STATE OF NEW JERSEY v. ANTHONY FORTSON (2013)

Defendant Anthony Fortson was convicted of second-degree certain persons not to have weapons, N.J.S.A. 2C:39–7(b), the fourth count of an indictment also charging him with second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39–4(a) (count one);  third-degree possession of a loaded rifle or shotgun, N.J.S.A. 2C:39–5(c)(2) (count two);  fourth-degree possession of a weapon without any explainable lawful purpose, N.J.S.A. 2C:39–3(e) (count three);  fourth-degree contempt of an order entered under the Prevention of Domestic Violence Act of 1991 (the Act), N.J.S.A. 2C:29–9(b) (count five);  and third-degree possession of a rifle by a person whose weapons had been seized under an order issued pursuant to the Act, N.J.S.A. 2C:39–7(b)(3) (count six).   Defendant entered a guilty plea to the offense after the trial judge denied his pre-trial motions, including to suppress certain statements he asserted were inadmissible because they were obtained in violation of Miranda.¹  On February 17, 2012, defendant was sentenced in accordance with the negotiated agreement to six years imprisonment subject to five years of parole ineligibility as required by N.J.S.A. 2C:39–7(b).  He appeals and we affirm.

The facts we recount were developed during the course of the pre-trial hearing, mainly pursuant to stipulation.   Neither the arresting officers nor defendant testified.   The prosecutor read the police reports to the court, and defendant's attorney added some additional material.

An anonymous tipster called Deptford police to the area of Tanyard Road and Carter Avenue regarding the sound of a gun being fired six times.   When police arrived, Walter Wilcox, who was not the caller but lived on the street, confirmed he too had heard six shots in the area.   Both the caller and Wilcox described the shots as sounding as if they came from “22s.”   Wilcox told the police it was possible defendant had fired the shots and gave them defendant's address.   The officers also spoke to a woman who did not wish to be identified but claimed to be related to defendant.   She said defendant “was acting strange and could have been the one that fired the shots.”

As the officers approached defendant's residence, they saw a man, later identified as defendant, drop something near a retaining wall onto which he then climbed.   Defendant stopped and showed his hands after being repeatedly instructed by police to do so.   When asked if he had any weapons on his person, he said he did not, but admitted to having bullets.   A box of 22–caliber bullets was removed from defendant's front jacket pocket.   When also asked if he had been firing a weapon, he admitted to doing so, and told the officers where the gun could be found.   The item he was observed dropping in the area turned out to be a 22–caliber bolt-action rifle, with a twenty-round magazine in the stock.

Defendant was then arrested.   He admitted discharging the weapon six to seven times behind a home on Tanyard Road, and took the officers to the area where the rounds had been fired.   They located seven 22–caliber shell casings, and observed some damage to a nearby tree which appeared to result from at least one shot.   Defendant told officers that he had another rifle in his home, gave them verbal consent to enter, and told them the combination to the lock on his front door.   In the house, the officers found a second rifle, also a bolt-action 22–caliber rifle, as well as a pump-action BB gun and a large silver dagger.   Police transported defendant to headquarters where a detective, who was not present at the arrest, administered Miranda warnings for the first time.

The trial judge found that the pre-Miranda statements were admissible because the officers needed to ensure their safety and those of nearby residents.   Under the public safety exception to the principles embodied in Miranda, it was necessary for police to immediately ascertain if they had “the shooter, or whether that person is still on the loose, [a]nd, also to make sure they have obtained the location of the weapon that was fired.”   In his counseled brief on appeal, defendant asserts the following error:

POINT I

THE MOTION COURT ERRED IN DENYING SUPPRESSION OF THE DEFENDANT'S INITIAL STATEMENTS, BECAUSE THE “PUBLIC SAFETY” EXCEPTION TO THE MIRANDA RULES DOES NOT APPLY.   U.S. CONST., AMENDS.   V, XIV.

In his pro se supplemental brief, defendant raises the following points:

POINT I

DEFENDANT['S] 4TH, 5TH, AND 14TH ET., SEQ., AMEND[ME]NT[ ] RIGHTS WERE DEPRIVED WHEN THE TRIAL JUDGE ERR[ED] IN SUPPRESSING “ALL STATEMENTS AT THE POINT OF ARREST.”   THE 4TH AMENDMENT DEPRIVATION IS NOT A[N] ISSUE ON THIS APPEAL.

POINT II

DEFENDANT['S] 5TH, AND 14TH ET., SEQ., AMEND[ME]NT[ ] RIGHTS WERE DEPRIVED WHEN THE DEPTFO[R]D POLICE DE[TE]CTIVE USED THE “TWO–STEP” LINE OF INTERROGATION TO EXPLOIT THE FIRST UNWARNED STATEMENT.

We address only whether the pre-Miranda statements were admissible.   Since we agree with the Law Division judge that they were, the question of taint becomes irrelevant.

Miranda warnings have become a commonplace in our society.   Anytime a suspect is arrested and questioned, such warnings must be administered for the statements to be admissible.   There are, however, certain exceptions to the Miranda rule, including emergencies in which the overriding consideration requires that police obtain information for the safety of the public, themselves, and the defendant or the “safety exception.”  State v. O'Neal, 190 N.J. 601, 616–18 (2007).

State ex rel A.S., 227 N.J.Super.   541 (App.Div.1988), certif. denied, 117 N.J. 58 (1989), sheds light on the law in this relatively finite universe of cases.   A tipster informed officers that he had just witnessed a person discharge a handgun.  Id. at 543.   After arriving on the scene, police detained a suspect subsequently identified as A.W. Ibid. A pat-down search did not reveal a gun, but did turn up five live rounds of 32–caliber ammunition.  Ibid. Additionally, two spent casings were found in the area where he was standing.  Ibid. A.W. informed the officers, however, that he had given the weapon to a friend subsequently identified as A.S. Id. at 543–44.   A.W. directed police to A.S.'s apartment building.  Ibid. When police arrived, A.S. was attempting to flee.  Id. at 544.   Conducting a pat-down search, and finding no weapon, police asked A.S. for the gun's location.   Ibid. He showed the officers a nearby alleyway where he had hidden the weapon.  Ibid.

In A.S., we concluded that the gun, located in the alleyway of a residential neighborhood, posed a threat to the community, the investigating officers, and the general public;  therefore, defendant's statements were admissible, as was the weapon.  Id. at 548.   After A.S., the Supreme Court in O'Neal refined the rule, which now requires that any questioning must be framed so as to elicit a response solely regarding weapons, and not be open-ended, potentially eliciting other incriminating information.  O'Neal, supra, 190 N.J. at 618.

In our view, as the judge stated in denying this motion, the officers had to quickly confirm that the person in their custody was the shooter.   The police had to promptly locate any firearms that either defendant or others in the surrounding area might be able to access.

Defendant in his counseled brief suggests that there was no exigency as the officers could reasonably assume that the item that they observed defendant hiding was the weapon.   We do not agree.   The mere fact he was hiding an object only meant it was prohibited, or contraband of some type, and not necessarily that it was the discharged weapon.

The officers' questioning was focused and limited, designed to elicit information about the gun's whereabouts and to confirm that only defendant was involved in the shooting.   The incident occurred in a dead-end street, an area in which private residences and a nursing home were located.   That the street was mainly a residential area containing a couple of commercial businesses, including the nursing home, made the officers' need to locate the weapon and arrest the shooter more urgent.

Affirmed.

FOOTNOTES

FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

PER CURIAM