Issue: Did a Hispanic individual make a knowing and voluntary waiver 1) of his right to remain silent and2) not consent to a search of his ‘entire’ cell phone and ‘all its systems’? What is the State’s burden of proof required “in order to admit the defendant’s statement at the time of trial and the evidence found from the ‘deleted’ portion of the digital record on the defendant’s cell phone”?
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
THIS CASE PRESENTS A VERY CURRENT ISSUE FOR THOSE WHO A) DON’T SPEAK ENGLISH AS THEIR PRIMARY LANGUAGE, AND DON’T HAVE A FULL AND COMPLETE UNDERSTANDING OF THE CELL PHONE DATA AND HISTORY OF WHAT IS SAVED ON A CELL PHONE! MAKE SURE YOU KNOW WHAT YOU ARE CONSENTING TO THE POLICE WHEN THEY ASK TO REVIEW YOUR CELL PHONE AND ALL OF ITS SYSTEMS’!!!
SHORT ANSWER:
It is well established that “[a] confession obtained during a custodial interrogation may not be admitted in evidence unless law enforcement officers first informed the defendant of his or her constitutional rights.” State v. Hreha, 217 N.J. 368, 382 (2014) (citing Miranda, 384 U.S. at 444). Law enforcement officers must inform any person in custody “(1) of [his or her] right to remain silent; (2) that any statement made may be used against him or her; (3) that the person has a right to an attorney; and (4) that if the person cannot afford an attorney, one will be provided.” State v. Knight, 183 N.J. 449, 462 (2005) (citing Miranda, 384 U.S. at 444).
Facts:
Defendant signed a MIRANDA consent form with the county prosecutor’s office and allowed the police to search his phone. The police searched the defendant’s phone and found 10 deleted phones of this girlfriend’s minor child’s private parts. The state charged the defendant with numerous 1st, 2nd and 4th degree crimes. Thereafter, defendant filed a motion to suppress his statement and the photographs recovered in the search of his cell phone. On June 24, 2015, the trial court conducted an evidentiary hearing on the motion. The State introduced the Miranda rights and waiver form, the consent-to-search form, the video recording of defendant’s interview, and the transcript of the interview. The State presented testimony from Detective Carla Espinel, one of the detectives who interviewed defendant. The video recording of the interview was played in court, and Espinel identified the voice on the recording as her voice. An interpreter translated into English the portions of the video during which Espinel and defendant spoke in Spanish.
On June 30, 2015, the judge placed her decision on the record. The judge found that defendant “clearly, intelligently and unambiguously” waived his Miranda rights and “freely, intelligently, and knowingly” consented to the search of his cell phone. The judge denied defendant’s motions to suppress. On March 10, 2016, pursuant to an agreement with the State, defendant pled guilty to count four of the indictment, which charged first-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(b)(3). Among other things, the State agreed to dismiss the other charges and recommend a five-year custodial sentence. Defendant provided a factual basis for the plea. On June 10, 2016, the judge sentenced defendant in accordance with the plea agreement. However, on October 3, 2016, the judge vacated the plea. The State and defendant entered a new agreement, and defendant pled guilty to count five of the indictment, which charged second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(b)(4). Defendant reserved the right to appeal the denial of his suppression motions. The judge sentenced defendant to a five-year prison term; required him to register as a sex offender pursuant to Megan’s Law, N.J.S.A. 2C:7-2(b)(2); and ordered that he have no contact with the victim.
Discusion:
It is well established that “[a] confession obtained during a custodial interrogation may not be admitted in evidence unless law enforcement officers first informed the defendant of his or her constitutional rights.” State v. Hreha, 217 N.J. 368, 382 (2014) (citing Miranda, 384 U.S. at 444). Law enforcement officers must inform any person in custody “(1) of [his or her] right to remain silent; (2) that any statement made may be used against him or her; (3) that the person has a right to an attorney; and (4) that if the person cannot afford an attorney, one will be provided.” State v. Knight, 183 N.J. 449, 462 (2005) (citing Miranda, 384 U.S. at 444).
A person may waive these rights, but the waiver must be made “voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444. “[T]he New Jersey common law privilege against self- incrimination affords greater protection to an individual than that accorded under the federal privilege.” State v. A.G.D., 178 N.J. 56, 67 (2003) (quoting In re Grand Jury Proceedings of Guarino, 104 N.J. 218, 229 (1986)). Thus, under the law of this State, the prosecution “must prove beyond a reasonable doubt that the suspect’s waiver [of the privilege against self-incrimination] was knowing, intelligent, and voluntary in light of all the circumstances.” Ibid. (quoting State v. Presha, 163 N.J. 304, 313 (2000)).
In determining whether a statement is voluntary, courts consider the totality of the circumstances, including the characteristics of the accused and the details of the questions. Knight, 183 N.J. at 462-63 (citing State v. Galloway, 133 N.J. 631, 654 (1993)). “Relevant factors include the defendant’s age, education, intelligence, advice concerning his [or her] constitutional rights, length of detention, and the nature of the questioning . . . .” State v. Bey, 112 N.J. 123, 135 (1988) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).
When reviewing a trial court’s decision on a motion to suppress, we are required to uphold the court’s findings of fact if they are “supported by sufficient credible evidence in the record.” State v. Elders, 192 N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)). We must defer to the trial court’s findings based on its review of video and documentary evidence. State v. S.S., 229 N.J. 360, 380 (2017). We may not disregard those findings unless they are so wide of the mark that intervention is required in the interests of justice. Id. at 381 (citing Elders, 192 N.J. at 245).
Here, the trial court found that defendant “clearly understood” his Miranda rights and “knowingly, voluntarily, and intelligently waived them.” The judge noted that the detectives read and explained defendant’s Miranda rights to him in his native language and paused several times to emphasize that defendant could stop the interrogation at any time. The judge pointed out that the detectives did not merely hand defendant the Miranda rights form. Instead, the detectives spent ten minutes ensuring that defendant understood his Miranda rights.
On appeal, defendant argues that Espinel read him his rights at the start of the interrogation but did not read him the portions of the form that focus on whether he actually understood those rights. He contends Espinel failed to provide an “additional explanation” or ask him whether he understood his rights. He asserts that while the recording and transcript show that he nodded or made statements like “ah-ha” and “okay” after each right was read to him, these words did not demonstrate, beyond a reasonable doubt, that he actually understood those rights.
Here, the judge noted that defendant never stated that he “understood” his rights and voluntarily waived them. However, defendant “clearly expressed [that] sentiment in the natural flow of conversation when he stated okay, okay, no problem, and okay perfect” after Espinel explained the rights to him in Spanish. The judge noted that Espinel informed defendant of his rights by explaining the Miranda rights form to him.
The form indicates that defendant: (1) had the right to remain silent; (2) that anything he said could and would be used against him in a court of law; (3) he had the right to speak with a lawyer for advice before being asked any questions, and he had the right to have counsel with him during questioning; (4) if he could not afford a lawyer, one would be appointed to him before questioning if he wished; and (5) if he decided to answer questions without a lawyer, he had the right to stop answering at any time or until he spoke with a lawyer.
The form also includes a translation of each statement into Spanish. The transcript of the interview indicates that Espinel read each statement in Spanish to defendant and defendant responded to each statement by using expressions such as “ah-ha” and “okay.” Espinel asked defendant if he wanted to read the form, but he said that was not necessary. As the judge determined, defendant indicated that he understood his rights. Indeed, when Espinel asked him whether he wanted to read the form, he said that was not necessary.
In addition, at the bottom of the form, the following statement appears under the heading “WAIVER OF RIGHTS/RENUNCIA DE DERECHOS”: I HAVE READ THIS STATEMENT OF MY RIGHTS AND UNDERSTAND WHAT MY RIGHTS ARE. I AM WILLING TO MAKE A STATEMENT AND ANSWER QUESTIONS. I DO NOT WANT A LAWYER AT THIS TIME. I UNDERSTAND AND KNOW WHAT I AM DOING. NO PROMISES OR THREATS HAVE BEEN MADE TO ME AND NO PRESSURE OR COERCION OF ANY KIND HAS BEEN USED AGAINST ME.
This statement was also translated into Spanish. Defendant signed the waiver. After defendant signed the form, he answered the detective’s questions. At no point did he indicate that he wanted a lawyer or wanted the questioning to cease.
THIS COURT MADE AN EFFORT TO DISTINGUISH THIS RULING FROM THE RECENT DECISION NJ STATE SUPREME COURT DECISION OF STATE V. AM. IN THAT VERY RECENT CASE THE COURT DETERMINED THAT DEFENDANT DID NOT MAKE A KNOWING AND VOLUNTARY WAIVER OF HIS RIGHT TO REMAIN SILENT DURING THE INTERROGATION POST MIRANDA AND THE STATE DID NOT SATISFY ITS EVIDENTIARY BURDEN SHOWING THAT DEFENDANT MADE AN ACTUAL KNOWING AND VOLUNTARY WAIVER BAWED ON THE DEFENDANT’S LANGUAGE BARRIER AND MINIMAL INTERPRETING ACTIVITY.
THIS COURT STATED: “We note that in State v. A.M., N.J. Super. , (App. Div. 2018) (slip op. at 19-20), we reversed the denial of the defendant’s motion to suppress his statement, finding that the State had not shown beyond a reasonable doubt that the defendant’s waiver of his Miranda rights was knowing and intelligent. In that case, the defendant was questioned by a detective and a police officer. Id. at 5. The officer translated the detective’s questions into Spanish and the defendant’s answers from Spanish to English. Ibid. In A.M., we noted that the officer: did not ask defendant about his level of education, failed to make efforts to determine if the defendant was literate in Spanish, did not ask the defendant to read the waiver provision out loud to create a video record of what defendant actually read, and did not mention the word “waiver” or any other word with a similar meaning. Id. at 17. We concluded that the motion judge had improperly shifted the burden of proof to the defendant to alert the interrogating officers about any difficulty he had in understanding the waiver form. Id. at 18.”
This case is substantially different. As we have explained, the record shows that defendant was fully informed of his Miranda rights, which were explained to him in Spanish, his native language. Defendant indicated that he understood each right. Furthermore, the detective asked defendant if he wanted to read the Miranda rights form, in which the rights are set forth in Spanish, and he said this was not necessary. The waiver of rights section also was explained to defendant in Spanish, and he signed the form. At no point did the motion judge indicate that defendant had the burden of alerting the officers that he did not understand his rights or the significance of the waiver form.
We conclude there is sufficient credible evidence in the record to support the judge’s findings that defendant was fully informed of his Miranda rights, and he voluntarily, knowingly, and intelligently agreed to waive those rights.
III.
The court uses the same analysis to address this defendant’s waiver of his right to deny access to the ‘entire’ cell phone memory and deleted phones! The court stated: “Defendant further argues that the judge erred by denying his motion to suppress the photographs recovered from his cell phone. Again, we disagree. As noted previously, we must uphold the judge’s findings of fact if supported by sufficient credible evidence in the record. Elders, 192 N.J. at 243 (citing Locurto, 157 N.J. at 474). We must defer to the trial court’s findings based on its review of video and documentary evidence. S.S., 229 N.J. at 380.
The Fourth Amendment of the United States Constitution and Article I, paragraph seven of the New Jersey Constitution protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Our courts have expressed a “preference that police officers secure a warrant before they execute a search.” State v. Witt, 223 N.J. 409, 422 (2015) (citing State v. Frankel, 179 N.J. 586, 597-98 (2004)). Warrantless searches may, however, be permitted if they fall within “one of the ‘few specifically established and well-delineated exceptions’ to the warrant requirement.” Ibid. (quoting Frankel, 179 N.J. at 598).
“[A]ny consent given by an individual to a police officer to conduct a warrantless search must be given knowingly . . . .” State v. Carty, 170 N.J. 632, 639 (2002) (citing State v. Johnson, 68 N.J. 349, 354 (1975)). Furthermore, to justify a warrantless consent search, the State must prove that the person who provided consent did so voluntarily and that he knew of his right to refuse consent to the search. Johnson, 68 N.J. at 353-54. “Voluntariness is a question of fact to be determined from all the circumstances . . . .” Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973). Consent must also be “unequivocal and specific,” and “freely and intelligently given.” State v. King, 44 N.J. 346, 352 (1965). “[T]he existence of a written waiver points strongly to the fact that the waiver was specific and intelligently made.” State v. Daley, 45 N.J. 68, 76 (1965).
Here, the judge found that defendant “freely, intelligently, and knowingly” consented to the search of his cell phone. The judge noted that Espinel had thoroughly explained to defendant the information that the detectives could recover from the phone, including data that he might have tried to delete. The judge pointed out that this disclosure was not required, but it demonstrated that defendant’s consent to the search was not a product of any deception or coercion.
On appeal, defendant argues that he did not knowingly and voluntarily consent to the search of his phone for deleted files. He asserts Espinel did not inform him he had a right to refuse to consent to the search. However, the record does not support these arguments. As the judge found, Espinel specifically informed defendant the search of the phone would include an attempt to recover any data that defendant may have deleted. The transcript of the interview also indicates that defendant was well aware that it had been alleged that he took inappropriate photos of A.S. Initially, defendant denied taking any such photos. In reviewing the consent-to-search form, Espinel specifically mentioned that the detectives would be seeking all of the information on the phone including photos, and the detectives had “a system” for retrieving deleted data.
The record also does not support defendant’s contention that he was not informed of his right to refuse to consent to the search. When Espinel reviewed the form, she noted that it indicated defendant would be voluntarily giving permission to the officers to undertake the search, and he was informed he had the right to say no to the search. She asked defendant if he understood the statement, and he said, “Okay.”
We are convinced there is sufficient credible evidence in the record to support the judge’s finding that defendant consented to the search of his cell phone knowingly, intelligently, and voluntarily. The record shows defendant was fully informed that the investigators would be seeking any data deleted from the phone, including photos. The record also shows defendant was informed he had the right to refuse to consent to the search.