NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4388-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMAL WADE, a/k/a JAMAL WILLIAMS,
Defendant-Appellant. __________________________
Submitted October 21, 2020 – Decided November 23, 2020
Before Judges Alvarez and Geiger.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 17-02- 0125.
Bruno & Ferraro, attorneys for appellant (John Latoracca, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Amanda G. Schwartz, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Defendants Jamal Wade and Gyasi Allen were charged with murder and
related offenses for the fatal shooting in Paterson of Cosmeik Gee on
September 30, 2016. Wade appeals: the September 20, 2018 order
determining that his statement to police was admissible at trial; a September
24, 2018 order determining that the testimony of the State's historical cell-site
analysis expert regarding the location of Wade's cell phone was admissible at
trial; and an April 29, 2019 amended judgment of conviction. We affirm.
We discern the following facts from the record. At around 11:43 p.m.
on September 30, 2016, a dark-colored Audi sedan pulled out from the
intersection of William Street and Twelfth Avenue in Paterson and stopped
next to Gee's vehicle. Several shots were fired into Gee's car, fatally
wounding him.
While investigating the shooting, Paterson Police Department (PPD)
detectives viewed several surveillance videos, eventually recovering footage
from a neighborhood liquor store that captured the faces of two men they
believed were involved. Footage taken by a city camera at the intersection of
East Twenty-Second Street and Twelfth Avenue recorded the victim walking
toward his vehicle, which was parked west of East Twenty-Third Street on
Twelfth Avenue, and a dark-colored Audi sedan pull out from the intersection
of William Street and Twelfth Avenue and stop next to the victim's vehicle. A
A-4388-18T4 2 man wearing a black jacket, a gray hooded sweatshirt, gray pants, and black
shoes exited the front passenger door and fired several shots into the victim's
vehicle. The shooter re-entered the sedan, and the vehicle sped off, traveling
northwest on Twelfth Avenue and turning right onto East Twenty-Second
Street. A detective identified Wade as the driver of the sedan and Allen as the
passenger and shooter. The court granted the State's motion to admit the
identification at trial.
Detectives recovered additional footage from the area. The footage
showed the sedan traveling north on Twenty-Second Street for several blocks
from 11:47 to 11:48 p.m. that night and passing several buildings along East
Twenty-Second Street and Tenth Avenue before disappearing from view.
The State Police Auto Theft Task Force (Task Force) conducted a large-
scale investigation into automobile theft in Paterson and surrounding areas.
As part of the investigation, the Task Force obtained a September 20, 2016
communications data warrant (CDW) authorizing installation of a signal
monitoring and GPS tracking device to "allow members of the New Jersey
State Police, the New Jersey Division of Criminal Justice, and members of any
law enforcement agencies assigned to this investigation ('the participating law
enforcement agencies'), to instantly and continuously track the position and
location of [a black 2012 Audi A6]" with New Jersey registration number
A-4388-18T4 3 H76GUD, for thirty days. The CDW was authorized to identify individuals
engaged in the crimes of Receiving Stolen Property, Fencing-Dealing in Stolen
Property, Theft by Unlawful Taking, and Conspiracy to commit those crimes.
The CDW stated that any "information obtained pursuant to the Warrant
[could] be disclosed to members of the participating law enforcement agencies,
as well as any other law enforcement officer who may be assigned to
participate in [the] investigation."
After hearing that a dark-colored sedan was involved in the Paterson
shooting, Detective Sergeant Vittorio Flora of the Task Force reviewed the
GPS data and learned that the Task Force had been tracking a stolen dark-
colored 2012 Audi A6 sedan that was parked near the scene of the shooting at
the time it occurred Flora provided the PPD detectives with GPS data and
tracking sheets recovered pursuant to the CDW that showed the vehicle's travel
path after it departed from William Street.
After locating the stolen Audi A6, PPD detectives recovered surveillance
footage from the area. From the videos obtained, they observed the Audi A6
traveling west on Seventh Avenue and parking at 11:52 p.m. at the location
where it was recovered. Two men exited the vehicle—the driver wearing a
gray hooded sweatshirt with a black line across the front, gray sweatpants, and
black shoes, and the passenger wearing a black jacket, a light-colored hood
A-4388-18T4 4 underneath, gray sweatpants, and dark shoes. The passenger wiped the
exterior door handles with a cloth, which he then placed in a white duffle bag,
before following the driver toward East Sixteenth Street. The men turned
south onto East Sixteenth Street and then east onto Eighth Avenue.
After reviewing the videos, the team returned to the Detective Bureau,
and lead Detective Anthony Petrazzuolo began examining the GPS tracking
sheets. He determined that the Audi A6 had been parked at 451 East Twenty-
Fourth Street from about 8:39 p.m. until 10:54 p.m. on the night of the
shooting, so the team decided to visit the area to locate additional footage.
The footage did not show the exact location of the vehicle, but it did show that
around 8:39 p.m., two men were walking south on East Twenty-Fourth
Street—one wearing the same clothing as the driver of the Audi A6, and the
other wearing all black clothing—and then turned west onto Tenth Avenue.
The team visited a liquor store near the corner of Tenth Avenue and East
Twenty-Second Street. Footage obtained from the liquor store suggested that
one of the men arriving at the scene was the driver of the Audi A6. Detective
Jimmy Maldonado reviewed the footage and determined that the driver who
entered the liquor store was Wade.
Later in the footage, at around 10:47 p.m., a dark-colored Honda sedan
pulled up in front of the liquor store, and a man who appeared to be wearing
A-4388-18T4 5 the same clothing as the passenger/shooter exited the vehicle. A local Paterson
man identified him as Allen. Wade and Allen then walked east on Tenth
Avenue, entered a minivan, and exited the minivan after a short period of time;
at about 10:51 p.m., the camera captured the men turning onto East Twenty-
Fourth Street, where the Audi A6 was parked.
On October 3, 2016, Maldonado spotted Wade in front of a convenience
store on Tenth Avenue. The detectives stopped and exited their vehicle. After
confirming his identity, Petrazzuolo drew his weapon, placed Wade in hand
restraints, seized two cell phones, and told him he was under arrest for murder.
The gun that was used in this case was never recovered. A marked patrol car
transported Wade to the Detective Bureau for an interview.
Petrazzuolo and Maldonado took Wade's videotaped statement. Wade
was not handcuffed during the twenty-minute interview. A redacted version
was played for the jury.
First, Petrazzuolo said, "So, we told you why you're here," and Wade
agreed and nodded his head. Then, Petrazzuolo read Wade his Miranda1 rights
from a rights and waiver form. The rights read to Wade included:
You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to speak to an attorney for advice before we
1 Miranda v. Arizona, 384 U.S. 436 (1966).
A-4388-18T4 6 ask any questions. Also, you have the right to have a lawyer with you during any questioning. If you cannot pay for the service of a lawyer, a lawyer will be appointed to represent you without cost before any interrogation. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering questions at any time. You also have the right to stop answering questions at any time until you speak to a lawyer.
Wade watched the detective as he spoke and nodded his head several times.
Wade orally confirmed he understood "each and every one of those
rights," then wrote his answers to the questions on the Miranda form and
signed it. Petrazzuolo next read aloud the waiver of rights section of the form:
I have read my rights and I 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 nobody has used pressure or force of any kind against me.
Petrazzuolo then said, "So, if you want to speak to us, you're going to have to
waive your rights." The following exchange then occurred:
MR. WADE: I have a lawyer, though.
DET. PETRAZ[Z]UOLO: You have a lawyer?
MR. WADE: Yeah.
DET. PETRAZ[Z]UOLO: So you want a lawyer?
MR. WADE: I got a lawyer. I don't -- yeah, let me talk to him.
A-4388-18T4 7 DET. MALDONADO: Does he have a lawyer for something else or you --
MR. WADE: He's paid for everything. I got a case in Delaware, a case here. He's paid for everything
DET. MALDONADO: Oh, okay.
DET. PETRAZ[Z]UOLO: All right, so you—you don't want to speak to us without your lawyer; is that what you're saying?
MR. WADE: There's nothing to be mad at, I'm a man.
DET. PETRAZ[Z]UOLO: All right, well you're going to have to wait to speak --
MR. WADE: Yeah, but I got a lawyer. So you said I'm under arrest, right?
DET. MALDONADO: No, I didn't say you're under arrest.
MR. WADE: You just read me my rights.
DET. MALDONADO: If you -- He hasn't been charged with anything --
DET. MALDONADO: (indiscernible)
DET. PETRAZ[Z]UOLO: You haven't been charged with anything yet.
Mr. WADE: So then talk. I don't need to tell you shit if I ain't under arrest. I know I ain't do nothing wrong.
DET. PETRAZ[Z]UOLO: Are you . . . verbally agreeing to speak to us?
MR. WADE: Yeah, I'm a man.
A-4388-18T4 8 DET. PETRAZ[Z]UOLO: Without your lawyer here?
MR. WADE: (indiscernible). He knew you.
DET. PETRAZ[Z]UOLO: Are you verbally agreeing to speak to you without your lawyer?
MR. WADE: Yeah, verbally. (indiscernible) I think you think I'm stupid, 'cause I got --
DET. MALDONADO: I don't think you're stupid. I'm just saying that you said --
MR. WADE: You saying the only way you need a lawyer is I'm under arrest, and I'm not under arrest, I can talk to anybody, the judge, the fucking mayor, whoever.
DET. MALDONADO: All right, Jamal.
During this exchange, Wade signed the waiver section of the Miranda form,
acknowledging that he waived his rights.
The detectives questioned Wade about what he was doing the night the
victim was shot. Wade told them he was drinking at the liquor store with some
neighborhood people, and he stayed there until 2 a.m. Around midnight that
night, he learned the victim had been shot while in a bad part of the
neighborhood. He also told the detectives that he was wearing an all gray
outfit, with a hat and black belt. When Petrazzuolo asked Wade to identify an
image of a man's profile, Wade confirmed it was him. According to
A-4388-18T4 9 Petrazzuolo, the image was a still shot photograph derived from the liquor
store surveillance footage.
The detectives then told Wade they knew he was lying about being at the
liquor store until 2:00 a.m. based on footage from surveillance cameras in the
area. They told him the cameras showed that around 10:30 p.m., he was
walking near Twenty-Third Street and Tenth Avenue and then to Twenty-
Fourth Street. There, he got into an Audi, drove first to William Street, then to
Twelfth Avenue between Twenty-Second and Twenty-Third Streets, where a
passenger exited the Audi and shot the victim. Wade was later observed near
Fifteenth Street and Seventh Avenue.
Petrazzuolo told Wade, "[A]ll you can do at this point is help yourself,"
but Wade claimed the detectives were telling "fabricated stories" and requested
to speak to his lawyer because "[t]his just got bad." Maldonado continued to
speak with Wade, explaining that "[o]ut of respect" for him, they "put it all out
there," so Wade would understand what they already knew about his
connection to the shooting. Wade briefly responded but requested his lawyer
again after the detective told him, "We know you didn't do it by yourself."
The detectives ceased questioning Wade at that point and ended the interview.
Wade was then formally charged and booked. Petrazzuolo prepared the
criminal complaint.
A-4388-18T4 10 Detective David Posada of the Passaic County Prosecutor's Office
obtained a CDW for Wade's iPhone and related T-Mobile account records.
Posada sent the CDW to T-Mobile. T-Mobile provided a call log and cell site
data detailing which towers Wade's iPhone communicated through during
those calls. The call log showed that Wade's iPhone had been used during the
relevant hours.
The call log, cell site data, and GPS tracking data were sent to the
Federal Bureau of Investigation's (FBI) Cellular Analysis Survey Team
(CAST) for historical cell-site analysis. FBI Special Agent Agit David, a
member of CAST assigned to the FBI's Technical Operations Division in
Newark, was responsible for real-time cellular phone location and historical
cell-site analysis.
David analyzed the historical cell site data for Wade's T-Mobile account
to determine whether Wade's iPhone was used in the general area of the
shooting and travel path of the Audi A6 at the approximate time of the crime.
He was also asked to determine if the cell site data was consistent with the
GPS data the Task Force had obtained. In addition, he performed drive tests 2
2 To perform a drive test, a person drives or walks around the streets or paths in a particular area and carries a radio scanner that collects data about the frequencies transmitted from a cell phone tower in that area. The data shows the effective coverage for a particular cell phone tower, which encompasses
A-4388-18T4 11 during July 2018 to provide a more accurate analysis of the coverage area of a
particular cell site.
David focused on three calls of interest that were made at 11:49 p.m.,
11:51 p.m., and 11:54 p.m. on the night of the shooting. David created a map
for each of the three calls. The maps showed the cell tower that handled the
call, the extent of the coverage for that cell site and sector, the effective
coverage for that site and sector, the dominant coverage area, and the GPS
tracker information—all in relation to the crime scene. Based on this
information, David determined the cell dominant phone coverage was
consistent with Wade's iPhone being present at GPS-derived locations of the
Audi A6 during the three calls. He also determined that the drive test data
confirmed that the coverage of the cell site could include at least some points
along the GPS tracker. The GPS data, in turn, showed the Audi A6 was parked
in the area of the shooting just before it occurred and the vehicle's travel path
after it departed.
A Passaic County grand jury returned an indictment charging Wade
with: second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1)
(count one); first-degree purposeful or knowing murder, N.J.S.A. 2C:11-
each location that a user can receive and make phone calls. However, a drive test cannot identify a cell phone's exact location; it can only identify that a cell phone was in a particular area when being serviced by a certain tower.
A-4388-18T4 12 3(a)(1), (2) (count two); first-degree conspiracy to commit murder, N.J.S.A.
2C:5-2 and 2C:11-3(a) (count three); fourth-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(a) (count four); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count five); and
third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) and 2C:20-
2(b)(2)(b) (count six). The indictment charged Allen with the offenses set
forth in counts one, two, three, and five.
The Miranda Hearing
Before trial, the State moved to allow admission of Wade's statement to
the Paterson detectives during its case-in-chief. The court conducted a Rule
104 hearing. After the State played the recording of Wade's statement,
Petrazzuolo testified that he did not threaten or force Wade to give a statement
and did not make any promises to Wade. He also confirmed that Wade was
not formally charged until after the interview. Petrazzuolo described Wade as
"pretty calm" and mostly cooperative during the interview, other than when he
made statements that contradicted what the detectives observed on the
surveillance videos.
Detective Maldonado briefly explained his involvement in Wade's arrest
and in taking Wade's statement. He explained that he misspoke when he told
Wade he was not under arrest. He "meant to say that [Wade] hadn't been
A-4388-18T4 13 charged with anything" because usually when individuals make a statement,
they ask if they have been charged. After Wade responded to Maldonado's
statement that he was not under arrest, Maldonado told him he had not been
charged yet.
The court found that Wade voluntarily and knowingly waived his
Miranda rights and ruled that Wade's statement was admissible at trial. While
the court acknowledged it was arguable that Wade's waiver was "somewhat
equivocal," the court found it significant that: Wade had previous encounters
with law enforcement; the detectives advised him of all his rights; the
detention was brief; the time between the reading of his rights and his
statement was brief; Wade's statement was likewise brief; and the detectives
did not prolong the questioning or subject Wade to physical or mental abuse.
The court found Maldonado's misstatement that Wade was not under arrest was
immaterial, because even if not truthful, Wade "understood what was going
on."
The Motion to Suppress the GPS Data
On the first day of trial, Wade moved to suppress the GPS data and
tracking sheets that Paterson detectives obtained from the Task Force.
Following oral argument and a review of the CDW, the court denied
defendant's motion to suppress the GPS data and tracking sheets. The court
A-4388-18T4 14 concluded that common sense dictated that when the lead "agency authorized
by the CDW . . . contacts another agency, that's part of the investigation."
Eventually, Wade was charged with receiving stolen property, one of the
crimes listed in the CDW, which the judge found to be a further "indication of
the nexus between the State Police contacting . . . the Paterson Police
Department and then Paterson Police in turn using that information to one of
the charges that is common [to] both." The court found there was "no [CDW]
violation under the circumstances."
The Trial
During the ten-day joint trial, the State called fourteen witnesses,
including Petrazzuolo, Maldonado, Flora, Posada, David, Pagano, and forensic
scientist Brett Hutchinson. The State's witnesses did not provide a motive for
the homicide. Neither defendant testified nor did they call any witnesses.
Wade's statement was played for the jury. The jury was also presented
with two photos taken from the liquor store video and signed by Wade. The
photos were of Wade's face, and during his statement, Wade agreed that the
person depicted in both photos was him
State Police Detective Sergeant Clinton Pagano testified that his duties
with the auto theft task force were to "investigate high[-]end motor vehicle
thefts and try and develop cases against theft crews and individuals stealing
A-4388-18T4 15 motor vehicles." In his affidavit in support of the application for the CDW,
Pagano requested that the State Police be permitted: "to disclose the requested
search warrants and communications data warrants as well as the supporting
affidavit filed in this matter to members of the New Jersey Attorney General's
Office as well as other law enforcement agencies who are assisting the New
Jersey State Police." Pagano testified that he believed it was permissible to
turn over the information to "law enforcement involved in any investigation."
The court recognized David as an expert in historical cell-site analysis
without objection. David provided the jury with detailed information
explaining how he performed the cell site analysis. We need not repeat his
comprehensive testimony as Wade does not contest the validity of the cell-site
analysis in this appeal.
David opined that the cell site records for Wade's iPhone could coincide
with the GPS coordinates and that the drive test "further confirm[ed] that the
coverage for that particular cell site could include at least some points along
that GPS tracker." When then asked whether it was still his opinion that
Wade's iPhone "could have aligned with the GPS coordinates," David replied:
"Yes, it's possible." Considering all the GPS and cell tower data, David
concluded "that the phone could have been located with [the Audi A6] at the
time that these calls were made."
A-4388-18T4 16 The jury found Wade guilty on all counts.3 At sentencing, the trial court
dismissed count four and merged counts three and five into count two. Wade
was sentenced to an aggregate forty-year term, subject to a thirty-four-year
period of parole ineligibility and a five-year period of mandatory parole
supervision under the No Early Release Act, N.J.S.A. 2C:43-7.2. Count two
ran consecutively to any sentence defendant was already serving. This appeal
followed.
Defendant raises the following points for our consideration:
POINT I
THE STATE'S MOTION TO ADMIT DEFENDANT'S STATEMENT DURING ITS CASE- IN-CHIEF SHOULD HAVE BEEN DENIED BECAUSE THE POLICE NEVER INFORMED DEFENDANT OF THE CHARGES HE WAS FACING, AND THEY LIED WHEN THEY INFORMED HIM THAT HE WAS NOT UNDER ARREST; PURSUANT TO STATE V. A.G.D.,4 JAMAL WADE'S WAIVER OF HIS RIGHT AGAINST SELF-INCRIMIMATION WAS NOT VALID AND THEREFORE HIS STATEMENT SHOULD HAVE BEEN SUPPRESSED.
POINT II
THE EVIDENCE GARNERED FROM THE GPS TRACKER ON THE STOLEN AUDI SHOULD NOT
3 The jury found Allen guilty of counts one through three and five. 4 State v. A.G.D., 178 N.J. 56 (2003).
A-4388-18T4 17 HAVE BEEN ADMITTED INTO EVIDENCE BECAUSE IT WAS SUPPLIED TO THE PATERSON POLICE IN DIRECT CONTRAVENTION OF A COURT ORDER, AND ITS ADMISSION AT TRIAL DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
A.
We first address the admissibility of Wade's statement to police.
Relying on A.G.D., Wade contends that he did not make a knowing and
voluntary waiver of his right against self-incrimination because Maldonado
and Petrazzuolo did not inform him of the nature of the charges against him or
that he had been arrested. 178 N.J. 56. He asserts they materially
misrepresented that he was not under arrest, which he claims was the basis for
agreeing to waive his rights. The State contends that the detectives did not
violate A.G.D. because neither an arrest warrant nor a criminal complaint had
been issued before Wade gave his statement. Ibid. The State further argues
that, even if the court did err, it was harmless because there was overwhelming
evidence of Wade's guilt and because Wade's single admission during his
statement did not lead to an unjust verdict.
We are guided by the following well-established legal principles. When
reviewing "a trial court's admission of police-obtained statements," we "engage
in a 'searching and critical' review of the record to ensure protection of a
defendant's constitutional rights." State v. Maltese, 222 N.J. 525, 543 (2015)
A-4388-18T4 18 (quoting State v. Hreha, 217 N.J. 368, 381-82 (2014)). "We do not
independently assess evidence as if we are the trial court." Ibid. (citing Hreha,
217 N.J. at 382). Rather, we "typically defer to the trial court's credibility and
factual findings." Hreha, 217 N.J. at 382. Such "findings should be disturbed
only if they are so clearly mistaken 'that the interests of justice demand
intervention and correction.'" State v. Tillery, 238 N.J. 293, 314 (2019)
(quoting State v. A.M., 237 N.J. 384, 395 (2019)). "However, we owe no
deference to conclusions of law made by lower courts in suppression
decisions, which we instead review de novo." State v. Boone, 232 N.J. 417,
426 (2017) (citing State v. Watts, 223 N.J. 503, 516 (2015)).
The record demonstrates that Petrazzuolo advised Wade of the full
panoply of his Miranda rights before subjecting him to custodial interrogation.
Petrazzuolo also advised Wade of the need to waive those rights before
questioning could begin. Wade confirmed both verbally and in writing that he
understood his Miranda rights.
If the suspect consents to proceed with the interrogation, his rights must
be "voluntarily, knowingly and intelligently" waived. Miranda, 384 U.S. at
444; State v. Hartley, 103 N.J. 252, 261 (1986). Any evidence obtained in
violation of Miranda must be suppressed at trial. Hartley, 103 N.J. at 262.
A-4388-18T4 19 The record fully supports the trial court's conclusion that Wade voluntarily and
knowingly waived his Miranda rights and agreed to answer questions.
Whether a defendant invoked the right to remain silent is determined
under the totality of the circumstances. Maltese, 222 N.J. at 545. If the
suspect invokes the right to remain silent, that invocation must be
"scrupulously honored." Hartley, 103 N.J. at 255-56 (citing Michigan v.
Mosley, 423 U.S. 96 (1975)). If the invocation is ambiguous, the officer may
only ask clarifying questions about whether he or she meant to invoke the right
to remain silent. State v. Johnson, 120 N.J. 263, 283 (1990) (citations
omitted).
An ambiguous invocation can arise where a subject refuses to respond to
questioning for a prolonged period and has made statements that "convey[] an
unwillingness to respond to any questions." Id. at 285. An ambiguous
invocation of the right to remain silent must be clarified before authorities can
proceed to question a suspect. State v. S.S., 229 N.J. 360, 384, 386 (2017).
Where the totality of the circumstances demonstrates that the defendant
exercised his right to remain silent or to counsel, whether ambiguously or
unambiguously, the Hartley bright line rule requires Miranda warnings to be
readministered. Hartley, 103 N.J. at 267. Here, Wade did not exercise his
right to remain silent, to speak to an attorney, or to have an attorney present
A-4388-18T4 20 during questioning at any point during the interview, either ambiguously or
unambiguously.
In A.G.D., the police had obtained an arrest warrant for the defendant
before interviewing him. 178 N.J. at 59. The Court held that a Miranda
waiver is per se invalid when police withhold the fact that a criminal complaint
has been filed against the suspect or a warrant has been issued for his arrest.
178 N.J. at 68. Here, neither of those events had yet occurred.
In State v. Vincenty, 237 N.J. 122, 134 (2019), the Court reaffirmed its
holding in A.G.D. There, the police sought to question Vincenty about an
attempted robbery and attempted murder. Id. at 126-27. After obtaining a
signed Miranda waiver, detectives began questioning Vincenty; it was not until
later in the interview that they showed him a list of the charges that had
already been filed against him. Id. at 127-28. The Court concluded that
"Vincenty's interrogation is precisely what A.G.D. prohibits." Id. at 134. It
held that because Vincenty was not informed by police of the charges filed
against him until after he signed the waiver, he was deprived of "critically
important information" and could not have knowingly and voluntarily waived
his right against self-incrimination. Id. at 135. These facts are clearly
distinguishable.
A-4388-18T4 21 The facts in this case are similar to those in State v. Nyhammer, 197 N.J.
383 (2009). There, the Court considered whether Nyhammer could knowingly
and voluntarily waive his right against self-incrimination where the police
failed to inform him that he was a suspect. Id. at 387-88. The police asked
Nyhammer if he was willing to discuss allegations that his uncle had sexually
abused Nyhammer's minor niece. Id. at 389. The police did not inform
Nyhammer that the victim had also made similar allegations against him. Id.
at 390. Nyhammer agreed to speak with the detectives, and after being read
his Miranda rights, he agreed to waive them. Id. at 389-90. After discussing
the allegations about Nyhammer's uncle, the detective informed Nyhammer of
the allegations against Nyhammer. Id. at 391. Nyhammer then confessed to
sexually abusing his niece. Id. at 391-92.
The Court declined to adopt a per se rule to determine whether
Nyhammer's waiver was valid. Id. at 404. In so holding, it distinguished the
matter from A.G.D.:
The issuance of a criminal complaint and arrest warrant by a judge is an objectively verifiable and distinctive step, a bright line, when the forces of the state stand arrayed against the individual. The defendant in A.G.D. was purposely kept in the dark by his interlocutors of this indispensable information. Unlike the issuance of a criminal complaint or arrest warrant, suspect status is not an objectively verifiable and discrete fact, but rather an elusive concept that
A-4388-18T4 22 will vary depending on subjective considerations of different police officers.
[Id. at 404-05.]
The Court concluded:
In the typical case, explicit knowledge of one's status as a suspect will not be important for Miranda purposes. However, explicit knowledge of one's suspect status, in some unusual circumstance, might be a useful piece of information in exercising a waiver of rights under our state-law privilege against self- incrimination. Nevertheless, the failure to be told of one's suspect status still would be only one of many factors to be considered in the totality of the circumstances.
[Id. at 407.]
The Court was "mindful that the Miranda warnings themselves strongly
suggest, if not scream out, that a person is a suspect," and this "should be a
sobering wake-up call to a person under interrogation." Id. at 407-08.
We discern no error in admitting Wade's statement at trial. Wade had
not yet been charged or indicted when interviewed. When the detectives
located Wade, however, Petrazzuolo drew his weapon, placed Wade in
handcuffs, and told him he was under arrest for murder. Wade was then
transported to the Detective Bureau in a marked police car, advised of his
Miranda rights, and interviewed in a locked room at the Detective Bureau.
These circumstances "screamed out" that Wade was a suspect in the homicide
A-4388-18T4 23 and under arrest. Moreover, this was not Wade's first encounter with police or
arrest.
At one point during the interview, Wade asked: "So you said I'm under
arrest, right?" Maldonado immediately responded: "No, I didn't say you're
under arrest." Maldonado then accurately told Wade: "He hasn't been
charged."
The record fully supports the findings that Wade: knew he was a suspect
for the murder; understood his Miranda rights; voluntarily, knowingly and
intelligently waived those rights; did not exercise his rights to remain silent, to
speak to an attorney, or have one present; and gave a voluntary statement to
the detectives. Accordingly, the trial court properly determined that Wade's
statement to police was admissible.
B.
We next address Wade's argument that the trial court erred in denying
his motion to suppress the GPS data that Paterson detectives obtained from the
State Police. Wade contends the GPS data was inadmissible because it was
obtained pursuant to a CDW issued for the sole purpose of investigating
automobile theft and related offenses. Wade asserts that the trial court erred in
allowing the State to use the GPS data for a purpose not expressly stated in the
warrant because the PPD was not involved in the automobile theft
A-4388-18T4 24 investigation, was not designated as one of the "participating agencies" in the
CDW, and used the GPS data for an unrelated purpose.
The State counters that the sharing of information between different law
enforcement agencies is not unlawful. In addition, since Wade was charged
with one of the crimes described in the CDW, the State Police did not exceed
the scope of the CDW when it shared the GPS data with the PPD.
"We review the trial court's evidentiary ruling under a deferential
standard; it should be upheld 'absent a showing of an abuse of discretion, i.e.,
there has been a clear error of judgment.'" State v. J.A.C., 210 N.J. 281, 295
(2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). A reviewing court
applying this deferential standard "should not substitute its own judgment for
that of the trial court, unless 'the trial court's ruling is so wide of the mark that
a manifest denial of justice results." Ibid. (quoting State v. Marrero, 148 N.J.
469, 484 (1997)).
Defendant does not challenge the validity of the CDW and concedes he
lacked standing to challenge the GPS tracker on the stolen car he was driving
on the night of the homicide. The State Police lawfully acquired the GPS data
from the tracking device installed on the stolen Audi A6 pursuant to the CDW.
The CDW limited the use of the tracker to identifying the vehicle's location
A-4388-18T4 25 and travel; there is no evidence that the tracker identified a wider range of
information.
We have recently recognized that "[t]he circumstances here are no
different than one law enforcement agency shares information relevant to an
ongoing investigation with another law enforcement agency in order to assist
in the apprehension of a suspect." State v. Jackson, 460 N.J. Super. 258, 274-
75 (App. Div. 2019) (citing Phila. Yearly Mtg. of Religious Soc'y of Friends v.
Tate, 519 F.2d 1335, 1337-38 (3d Cir. 1975)) (noting that the sharing of
information among law enforcement agencies for a legitimate law enforcement
purpose is only impermissible if the initial gathering of that information was
unlawful). Here, the installation of the tracking device and resulting
acquisition of GPS data were carried out pursuant to a valid CDW.
More fundamentally, the CDW was issued to identify individuals
engaged in the crime of receiving stolen property. Wade was charged with and
convicted of receiving stolen property for traveling to and departing from the
scene of the shooting in the stolen Audi A6. Consequently, the PPD was a
"participating" law enforcement agency in the Task Force's auto theft
investigation as defined by the CDW.
As noted by the trial court, it would "defy common sense" to conclude
that the police were required to overlook what they believed might be evidence
A-4388-18T4 26 related to the homicide, merely because homicide was not a crime enumerated
in the CDW, when a stolen vehicle being tracked via GPS by the Task Force
was used as the getaway vehicle. As we similarly concluded in State v.
Jackson, "the circumstances here are no different than when one law
enforcement agency shares information relevant to an ongoing investigation
with another law enforcement agency in order to assist in the apprehension of
a suspect." 460 N.J. Super. 258, 273 (App. Div. 2019), aff'd o.b., 241 N.J. 547
(2020).
We discern no error. The trial court properly denied Wade's motion to
suppress the GPS data.
Affirmed.
A-4388-18T4 27