Criminal Procedure

Confessions Made Before Arrest While in Handcuffs

A police officer will commonly restrain a defendant with handcuffs for the safety of the officer. A police officer might ask the defendant while in handcuffs to hand over drugs or other incriminating evidence without reading him his right to remain silent and his right to an attorney. “It is clear that custody in the Miranda sense does not necessitate a formal arrest, nor does it require physical restraint in a police station, nor the application of handcuffs, and may occur in a suspect's home or a public place other than a police station.” State v. O'Neal, 190 N.J. 601, 622 (N.J., 2007). When a defendant is in handcuffs and “subjected to treatment that renders him ‘in custody’ for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda.” Berkemer v. Carty, 468 U.S. 420, 422 (1984). There is little difference between speaking incriminating words in response to custodial interrogation without Miranda warnings and conveying the same message by handing over incriminating evidence without Miranda warnings. In State v. Mason, 164 N.J.Super. 1, 4, (N.J. Super. A.D., 1979).

“Defendant handed the drugs over to the police in response to their interrogation. . . .Had defendant made an oral admission of the fact that she possessed narcotics it would not have been admissible against her because she had not been warned of her right to remain silent. We perceive no reason why the result should not be the same when her response was of a different nature. Non-verbal responses to questioning are treated in the same way as are verbal responses. The privilege against self incrimination extends to all acts intended to be of a testimonial or communicative character, whether in verbal or other form.” Id. at 4 (citations omitted).

In State v. Hall, 253 N.J.Super. 84 (N.J.Super.L., 1990) contraband was “suppressed because the defendant produced the cocaine in direct response to the detective's question whether he ‘had anything on him.’” Id. at 91. Before an officer can ask a suspect in handcuffs if he has contraband, he has to read him his rights. Evidence obtained in compliance with the request has to be suppressed.

“(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.” State v. Sugar, 100 N.J. 214, 238, 495 A.2d 90 (N.J., 1985)

Probable cause can be “an odor of unburned marijuana [that] creates an inference that marijuana is physically present in the vehicle.” State v. Judge, 275 N.J.Super. 194, 201, 645 A.2d 1224 (N.J. Super. A.D., 1994). The “smell of marijuana alone, if articulable and particularized, may establish not merely reasonable suspicion, but probable cause.” U.S. v. Ramos, 443 F.3d 304, 308 (3rd Cir., 2006, citation omitted). However, “[w]hile the odor of marijuana provides probable cause to believe that marijuana is present, the presence of marijuana does not of itself authorize the police either to search any place or to arrest any person in the vicinity. Additional factors must be present to localize the presence of marijuana such that its placement will justify either the search or the arrest.” U.S. v. Humphries, 372 F.3d 653, 659 (4th Cir., 2004). One such additional factor would be the localization the source of the odor. If an “officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana.” Id. at 659.

On the other hand, the “odor of burnt marijuana creates an inference that marijuana is not only physically present in the vehicle, but that some of it has been smoked recently.” State v. Judge, 275 N.J.Super. 194, 201, 645 A.2d 1224 (N.J. Super. A.D., 1994). All passengers might then be searched.

An officer may also conduct “a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Terry v. State of Ohio, 392 U.S. 1, 27(1968). A search for weapons when an officer has reasonable suspicion that the defendant might harm him does not bootstrap into a search for contraband. A search for contraband was the “sort of evidentiary search that Terry expressly refused to authorize, and that we have condemned in subsequent cases.” Minnesota v. Dickerson, 508 U.S. 366, (1993).

However, if the officer had probable cause for the search and the contraband would have been inevitably discovered, it may be admitted into evidence. The inevitable discovery exception to the exclusionary rule requires:

The smell of raw marijuana and the subsequent location of the source of the marijuana on one occupant of a vehicle is not necesarilly probable cause that another occupant is also in possession of contraband. A sister state has ruled that: “the odor of marijuana on Defendant’s person was not the only fact known to [the officer]. He was also aware that Defendant’s passenger possessed marijuana. These two factors provide the sole basis for any claim of probable cause to arrest Defendant. Although we recognize that probable cause is a practical, non-technical concept, we are not convinced that these two factors, without other credible indicia of criminal activity, were sufficient to convince a reasonable and prudent person that Defendant possessed marijuana.” State v. Valle, 196 Ariz. 324, 330-31 (Ariz. App. 2000, emphasis added)