STATE OF NEW JERSEY IN THE INTEREST OF N.S. (FJ-20-0416-18, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5321-17T1
STATE OF NEW JERSEY IN
THE INTEREST OF N.S.,
a Juvenile.
Submitted February 25, 2020 – Decided March 10, 2020
Before Judges Gilson and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FJ-20-0416-18.
Joseph E. Krakora, Public Defender, attorney for
appellant N.S. (Frank M. Gennaro, Designated
Counsel, on the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent State of New Jersey (Timothy
Mark Ortolani, Special Deputy Attorney
General/Acting Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
N.S., a juvenile, appeals her adjudications of delinquency for acts which,
if committed by an adult, would have constituted the offenses of third-degree
possession of oxycodone, a controlled dangerous substance (CDS), and
possession of less than fifty grams of marijuana, a disorderly persons offense.
The Family Part judge sentenced N.S. to a probationary term of eighteen months,
community service, and mandatory fines and penalties.
The sole issue on this appeal is whether the trial judge erred in granting
the State's motion to admit N.S.'s statements following an evidentiary hearing.
More specifically, N.S. claims "she was subjected to a custodial interrogation,"
raising one point for our consideration:
THE STATEMENTS MADE BY N.S. SHOULD
HAVE BEEN SUPPRESSED BECAUSE THE
POLICE FAILED TO CONSIDER HER JUVENILE
STATUS, AND FAILED TO PROPERLY
ADMINISTER THE MIRANDA WARNINGS [1] AND
BECAUSE THE STATE FAILED TO PROVE THAT
N.S. MADE A KNOWING, INTELLIGENT,
VOLUNTARY WAIVER OF HER RIGHTS.
Because we conclude police omitted a critical right when advising N.S. of her
Miranda rights, we vacate the order granting admission of her statements and
remand the matter to the trial court for further proceedings, thereby rendering
moot N.S.'s claim that she did not voluntarily waive her rights.
1
Miranda v. Arizona, 384 U.S. 436 (1966). N.S. did not raise before the trial
judge that police omitted one of the Miranda warnings.
A-5321-17T1
2
I.
At the hearing, the State presented the testimony of two Roselle Park
police officers: Alexander Lanza, who administered the Miranda warnings to
N.S.; and John Fitzgerald, who subsequently questioned N.S. The State moved
into evidence the video recording of the roadside encounter from Lanza's body
cam.2 N.S. did not testify or present any evidence.
At about 3:00 a.m. on August 20, 2017, Fitzgerald stopped a car for a
traffic violation. N.S. – then seventeen and a half years old – was seated in the
back of the vehicle; a male passenger was seated in the front. Relevant here, the
driver told Fitzgerald both passengers were juveniles. Fitzgerald asked the
occupants "multiple times" to disclose their ages, but "[n]obody said an age."
After detecting the odor of alcohol emanating from the vehicle, Fitzgerald
ordered the driver out of the car, performed field sobriety tests, and ultimately
arrested her for driving while intoxicated. By that time, Lanza and another
officer had arrived as backup. At the driver's request, Fitzgerald permitted her
to return to the car to speak with the front seat passenger, whom the driver
2
Neither party moved to admit the transcript of Lanza's body-cam video, or the
video recording from Fitzgerald's body cam and its accompanying transcript.
But, both transcripts were provided to the judge prior to the hearing and he
considered them when rendering his decision.
A-5321-17T1
3
claimed was her brother.3 Fitzgerald cut short the encounter when the driver
became "belligerent . . . yelling at [both] occupants to get everything out of the
car."
When the passenger door was opened, Fitzgerald detected the odor of
marijuana. N.S. and the other passenger were ordered out of the car. Fitzgerald
instructed N.S. to place the purse she was holding back inside the car because
"[a]t th[at] time, it was a narcotics investigation," and the purse was "to be
searched for narcotics" and "any weapons" that N.S. "could [have] use[d] to
harm [the officers] or somebody else." N.S. complied and stood next to
Fitzgerald's patrol car as instructed. Because Lanza then "observed some
marijuana" near the driver's seat, he advised N.S. of her Miranda rights. After
Lanza advised N.S. had the right to remain silent, N.S. interrupted Lanza and
asked whether she was being arrested. Lanza responded that police "didn't know
. . . if anybody was being placed under arrest at that time. . . . [They] were just
conducting an investigation."
Lanza testified as to his recollection of the warnings he administered to
N.S., stating: "[S]he had the right to remain silent. Anything that she [sic] could
3
Police later determined the front-seat passenger was neither the driver's
brother nor a juvenile.
A-5321-17T1
4
be held against her in a court of law. That she had the right to have an attorney
present . . . during any questioning. And that she was able to stop questioning
at any time."4 (Emphasis added). But, Lanza's body-cam video revealed the
officer did not advise N.S. that she could cease police inquiry.
Lanza asked N.S. whether she understood her rights, but he did not ask
whether she waived her right to remain silent. Lanza did not question N.S. about
any contraband found in the car. Instead, they discussed N.S.'s concerns about
removing her "stuff" from the car and how she would get home. Lanza told N.S.
he was not sure what the "outcome" would be and instructed her to sit on the
curb. Lanza testified he administered Miranda warnings "just to err on the side
of caution." On cross-examination he clarified: "Because CDS was seen in
plain view" he "just wanted to make sure that if [he] passed her along to [the
other officers] who were conducting the CDS investigation, that she was
advised." Lanza and Fitzgerald both testified none of the occupants w as free to
leave during the motor vehicle stop.
4
During cross-examination, Lanza acknowledged he administered the warnings
from memory. Defense counsel complimented Lanza for doing so without
utilizing a Miranda card and made no inquiry about the sufficiency of the
warnings.
A-5321-17T1
5
In the meantime, Fitzgerald apparently searched the purse and found "a
pill bottle with weed[] and pills." 5 Fitzgerald then asked N.S., who was standing
uncuffed next to his patrol car, whether the purse and its contents belonged to
her. N.S. acknowledged she owned the purse, but said she "just started throwing
everything in [t]here." Fitzgerald had overheard Lanza administer the warnings
to N.S., but Fitzgerald did not confirm – with Lanza or N.S. – that she had
waived her rights before questioning her. Fitzgerald's inquiry occurred about
twenty minutes after he initially stopped the vehicle.
Following summations, the trial judge issued an oral decision, granting
the State's motion to admit N.S.'s statements at trial. The judge found N.S. was
"detained at [the] time" but "[s]he was not in custody" when she provided her
statements. Rather, N.S. "was questioned at the traffic stop . . . to find out basic
information." Further, "all the questions only pertain[ed] to the purse and its
. . . contents." According to the judge, "even if [N.S.] was in custody, she was
read her Miranda rights and she clearly and voluntarily [and] knowingly waived
5
Fitzgerald searched the purse before ascertaining the owner. Cf. State v.
Suazo, 133 N.J. 315, 322 (1993) (recognizing police should determine which
occupants of a vehicle own bags found therein before obtaining consent from
the driver to search the bags). N.S. did not move to suppress any evidence seized
from the car, and that issue is not before us. We therefore express no opinion
regarding the validity of the search.
A-5321-17T1
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her Miranda rights [as] shown on the body cam." The court concluded that "the
totality of the circumstances . . . makes it clear [N.S.] did not need a parent
present while making these statements" and N.S.'s "waiver of her Miranda rights
was completely voluntary."
II.
We deferentially review a trial court's factual findings regarding a
defendant's waiver of his or her right to remain silent. See State v. Tillery, 238
N.J. 293, 314 (2019). Those findings should be disturbed only if they are "so
clearly mistaken that the interests of justice demand intervention and
correction." Ibid. (internal quotation marks omitted). Legal conclusions,
however, are reviewed de novo. Ibid.
Because Lanza administered Miranda warnings to N.S., we briefly review
the trial judge's initial determination that warnings were not necessary. In doing
so, we agree with the judge that brief roadside questioning of a motorist during
a traffic stop ordinarily is not considered custodial interrogation and, as such,
does not require administration of Miranda warnings. See, e.g., Berkemer v.
McCarthy, 468 U.S. 420, 439-40 (1984) (recognizing questioning during the
course of a brief routine traffic stop – unlike a police station interrogation – is
not sufficiently coercive to implicate the necessity of Miranda warnings). Our
A-5321-17T1
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state courts have adhered to the Berkemer reasoning in determining whether
there is a need to administer Miranda warnings during the course of a routine
traffic stop. See, e.g., State v. Reininger, 430 N.J. Super. 517, 537 (App. Div.
2013); see also State v. Hickman, 335 N.J. Super. 623, 631 (App. Div. 2000)
("Roadside questioning of a motorist is not transformed into 'custodial
interrogation' that must be preceded by Miranda warnings simply because a
police officer's questioning is accusatory in nature or designed to elicit
incriminating evidence.").
Unlike the defendants in Berkemer, Reininger, and Hickman, however,
N.S. was administered her rights after Lanza observed marijuana in the vehicle.
As Lanza candidly acknowledged, he "wanted to make sure that if [he] passed
[N.S.] along to [the other officers] who were conducting the CDS investigation,
that she was advised" of her rights. Indeed, Lanza and Fitzgerald both
acknowledged the motor vehicle stop escalated to a narcotics investigation when
they observed potential CDS in plain view. Although Fitzgerald's questioning
of N.S. was limited in scope and duration, he conducted the inquiry after CDS
was found in the car and the questions he asked were designed to elicit
inculpatory statements.
A-5321-17T1
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We therefore disagree with the trial judge that the questions about the
purse and its contents were designed to determine "basic information." Because
N.S. was a suspect of that investigation, Miranda warnings were a necessary
requirement prior to any questioning about the drugs found in the vehicle. Cf.
State v. Timmendequas, 161 N.J. 515, 614-15 (1999) ("If the questioning is
simply part of an investigation and is not targeted at the individual because she
or he is a suspect, the rights provided by Miranda are not implicated."). In sum,
N.S. was not free to leave, and the police inquiry exceeded ministerial
questioning. Accordingly, for all intents and purposes, N.S. was in custody and
Miranda warnings were required.
Nonetheless, under the circumstances of this case, it was not necessary for
police to administer the warnings to N.S. in the presence of a parent. Although
we are mindful that our Supreme Court has recently reaffirmed the requirement
that police make a reasonable effort to have a parent or guardian present during
the administration of Miranda rights to juveniles, State in Interest of A.A., ___
N.J. ___, ___ (2020) (slip op. at 22), N.S. failed to respond to Fitzgerald's
request to produce her identification or advise him of her age. And, as the judge
correctly noted, the driver told Fitzgerald both passengers were juveniles, but
police later learned at the scene that the male passenger was an adult. Further,
A-5321-17T1
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N.S. was six months shy of her eighteenth birthday when she was arrested.
According to the judge, who observed Lanza's interactions with N.S. on the
body-cam video, she "understood her rights and presented no indication she
needed the presence of her parents or guardian before speaking" to police. We
therefore discern no impropriety in questioning N.S. at the roadside stop without
a parent or guardian present.
We next turn to N.S.'s argument that police failed to properly administer
the Miranda warnings. In particular, she claims Lanza omitted the "fifth
warning," that she could exercise her rights at any time during the interrogation.
Because N.S. did not argue before the trial judge that Lanza omitted a critical
right, we view her arguments on this contention through the prism of the plain
error standard. 6 R. 2:10-2. Under that standard, "[a]ny error or omission shall
be disregarded by the appellate court unless it is of such a nature as to have been
clearly capable of producing an unjust result . . . ." Ibid.; see also State v. Bey,
112 N.J. 45, 63 (1988) (applying the plain error standard where the defendant
objected to the admissibility of his inculpatory statement for the first time on
6
In its responding brief, the State neither addresses N.S.'s failure to raise the
impropriety of the administration of her Miranda rights before the trial judge,
nor argues that the failure is inconsequential. Instead, the State maintains the
trial judge correctly concluded N.S. voluntarily waived her rights.
A-5321-17T1
10
appeal). When applying the plain error doctrine to evidence that should have
been excluded, "the error will be disregarded unless a reasonable doubt has been
raised whether the [factfinder] came to a result that it otherwise might not have
reached." State v. R.K., 220 N.J. 444, 456 (2015).
During custodial interrogation, a suspect must be advised of the following
panoply of rights: (1) the right to remain silent; (2) that any statements made
may be used against her in a court of law; (3) the right to counsel during
questioning; (4) the appointment of counsel if she cannot afford an attorney; and
(5) the ability to assert those rights at any point during the interrogation. See
Tillery, 238 N.J. at 315 (citing Miranda, 384 U.S. at 479). Recently, we
observed the failure to give complete warnings may constitute a violation that
warrants suppression of the statement. See State v. Hager, ___ N.J. Super. ___,
___ (App. Div. 2020) (slip op. at 13).
In Hager, police arrested defendant in his apartment, following a report
that he had threatened to shoot his landlord's son. Id. at 4. While in the patrol
vehicle, police began administering Miranda warnings, but the defendant
repeatedly interrupted the officer, who was unable to complete the warnings. Id.
at 4-7. Accordingly, the officer did not advise the defendant that "if he could
not afford an attorney, one would be provided to him." Id. at 7. Disagreeing
A-5321-17T1
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with the trial judge, we concluded the substance of the defendant's Miranda
rights was not conveyed, warranting exclusion of the defendant's statements at
trial. Id. at 11-12. In doing so, we recognized "omission of a right has never
been countenanced in our courts." Id. at 11.
Here, Lanza failed to advise N.S. she had the right to assert her privilege
and remain silent at any point during the questioning. Although Fitzgerald's
questioning was brief, it occurred after Lanza had administered the warnings,
advised N.S. she was not arrested, and engaged in an innocuous conversation
with her. Although we recognize "Miranda has become embedded in routine
police practice to the point where the warnings have become part of our national
culture[,]" Dickerson v. United States, 530 U.S. 428, 443 (2000), N.S. had never
before been arrested 7 and, as such, she was not personally familiar with the
warnings. By omitting the fifth warning, police did not "adequately convey[]
the substance of the warnings." Hager, slip op. at 2.
We therefore conclude the Miranda requirements were not satisfied here.
We hasten to add, we mean no criticism of the trial judge, who was not presented
7
Prior to testimony, defense counsel asked the trial judge to take judicial notice
of N.S.'s lack of prior arrests. See N.J.R.E. 201(b)(4). The judge did not
formally rule on that application, but he analogized N.S.'s circumstances to those
of the juvenile in State v. Presha, 163 N.J. 304, 315 (2000), recognizing the
significance of a juvenile's "previous encounters with the law."
A-5321-17T1
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with N.S.'s newly-minted challenge to the propriety of the Miranda warnings.
Nonetheless, because admission of N.S.'s statements was "clearly capable of
producing an unjust result," R. 2:10-2, they should have been excluded at trial.
Reversed and remanded. We do not retain jurisdiction.
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