STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. EDWARD BARRY, DEFENDANT-RESPONDENT.
Supreme Court of New Jersey
May 21, 1981
Argued October 7, 1980
86 N.J. 80
Consequently, while we disagree with the holding announced by the Appellate Division and the reasoning in support of that holding, the judgment of that court to remand the case for a hearing before a new R. 4:21 panel is affirmed, and selection of the physician member of this panel is to be conducted in accordance with the procedure that we have described above.
For affirmance—Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, SCHREIBER, HANDLER and POLLOCK—6.
For reversal—None.
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. EDWARD BARRY, DEFENDANT-RESPONDENT.
Argued October 7, 1980—Decided May 21, 1981.
Randall W. Westreich, Designated Counsel, argued the cause for respondent (Stanley C. Van Ness, Public Defender, attorney).
The opinion of the Court was delivered by
Defendant Edward Barry was convicted of felony murder and conspiracy. He was sentenced to life imprisonment for the felony murder and a consecutive term of two to three years for the conspiracy. On appeal, the Appellate Division, in an opinion reported at 171 N.J.Super. 543 (1979), reversed the judgment of conviction and ordered a new trial on the ground that defendant‘s confession, introduced into evidence at his trial, should have been excluded as the fruit of an illegal arrest. The Appellate Division also held that defendant should have been allowed to introduce into evidence the confessions of co-conspirators Mark Jackson and Walter Barry (defendant‘s brother) which did not implicate defendant as a participant in the criminal episode.1 The Appellate Division said that the confessions were statements against the penal interests of the declarants and admissible under
The State‘s proofs at trial showed the following. On January 12, 1976, defendant Edward Barry, his brother Walter Barry, Archie Murphy and Mark Jackson planned the robbery of the First Federal Savings and Loan Association of Montclair. They first met at an apartment in East Orange. Murphy supplied the guns to be used in the robbery but did not go to the bank. Defendant drove the getaway car to and from the bank. His brother Walter Barry, armed with a sawed-off shotgun, stood outside the bank as a backup man. Mark Jackson, armed with a revolver, entered the bank and committed the actual robbery which netted approximately $1,700. Included in these robbery
The next morning an anonymous phone call tip was received at Montclair Police Headquarters describing the automobile used in the robbery. On the following day, Walter Barry was apprehended while operating the car in question and brought to headquarters for questioning. In the meantime the police, possessing information concerning a suspect in another bank robbery, and having viewed a concealed bank camera videotape of the First Federal robbery, obtained a warrant for the arrest of Mark Jackson. He was arrested on the morning of January 15, 1976 in Newark and taken in for questioning. He later gave a statement implicating himself, Walter Barry and Archie Murphy in the First Federal holdup.
Based on this statement, a warrant for the arrest of Archie Murphy was issued. In the meantime, the police had also obtained a statement from Walter Barry that he and Jackson alone were involved in the First Federal robbery. On January 15, 1976, at about 7:00 p. m., the police went to an East Orange apartment building to execute the arrest warrant for Murphy. When they arrived at the building, one of the detectives saw defendant Edward Barry stаnding outside and recognized him from a prior investigation of another robbery. Defendant was placed under arrest and given Miranda warnings. The officers then entered the building, found Murphy in one of the apartments and arrested him. Money which Murphy tried to hide in a sofa as the officers entered the room was confiscated, together with additional currency found in Murphy‘s pocket.
After Murphy‘s arrival in Montсlair, a comparison of the serial numbers of the bills found in Murphy‘s possession at the time of his arrest with the bank‘s record of the “bait money” resulted in the positive identification of one of the bills. Shortly thereafter, at approximately 1:25 a. m. on January 16, 1976, Murphy gave the police a statement implicating himself, Jackson, Walter Barry and defendant in the robbery. At the time of Murphy‘s statement, defendant was still lodged in the Glen Ridge jail as a result of his arrest some six hours earlier. On the basis of the Murphy statement, defendant was returned to Montclair Police Headquarters for a court appearance scheduled for 1:00 p. m. later that day in which he was to be formally charged with homicidе.
Upon his return to Montclair Police Headquarters, defendant was given Miranda warnings once again and signed a written acknowledgment of their receipt. He was then questioned for the first time and told that Jackson, Murphy and his brother had all confessed to the robbery and that he had been implicated. Defendant was shown these confessions and reviewed their contents with Captain Charles Cummings, Detective Captain of the Montclair Police Department. He was also shown the weapons used in the robbery, as well as the deceased officer‘s gun, which had all been previously recovered by the police. At this point defendant agreed to confess and proceеded to give a full written statement of his involvement in the criminal episode.
The statement admitted defendant‘s participation in the planning and commission of the robbery. He identified Archie Murphy, Walter Barry, Mark Jackson and himself as the participants. Defendant stated that while Murphy remained at the
Defendant received a separate trial by jury and was convicted. His written statement constituted the principal evidence against him. He did not testify at trial but sought to introduce into evidence the confessions of Mark Jackson and Walter Barry which tended to exculpate him, to the extent that neither of these statements named him as a participant in the criminal episode. The Walter Barry confession stated that he (Walter Barry) had driven the car to and from the bank and that Mark Jackson was the only other person with him in the car. Jackson‘s confession stated that Wаlter Barry drove the car and that “just me and him” were in it when they drove to the bank and, after committing the robbery, returned to the apartment. Jackson‘s statement also implicated Archie Murphy in the planning of the crime. The trial court excluded these two confessions, holding that a statement was admissible under
As heretofore noted, the Appellate Division reversed the conviction, holding that defendant‘s statement should have been excluded as the fruit of an illegal arrest and that the statements of co-conspirators Walter Barry and Mark Jackson were admissi-
We consider first the admissibility of defendant‘s confession. The Appellate Division held that it was the fruit of an illegal arrest and, therefore, excluded it. 171 N.J.Super. at 547-548. We disagree. The appropriate test to be applied in this type of case is whether the confession falls on one side or the other of the line that separates confessions which resulted from an exploitation of an illegal arrest from those which were the product of the defendant‘s free will, the taint of the illegal arrest having been sufficiently attenuated. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Note, “The Fourth Amendment and Tainted Confessions: Admissibility as a Policy Decision,” 13 Houston L.Rev. 753, 771 (1976).
The inquiry for determining whether a defendant‘s statements are tainted by antecedent illegality is not a factual one, neither of foreseeability on the part of the police, nor оf causal connection (the “but for” test having been rejected) but rather is a question of judgment. Considering the purposes of the exclusionary rule in these matters (deterrence of illegal arrests and preservation of the integrity of the judiciary) and the competing purpose of discovering the truth in a criminal trial, the court is required to make a value judgment by considering three factors as they relate to those purposes: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422 U.S. at 603-604, 95 S.Ct. at 2261-2262, 45 L.Ed.2d at 427.
The United States Supreme Court recently considеred the application of these touchstone factors in Dunaway v. New
The United States Supreme Court reversed the conviction. It held that Dunaway‘s constitutional rights had been viоlated when the police, without probable cause to arrest, took defendant into custody and brought him to the police station for questioning. The Court held that the detention for custodial interrogation intruded so severely on interests protected by the Fourth Amendment as to trigger the traditional safeguards against illegal arrest. 442 U.S. at 216, 99 S.Ct. at 2258, 60 L.Ed.2d at 838. After taking into account factors such as the temporal proximity of the illegal arrest and confession, the presence of intervening circumstances and the purpose and flagrancy of official misconduct, the Supreme Court concluded that there was no intervening event which broke the connection between the illegal detention and the incriminatory statements. The giving of Miranda warnings, even though sufficient for Fifth Amendment purposes, was held not to render the connection sufficiently attenuated under Fourth Amendment analysis to permit use of Dunaway‘s statements at trial. 442 U.S. at 219, 99 S.Ct. at 2259, 60 L.Ed.2d at 840.
We conclude that application of the appropriate Supreme Court test in the instant case does not call for the exclusion of Edward Barry‘s statement as the fruit of an illegal arrest. Although defendant‘s initial detention at about 7:00 p. m. on January 15 was illegal, because the police at that time were without probable cause to arrest, there is no indication that the police attempted to question him then. Some six hours later,
We hold that these intervening independent circumstances which preceded defendant‘s confession effectively purged the taint of his illegal arrest. Statements following an illegal arrest must be excluded from evidence only if they are causally related to the invasion of the suspect‘s rights. The instant facts do not present the close causal connection between the illegal seizure and the сonfession found in Dunaway. 442 U.S. at 218-219, 99 S.Ct. at 2259-2260, 60 L.Ed.2d at 839-840 (1979). The occurrence of other independent causative events including Murphy‘s confession, which directly implicated defendant, and recovery of the guns, which were shown to defendant, severed any possible chain of causation between the original illegal arrest and defendant‘s subsequent confession.3
We therefore hold that under the facts of this case the State has met its burden of establishing that the confession was the product of the defendant‘s free will, rather than the result of the exploitation of an illegal arrest. Considering the purpose and circumstances of the arrest, the lack of temporal proximity between the arrest and defendant‘s subsequent statement, and the occurrence of other independent causative events, we are satisfied that defendant‘s confession was properly admitted at trial.
Defendant‘s further contentiоn, raised for the first time before the Appellate Division, that his confession should be
The second question presented is whether defendant should have been allowed to introduce into evidence the confessions of Waltеr Barry and Mark Jackson. As heretofore noted, these confessions tended to exculpate defendant since they identified Walter Barry as the driver of the car and also indicated that no one else was in the vehicle except Jackson when they drove to the bank and returned to the apartment after the robbery.
Preliminarily, it is clear that the trial court was in error in ruling that a statement against interest is not admissible under
Thе Appellate Division, in holding that defendant should have been allowed to introduce these confessions into evidence, relied on State v. Abrams, supra. Abrams involved a joint trial of Barry Abrams and a co-defendant Chenille Smith on a charge of possession and distribution of cocaine. The State‘s main witness was an undercover detective who testified that he had purchased cocaine from Smith and had seen her purchase it from Abrams. Smith had confessed that, “I, Chenille Smith, sold Ernest [the detective] a bag of cocaine, but I didn‘t and never got nothing from [Abrams].” 140 N.J.Super. at 235.
In the present case, the State argues that those portions of the statements of Walter Barry and Mark Jackson which tend to exculpate defendant are clearly separable from the inculpatory parts and not in any sense against the penal interests of the declarants. The State believes that the exculpatory statements were nothing more than a deliberate attempt to shield the other confederates and not integral parts of the confessions.4 Arguably, under the standard established in State v. Abrams and summarized above, the statements should have been admitted. We need not, however, evaluate the merits of the State‘s position, beyond what has been said in State v. Abrams, because even were we to conclude that the statements should have been admitted into evidence, we would nevertheless uphold the conviction on the ground of harmless error.
We agree with the Appellate Division‘s disposition of the other issues raised by defendant and have also considered the claim of excessive sentence. The life sentence for felony murder was mandatory. Adding on an additional two to three years for the conspiracy in the light of this planned criminal episode was not excessive or unduly punitive. The judgment of the Appellate Division is reversed and the judgment of conviction, including sentence, reinstated.
PASHMAN, J., dissenting.
Defendant‘s statement was the only evidence admitted at the trial connecting him to the crimes of which he was convicted. As the State concedes before this Court, defendant was arrested without probable cause in violation of his Fourth Amendment rights. Defendant was then illegally detained for eighteen hours, without seeing аnyone except law enforcement officers. Before his arraignment, he was told by the police that several participants in the crime had made statements implicating him. He then gave an inculpatory statement. The majority holds that the occurrence of other causative events including Murphy‘s
I
The primary purpose of the exclusionary rule is to deter violations of the Fourth Amendment. The rule “compel[s] respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). In determining when it is necessary to exclude an incriminating statement obtained after an unreasonable search or seizure, the Supreme Court has focused on the question whether “the connection between the lawless conduct of the police and the discovery of the сhallenged evidence has ‘become so attenuated as to dissipate the taint.‘” Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). By focusing on “the causal connection between the illegality and the confession,” Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975), the attenuation doctrine serves to indicate when exclusion is necessary to further the purpose of deterrence. See Dunaway v. New York, 442 U.S. 200, 217-18, 99 S.Ct. 2248, 2258-59, 60 L.Ed.2d 824 (1979). When there is a close causal connection between an illegal arrest and a confession, it is likely that the police could have foreseen that the statement would be a product of their illegal conduct and, therefore, that the desire to obtain a confession might have been a motivating factor behind the initial arrest. In such
The parallels between the circumstances in Brown v. Illinois, supra, and this case are striking. Brown was arrested without probable cause as a suspect in a murder investigation. At the station house, following a period of unbroken detention, the police brought out their file on the investigation and confronted Brown with the information they had obtained. After notifying Brown of his Miranda rights, the officers told him that they knew of an incident in which he had fired a shot from a revolver into the ceiling of a poolroom. They then informed him that a bullet extracted from the ceiling had been taken to the laboratory for comparison with the bullets taken from the murder victim. Brown then agreed to give a statement. 422 U.S. at 594, 95 S.Ct. at 2257.
In Brown the Supreme Court identified three factors to be considered in determining whether exclusion of a confession obtained during an illegal detention is necessary. These are the “temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.” Id. at 603-04, 95 S.Ct. 2261-62 (citation and footnotes omitted). The Court stated that the burden of showing admissibility rests on the prosecution. Id. at 604, 95 S.Ct. at 2262.
Applying its three-part test to the facts of the case, the Supreme Court concluded that the State had not met its burden of showing that Brown‘s statement was admissible. The “statement was separated from his illegal arrest by less than two hours, and there was no intervening event of significance whatsoever.” Id. The Court reached this conclusion even though Brown had confessed only after learning of the evidence against him. The Court also found that the illegality of the arrest had “a quality of purposefulness. The impropriety of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their
The Supreme Court‘s reasoning and holding in Brown, completely ignored by the majority, require suppression of Barry‘s statement in this case. First, although Barry made his statement after eighteеn hours of detention instead of two, the difference is not significant because it was a period of unbroken custody. Indeed, one case cited in Brown to illustrate the relevance of the time between an arrest and a statement, 422 U.S. at 603 n.8, 95 S.Ct. at 2262 n.8, ordered the suppression of a statement made forty-two hours after the illegal arrest. See Hale v. Henderson, 485 F.2d 266, 267-69 (6th Cir. 1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d 489 (1974). The events occurring during the detention, not the mere passage of time, are the significant factors in determining whether exclusion is necessary because the illegal arrest has not been attenuated. See 3 W. LaFave, Search and Seizure § 11.4 at 633-34 (1978); Comment, The Fourth Amendment and Tainted Confessions: Admissibility as a Policy Decision, 13 Hous.L.Rev. 753, 764-66 (1976). As Justice Stevens has said, “[i]f there are no relevant intervеning circumstances, a prolonged detention may well be a more serious exploitation of an illegal arrest than a short one.” Dunaway v. New York, supra, 442 U.S. at 220, 99 S.Ct. at 2260 (concurring opinion). Since the mere passage of time after an illegal arrest is by itself not determinative, the other two factors—the presence of intervening circumstances and the purpose and flagrancy of the police conduct—are the crucial issues in the inquiry.
The majority holds that the disclosure of Archie Murphy‘s confession and the display of weapons used in the crime to the defendant constituted an intervening event breaking the causal chain between the illegal arrest and defendant‘s confession. Ante at 89. I fail to see the rеlevance of this event to the attenuation doctrine, the purpose of which is to determine whether exclusion of a challenged piece of evidence will serve as a deterrent to similar police misconduct. Although the Supreme
The conclusion that suppression is necessary here is supported by the third factor in Brown: the purpose and flagrancy of the police conduct. Although the manner in which defendant was arrested was not so flagrantly abusive of personal liberty and privacy as the arrest in Brown, the Supreme Court‘s decision in
At various points in its opinion, the majority observes that because of Archie Murphy‘s incriminating statement, the police had probable cause to hold defendant by the time they took his confession. Ante at 89 & 90. The majority wisely declines to hold that defendant‘s statement is admissible for this reason, ante at 89 & 90, although its apparent approval of the questionable decisions cited is troubling. “It is axiomatic that hindsight may not be employed in determining whether a prior arrest or search was made upon probable cause.” 1 W. LaFave, supra, § 3.2(d)
II
To summarize, Brown v. Illinois requires the suppression of defendant‘s confession as the fruits of an illegal arrest. Such suppression is necessary to deter future arrests based on nothing more than suspicion. Because I believe that this important principle of law requires the reversal of defendant‘s conviction, I express no views on the question whether the trial court‘s refusal to admit the statements of Walter Barry and Mark Jackson under the hearsay exception of
I would affirm the judgment of the Appellate Division.
For reversal and reinstatement—Chief Justice WILENTZ and Justices SULLIVAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK—6.
For affirmance—Justice PASHMAN—1.
Notes
It should also be noted that defendant was questioned for the first time and his statement taken only after he was being legally held as a prime suspect in the robbery-murder on the basis of the Murphy confession.
While we need not, and do not, base our decision today on that fact, the Second Circuit has strongly indicated that confessions are admissible, despite the prior illegal arrest, if given at a time when probable cause in fact existed. United States v. Morris, 451 F.Supp. 361 (E.D.N.Y.1978), vacated
and remanded, 597 F.2d 341 (2d Cir. 1979). See also People v. Calhoun, 78 A.D.2d 658, 432 N.Y.S.2d 226 (App.Div.1980).