DESIGNED TO ELICIT AN INCRIMINATORY RESPONSE. THEREFORE, THE PRE-MIRANDA STATEMENTS, AS WELL AS THE POST-MIRANDA CONSENT TO SEARCH, SHOULD HAVE BEEN SUPPRESSED.
POINT II
CONTRARY TO THE TRIAL COURT'S DECISION, DEFENDANT, WHO WAS HANDCUFFED AND SURROUNDED BY ILLEGAL DRUGS AND PARAPHERNALIA, DID NOT VOLUNTARILY CONSENT TO THE SEARCH OF THE APARTMENT.
Our standard of review on a motion to suppress is limited. We defer to the trial court's factual findings on the motion, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). Our review of the trial court's application of the law to the facts, of course, is plenary. State v. Rockford, 213 N.J. 424, 440 (2013). Applying those standards here, we find no cause to disturb the Law Division's factual findings or legal conclusions on these motions.
We reject defendant's contention that the single question posed by Detective Schiaretti to defendant constituted the "question-first, warn-later" interrogation procedure condemned in State v. O'Neill, 193 N.J. 148, 154-55 (2007), and State v. Yohnnson, 204 N.J. 43, 60-61 (2010). Miranda warnings are required "'when an individual is taken into custody or otherwise deprived of his [or her] freedom by the authorities in any significant way and is subject to questioning.'" State v. Stott, 171 N.J. 343, 364 (2002) (quoting Miranda, supra, 384 U.S. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726). It is, however, well established that routine questions to persons in custody seeking name or address for booking or bail purposes are generally considered ministerial in nature and outside the privilege against self-incrimination. State v. Cunningham, 153 N.J. Super. 350, 352 (App. Div. 1977); see also State v. Barnes, 54 N.J. 1, 6 (1969), cert. denied, 396 U.S. 1029, 90 S. Ct. 580, 24 L. Ed. 2d 525 (1970) (holding single question without Miranda warnings while in police custody during an arrest and car search not part of the investigation that led to the defendant's apprehension nor part of a series of investigatory queries and not the type of question that centered blameworthiness on her, did not violate defendant's Fifth Amendment rights); State v. Ramos, 217 N.J. Super. 530, 537 (App. Div.) (holding that although police knew defendant wore glasses, asking him where his glasses were while in custody did not constitute interrogation), certif. denied, 108 N.J. 677 (1987).
Detective Schiaretti testified that he asked defendant whether the apartment was his solely for the purpose of determining whether police could seek his permission to search the apartment or needed to apply for a search warrant in the first instance. He did not ask defendant whether the drugs or paraphernalia in plain view belonged to him, a question that would clearly have run afoul of Miranda, but only if it was his apartment. We agree with the trial judge that under the circumstances, this single innocuous question, which did no more than confirm defendant's address, was ministerial in nature and outside the constitutional protection against self-incrimination. See Cunningham, supra, 153 N.J. Super. at 354. Because defendant's acknowledgment of his tenancy was not the result of custodial interrogation, there is no question but that his subsequent volunteered statement to Sergeant Zappley that "Everything in here is mine," was admissible in evidence. See State v. Brabham, 413 N.J. Super. 196, 210-11 (App. Div.) (holding Miranda has no application to volunteered statements), certif. denied, 203 N.J. 440 (2010).
We reject defendant's argument that asking defendant whether he was in possession of the apartment was the same as asking if he was in possession of the drugs. We note in this regard that police found a semi-automatic handgun in a cabinet in the course of their search of the apartment. While defendant was indicted on charges of possession of a weapon while committing a drug offense, N.J.S.A. 2C:35-5, 2C:39-4.1a, and certain persons not to have firearms, N.J.S.A. 2C:39-7b, the prosecutor advised the judge that because of the persons who jumped from the window as the police entered the apartment, the State determined there was insufficient evidence that the gun belonged to defendant to proceed against him on the weapons charges. --------
Finally, we have no cause to overturn the trial judge's well-supported finding that defendant's consent to search was voluntarily obtained. The judge found that Sergeant Zappley clearly explained to defendant that he did not have to consent to the search of his apartment and carefully reviewed with him the consent form, which defendant signed and the officers witnessed. Those factual findings are supported by sufficient, credible evidence in the record, see State v. Locurto, 157 N.J. 463, 470-71 (1999), and the judge's findings as to the credibility of the witnesses are entitled to our deference Yohnnson, supra, 204 N.J. at 62.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION