State vs Wright: Intimidation and Psychological Tools Used by Police Prior to Miranda Warnings

Submitted by New Jersey Criminal Attorney, Jeffrey Hark

State vs. Wright Appellate Division February 29, 2016 (Approved for Publication)

The key to this part of the decision is the appellate courts recognition of the psychological warfare tools used by the police to intimidate and cajole arrestees into admitting anything, anything between the time they are arrested and brought to the police department for questioning.  They recognize the officers words that “we are bringing somebody down to ID you ” or ” the victim is on her way”.   Is psychological tools used to prime, intimidate, harass, the defendant into making admission prior to his Miranda warnings being given.

The reason the original Miranda warnings were required by the US Supreme Court in the 1960s was because Police would drive defendants around for hours without food what are sleep until they mentally and emotionally harass them into making admissions.   The police would hide behind the fact that the defendants were not at the Police Department “arrested “but merely being driven around.  That is why the threshold question is whether the arrestee is free to leave.   If the Arestee/defendant is not free to leave then the state must provide him or her with the Miranda warnings.  If the person decides to voluntary provide information after that, the police have done their constitutionally obligated mandate.

In the modern era the police’ recognize psychological comments, such as those made by this police officer, are surely provided for one reason. Intimidation tools used to scare arrestees into talking. This appellate court recognize that and established a bright line rule once again which the police must follow.  No psychological warfare without first providing the defendant his Miranda rights.

The following is the court’s reasoning and legal foundation.

We turn now to defendant’s argument that his statements to the police should have been suppressed. It is beyond well settled that “every natural person has a right to refuse to disclose . . . to a police officer . . . any matter that will incriminate him or expose him to a penalty . . . .” N.J.S.A.2A:84A-19; N.J.R.E. 503. “New Jersey’s privilege against self- incrimination is so venerated and deeply rooted in this state’s common law that it has been deemed unnecessary to include the privilege in our State Constitution.” State v. O’Neill, 193 N.J. 148, 176 (2007). The Court has treated “our state privilege as though it were of constitutional magnitude, finding that it offers broader protection than its Fifth Amendment federal counterpart.” Id. at 176-77. Miranda warnings safeguard our state law privilege as they do the Fifth Amendment. Id. at 185.     The United States Supreme Court has made clear that Miranda warnings are required “whenever a person in custody is subjected to either press questioning or its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 308 (1980). Our Supreme Court acknowledged the “functional equivalent” of interrogation rule of Innis in State v. Bey, 112 N.J. 45, 68 n.13 (1988) (holding”[t]he initiation of a general discussion about the victim clearly satisfies” the Innis standard); see also State v. Hubbard, 222 N.J. 249, 267 (2015). As the State has conceded that defendant was in custody when he made the incriminating statement about the cell phone, the only issue presented to the trial court, and the one we review, is whether Officer Andrek’s statements to defendant informing him, first, that the victim was coming over to identify him, and then, that other officers had found a gun nearby was the “functional equivalent” of an interrogation.     The Supreme Court in Innis, explained that “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response [whether inculpatory or ] from the suspect.” 446 U.S. at 301, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at 308 (footnotes omitted). The Court explained its reasoning thus:         The latter portion of this definition           focuses primarily upon the perceptions of         the suspect, rather than the intent of the         police. This focus reflects the fact that         the Miranda safeguards were designed to vest         a suspect in custody with an added measure         of protection against coercive police         practices, without regard to objective proof         of the underlying intent of the police. A         practice that the police should know is         reasonably likely to evoke an incriminating         response from a suspect thus amounts to         interrogation. But, since the police surely        cannot be held accountable for the         unforeseeable results of their words or         actions, the definition of interrogation can         extend only to words or actions on the part         of police officers that they should have          known were reasonably likely to elicit an         incriminating response.         [Id. at 301-02, 100 S. Ct. at 1690, 64 L.         Ed. 2d at 308 (footnotes omitted).]     We applied the Innis rule in State v. Ward, 240 N.J. Super. 412 (App. Div. 1990). Ward involved a robbery of a mini-mart in Newark by three males, one of them a juvenile. Two of the robbers, Kevin Miller and the juvenile, S.S., fled in a car and were quickly apprehended by police. Miller implicated Ward, who was then identified by one of the victims in a photo array. The following week, a detective investigating the robbery learned that Ward was in custody on an unrelated charge. The detective went to Ward’s cell with photographs of Miller and S.S. The detective showed Ward the pictures and, without giving him Miranda warnings, told him he was going to be charged with the robbery of the mini-mart, and that Miller and S.S. had already been arrested. Ward looked at the pictures and told the detective, “I don’t know Kevin Miller and [S.S.].” Id. at 416. The detective had not mentioned either name to Ward. The detective immediately read Ward his Miranda rights. Ibid. Ward refused to sign the waiver card and insisted he knew nothing about any robbery. Ibid.     We determined that the detective’s confrontation with Ward had been the functional equivalent of an interrogation, and that Ward’s response “was not simply a spontaneous outburst elicited casually or innocently without the State’s purposeful enticement or encouragement.” Id. at 417. “[M]indful that ‘the modern practice of in-custody interrogation is psychologically rather than physically oriented,'” ibid. (quoting Miranda, supra, 384 U.S. at 448, 86 S. Ct. at 1614, 16 L. Ed. 2d at 708), Judge King wrote that the Detective’s undertaking . . . was designed to elicit a response, both helpful to the investigation and incriminatory of  his suspect. . . . Defendant should have been given the Miranda warnings before, not after, the Detective started the process so clearly designed to entangle the defendant in the criminal event. We concluded that a scrupulous respect of Ward’s rights would have required Miranda warnings before the detective confronted Ward in his cell, told him of the robbery and of the formal charge against him, and then showed him the pictures. Id. at419. We come to a similar conclusion here.     Officer Andrek testified he provided defendant information at three different times while defendant was in custody outside the garage before providing him Miranda warnings. Upon escorting defendant out of the garage, Andrek advised defendant he was being detained because he fit the description of the perpetrator of an armed robbery that had just taken place near Journal Square. Several minutes later, Andrek advised defendant that one of the victims was being brought over to see if the victim could identify him. Some minutes after that, Andrek advised defendant that officers searching the area had located a gun a few doors down from where they stood.   The trial judge concluded on the basis of that testimony that Officer Andrek “did nothing to elicit the response from [defendant] indicating where the phone was.” Instead the judge found it was “something [defendant] blurted out based upon all the circumstances of what’s going on and, frankly, it’s probably something common that happens in human nature, you just — you know, it is what it is.“     We agree that it is not surprising that defendant “blurted out” an expletive and acknowledged he had the cell phone “based upon all the circumstances” transpiring. Defendant knew police suspected him of the armed robbery. Upon being provided with the additional information that a detective was bringing over one of the victims to identify him, and that other officers had found the gun nearby, defendant, as Officer Andrek testified, knew “he was caught.” The common human experience we understand the judge was referring to is one of the tightening of a noose.The officer offered no explanation for supplying defendant with these updates on the investigation, which clearly were not inadvertent, see State v. Bohuk, 269 N.J. Super. 581, 594-95 (App. Div.), certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S. Ct. 183, 130 L. Ed. 2d 117 (1994), and appear designed to elicit a response. See Ward, supra, 240 N.J. Super. at 418. It is precisely because defendant’s response is soreadily understandable that we find the officer should surely have known that his meting out of the information in the way he did was reasonably likely to evoke an incriminating response, and thus that it amounted to an interrogation.    To be clear, like the trial judge, we see no objection to the officers’ initial statements to defendant about why he was being detained. If defendant had at that point blurted out that he had the cell phone, we would not hold the officers accountable for such an unforeseeable result. See Innis, supra, 446 U.S. at 301-02, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at 308; see also State v. Melendez, 423 N.J. Super. 1, 30 (App. Div.2011), certif. denied, 210 N.J. 28 (2012); State v. Lozada, 257 N.J. Super. 260, 268-69 (App. Div.), certif. denied, 130 N.J. 595 (1992); State v. Mallozzi, 246 N.J. Super. 509, 516 (App. Div. 1991).         Here, however, Officer Andrek continued well beyond his initial communication informing defendant of the reasons for his detention. The officer’s actions in continuing to engage defendant by providing him updates on the progress of the investigation were unnecessary, and the officer should have known they would be likely to elicit an incriminating response, either exculpatory or inculpatory. See Innis, supra, 446 U.S. at 301 n.5, 100 S. Ct. at 1689 n.5, 64 L. Ed. 2d at 308 n.5. They should not have been undertaken prior to providing defendant with Miranda warnings. Accordingly, we reverse the decision to admit defendant’s statements to the police and remand for further proceedings consistent with this opinion.

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State vs. Wright: Identification of the defendant by the victim at the scene

Appellate Review of Defendant’s Statement Without the Benefit of Miranda Warnings.