200 N.J. Super. 448 | N.J. Super. Ct. App. Div. | 1984
On June 10, 1984, at 9:05 in the evening, a Trenton police officer observed a motor vehicle being driven without its head
At headquarters he was searched and a small manila envelope containing suspected marijuana was taken from his pants pocket.
These proceedings were recorded on video tape. It was clear at this point the defendant refused to take the test and informed the officer that he wanted an attorney.
Defendant does not challenge the lawfulness of the motor vehicle stop, however, he contends that once he was placed under arrest at the scene of the stop, he should have been given his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He further contends that at the police station, despite his repeated requests to consult with an attorney, he was required to answer questions and perform a number of balancing tests, all of which should be suppressed.
Defendant relies upon the recent decision in Berkemer v. McCarty, — U.S. —, 104 S.Ct. 3138, 82 L.Ed.2d 317 (July 2, 1984), in which the United States Supreme Court held inter alia, “that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested.” The Court made it clear that the procedural safeguards enunciated in Miranda only arise at a road side stop when the treatment by the officer of the driver is “the functional equivalent of formal arrest.”
As noted previously the stop in question occurred on June 10, 1984, prior to the decision in Berkemer v. McCarty, supra, which was rendered on July 2, 1984. Defendant argues that this Court should give limited retroactive application to Ber-kemer to the present case, as it was pending at the time of that decision, and therefore, suppress any statements or conduct engaged in after the defendant was arrested as he did not receive his Miranda warnings.
In determining the question of retroactivity, this court must decide whether or not the Berkemer decision is a new principle of law representing a clear break with the past. United States v. Johnson, 457 U.S. 537, 549, 102 S.Ct. 2579, 2587, 73 L.Ed.2d 202 (1982). In State v. Gervasio, 94 N.J. 23 (1983), our Supreme Court adopted the clear break with the past test enunciated in Johnson. In Gervasio the court held
Defendant contends that Berkemer is not a clear break with the past since the United States Supreme Court has long held that once a person is the subject of custodial interrogation, he must be given his Miranda rights. Accordingly, the decision in Berkemer is merely a reaffirmation of that rule in the context of a custodial interrogation following an arrest for a motor vehicle violation. This argument has a fatal flaw. The law in New Jersey, prior to Berkemer, clearly was to the contrary with regard to motor vehicle arrests. Our Supreme Court in State v. Macuk, 57 N.J. 1 (1970), held that “absent contrary indication by the United States Supreme Court Miranda rules are inapplicable to all motor vehicle violations.” Id. at 15-16. See also State v. Lewin, 163 N.J.Super. 439 (App.Div.1978) [statements obtained during police investigation at the scene and at police headquarters concerning circumstances of the accident and consumption of intoxicants held admissible]; and State v. Mann, 171 N.J.Super. 173 (App.Div.1979) [Macuk applied although vehicle was believed to be stolen and defendant was stopped for further investigation].
Within the schema of constitutional adjudication, where the United States Supreme Court has not acted, our Supreme Court was entitled to make its own determination whether the-principles in Miranda would apply to motor vehicle arrests in this state. State v. Dilley, 49 N.J. 460, 470 (1967); State v. Coleman, 46 N.J. 16, 37 (1965). Indeed, certiorari was granted in Berkemer specifically “to resolve [the] confusion in the
The Court, therefore, concludes that the holding in Berkemer must be given prospective application only and does not apply to the present case.
It should be noted that even if Berkemer were to be given limited retroactive application to the present case, defendant’s statements at the scene of the stop, prior to being placed under arrest, are still admissible. The Court in Berkemer emphasized that motorist stops are temporary and brief in nature and commented:
“the usual traffic stop is more analogous to a so-called ‘Terry stop’, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), than to a formal arrest____
The comparatively non-threatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda. [Berkemer, supra, 104 S.Ct. at 3150-51.]
Justice Marshall, delivering the opinion of the Court in Ber-kemer, made it clear that a single police officer asking a modest number of questions and requesting the performance of simple balancing tests “at a location visible to passing motorists, cannot be characterized as the functional equivalent of formal arrests.” Id. at 3152.
The defendant’s final contention is that his statements and conduct at the station house should be suppressed as his requests to consult with counsel were denied, in violation of his Sixth Amendment right to counsel.
There is no question that defendant was not entitled to consult with counsel in order to make his decision as to whether he would take the breathalyzer. In State v. Pandoli, 109 N.J.Super. 1, 4 (App.Div.1970), the Appellate Division held, “as a matter of law, defendant had no right to have the advice of an attorney before determining whether he would accede to the
Likewise, the nonverbal conduct which defendant was required to engage in, i.e., various psycho-physical tests, would not be subject to suppression as they were also nontestimonial in nature. Macuk, supra, 57 N.J. at 14.
In addition to the breathalyzer test, defendant was questioned from a standardized form used in conjunction with the breathalyzer (this form has no statutory authorization). This questionnaire clearly elicited testimonial responses, a number of which were incriminatory: i.e., would be used against him in a subsequent drunk driving hearing. Therefore, once defendant in that custodial setting invoked his right to counsel it was improper for the arresting officer to ignore that request. Further questioning concerning the incident for which he was arrested should have been terminated at that point. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Accordingly, those verbal responses must be suppressed.
Defendant does not contest the legality of the seizure of the manila envelope from his person at the station since it was incidental to a valid arrest.
Defendant had recently been convicted of drunk driving and was facing a possible second conviction.