STATE OF NEW JERSEY v. DANIEL HICKMAN, JR.

This case can also be found at 335 N.J. Super. 623.
 

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5322-99T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DANIEL HICKMAN, JR.,

Defendant-Respondent.

_________________________________

Submitted October 17, 2000 - Decided December 26, 2000

Before Judges Skillman, Conley and Wecker.

On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 99-04-379.

Andrew N. Yurick, Gloucester County
Prosecutor, attorney for appellant (Joseph H.
Enos, Jr., Assistant Prosecutor, of counsel
and on the brief).

Ivelisse Torres, Public Defender, attorney
for respondent (Lon Taylor, Assistant Deputy
Public Defender, of counsel and on the
brief).

The opinion of the court was delivered by
SKILLMAN, P.J.A.D.
This appeal involves the scope of questions a police officer
may ask an occupant of a car that is stopped for a motor vehicle
violation.

Defendant was indicted for possession of cocaine, in
violation of N.J.S.A. 2C:35-10a(1). Defendant moved to suppress
the evidence against him, and after an evidentiary hearing, the
trial court granted the motion. We subsequently granted the
State's motion for leave to appeal the suppression order, and now
reverse.
Shortly after midnight on January 7, 1999, defendant was a
passenger in a car being operated by an unlicensed driver in the
Borough of Westfield in Gloucester County. When a West Deptford
police officer informed Officer Richard Thomas of the Westfield
Police Department that the driver's license was revoked, Thomas
stopped the car and asked the driver for his credentials. The
driver handed Thomas a driver's license, but a computer check
confirmed that the license was revoked. In addition, the driver
was unable to produce any registration or other evidence of
ownership of the car. At this point, Officer Thomas asked
defendant and another passenger whether they had driver's
licenses, and they both said no. According to Thomas, when
defendant responded to this question, he appeared to be extremely
nervous, as evidenced by his "[r]efus[al] to make eye contact,"
and "shifting his weight from one side to the other." The
officer told defendant he looked "really nervous," and asked,
"have you got something on you that you should surrender right
now? Any contraband, weapons, anything like that[?]" Defendant
responded, "yes, I have something in my shoe[,]" and removed a
small bag of rock cocaine from his right shoe. Thomas testified
that only a few minutes elapsed between the time he stopped the
car and defendant revealed the cocaine.
In granting defendant's motion to suppress evidence of the
cocaine he had produced from his shoe, the trial court stated:
I see this as . . . a compulsory question
requiring and demanding a compulsory
answer[.] . . . You have contraband on you,
you shouldn't have, which basically says give
it to me.

Under a Fourth Amendment standard, . . .
[w]here is the reasonable articulable
suspicion under those circumstances?

On the other hand, if we're looking at
it on a Fifth Amendment basis, clearly this
is a coercive question in a . . . coercive
environment in which the officer is basically
compelling and demanding information in which

this defendant knew he had no reason to
believe that he was free to get out of that
car and walk away.

. . . .

. . . [T]wo things are clear to me in
this situation. No person under these
circumstances would have believed . . . that
he or she was free to leave. . . .

. . . [T]he other flip side of that,
. . . I don't find that there was a
reasonable, articulable suspicion that an
officer should have had just because of a
nervous condition that the defendant . . .
had contraband on him.

. . . .

. . . [F]ield inquiry means being more
gentle. I have some things I'd like to ask
you and you don't have to answer these
questions, or some variation on such a theme.
But the defendant really wasn't given a
choice under these circumstances. And that's
why I found the environment, as well as the
question, coercive. . . .

The trial court's opinion does not clearly indicate whether
the court conceived that the question Officer Thomas asked
defendant violated the Fifth Amendment, the Fourth Amendment, the
Due Process Clause of the Fourteenth Amendment, or all three
constitutional provisions. In any event, in defending the order
granting his motion to suppress, defendant argues that Officer
Thomas' question violated the Fifth Amendment privilege against
self-incrimination because it was not preceded by the warnings
required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966), the Due Process Clause of the Fourteenth
Amendment because defendant's response was "[in]voluntary under
the totality of the circumstances," and the Fourth Amendment
because Thomas did not have a reasonable basis for suspicion that
defendant was involved in unlawful activity.
We conclude that the brief questioning of defendant after a
valid stop of the car in which he was riding did not violate any

of the constitutional provisions relied upon by defendant. The
arguments that Officer Thomas was required to give Miranda
warnings before questioning defendant and that defendant's
admission that he was in possession of cocaine was involuntary,
are clearly without merit. However, we discuss these points
briefly before considering defendant's Fourth Amendment argument.

I
In Berkemer v. McCarty, 468 U.S. 420, 435-42, 104 S. Ct.
3138, 3147-52, 82 L. Ed. 2d 317, 331-36 (1984), the Supreme Court
held that roadside questioning of a motorist detained pursuant to
a routine traffic stop does not constitute "custodial
interrogation" that must be preceded by Miranda warnings. The
Court recognized that "a traffic stop significantly curtails the
'freedom of action' of the driver and the passengers." Id. at
436, 104 S. Ct. at 3148, 82 L. Ed. 2d at 332. Nevertheless, the
Court concluded that a traffic stop does not "exert[] upon a
detained person pressures that sufficiently impair his free
exercise of his privilege against self-incrimination to require
that he be warned of his constitutional rights." Id. at 437, 104
S. Ct. at 3149, 82 L. Ed. 2d at 333.
In reaching this conclusion, the Court pointed to "[t]wo
features of an ordinary traffic stop [that] mitigate the danger
that a person questioned will be induced 'to speak where he would
not otherwise do so freely.'" Ibid. (quoting Miranda, supra, 384
U.S. at 467, 86 S. Ct. at 1602, 16 L. Ed. 2d at 694). First, "a
traffic stop is presumptively temporary and brief" and thus
"questioning incident to an ordinary traffic stop is quite
different from stationhouse interrogation, which frequently is
prolonged, and in which the detainee often is aware that
questioning will continue until he provides his interrogators the
answers they seek." Id. at 437-38, 104 S. Ct. at 3149, 82 L. Ed.
2d at 333. Second, "the typical traffic stop is public, at least
to some degree," which "reduces the ability of an unscrupulous
policeman to use illegitimate means to elicit self-incriminating
statements and diminishes the motorist's fear that, if he does
not cooperate, he will be subjected to abuse." Id. at 438, 104
S. Ct. at 3149, 82 L. Ed. 2d at 334.
The Court in Berkemer also analogized the "usual traffic
stop" to a "Terry stop":
In both of these respects, the usual
traffic stop is more analogous to a so-called
"Terry stop," see Terry v. Ohio, 392 U.S. 1,
20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), than
to a formal arrest. Under the Fourth

Amendment, we have held, a policeman who
lacks probable cause but whose "observations
lead him reasonably to suspect" that a
particular person has committed, is
committing or is about to commit a crime, may
detain that person briefly in order to
"investigate the circumstances that provoke
suspicion." United States v. Brignoni-Ponce,
 422 U.S. 873, 881, 95 S. Ct. 2574, 45 L. Ed.
2d 607 (1975). . . . The comparatively
nonthreatening character of detentions of
this sort explains the absence of any
suggestion in our opinions that Terry stops
are subject to the dictates of Miranda. The
similarly noncoercive aspect of ordinary
traffic stops prompts us to hold that persons
temporarily detained pursuant to such stops
are not "in custody" for the purposes of
Miranda.

[Id. at 439-40, 104 S. Ct. at 3150, 82 L. Ed.
2d at 334-35.]

Roadside questioning of a motorist is not transformed into
"custodial interrogation" that must be preceded by Miranda
warnings simply because a police officer's questioning is
accusatory in nature or designed to elicit incriminating
evidence. Thus, in Berkemer, the Court held that a police
officer was not required to give Miranda warnings to a suspected
drunk driver before asking him whether "he had been using
intoxicants[.]" Id. at 423, 104 S. Ct. at 3141, 82 L. Ed. 2d at
324. Similarly, in State v. Toro, 229 N.J. Super. 215 (App. Div.
1988), certif. denied, 118 N.J. 216 (1989), we held that police
officers who observed a package at the foot of a driver stopped
for a motor vehicle offense, which they suspected was a container
for drugs, could ask what was in the package without giving
Miranda warnings. Although the police officers in Toro ordered
the driver out of the car and frisked him for weapons before
questioning him, we concluded that the questioning was not
"custodial":
Defendant was not told that he was under
arrest, he was not handcuffed and he was not
subjected to any search beyond a patdown for
weapons. Furthermore, defendant was detained
only briefly before he was asked about the

contents of the package, and the police
questioning consisted of only a few,
noncoercive questions. "Treatment of this
sort cannot fairly be characterized as the
functional equivalent of formal arrest."
Berkemer v. McCarty, supra, 468 U.S. at 442,
104 S. Ct. at 3152 [, 82 L. Ed. 2d at 336].
. . . Rather, the officer's actions from the
time they observed the suspicious package
until defendant revealed that it contained
cocaine constituted a Terry "stop and
inquiry" in order to "obtain information
confirming or dispelling the officer's
suspicions." Berkemer v. McCarty, supra,
4 618 U.S. at 439, 104 S. Ct. at 3150 [, 82 L.
Ed. 2d at 334].

[Id. at 221.]

It is even clearer in this case than it was in Toro that
defendant was not subject to "custodial" interrogation. When
Officer Thomas questioned defendant, the car in which he was
riding had been stopped for only a few minutes, defendant was
still sitting in the car and was not restrained in any way, and
Thomas did not indicate that either the car or the occupants
would be detained beyond the brief period required to issue the
driver a summons for driving with a suspended license and
determine ownership of the car. Moreover, although Thomas told
defendant that he looked "really nervous" and asked whether he
had any contraband, a reasonable innocent person in defendant's
position would not have perceived simply from this inquiry that
he would be detained beyond the time required to complete the
motor vehicle stop. Therefore, Officer Thomas was not required
to give defendant Miranda warnings.

II
We next consider whether defendant's statement to Officer
Thomas was involuntary and thus obtained in violation of the Due
Process Clause.
"[C]ertain interrogation techniques . . . are so offensive
to a civilized system of justice that they must be condemned
under the Due Process Clause of the Fourteenth Amendment."
Miller v. Fenton, 474 U.S. 104, 109, 106 S. Ct. 445, 449, 88 L.
Ed. 2d 405, 410 (1985). However, it is only questioning that
involves police "overreaching," Connelly, supra, 479 U.S. at 163,

107 S. Ct. at 520, 93 L. Ed. 2d at 482, or "misconduct," State v.
Timmendequas, 161 N.J. 515, 613 (1999), which will be found to
violate the Due Process Clause. For example, a confession
extracted by a credible threat of physical violence is considered
involuntary and thus violative of due process. Arizona v.
Fulminante, 499 U.S. 279, 286-87, 111 S. Ct. 1246, 1252-53, 113
L. Ed. 2d 302, 315-16 (1991). However, because of "the
acknowledged need for police questioning as a tool for the
effective enforcement of criminal laws," Schneckloth v.
Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d
854, 861 (1973), the Due Process Clause only bars such extreme
forms of police questioning.
Applying these principles, the Supreme Court of the United
States has held that police questioning which included a false
representation to a suspect that a confederate had confessed did
not violate the Due Process Clause. Frazier v. Cupp, 394 U.S.
731, 739, 89 S. Ct. 1420, 1424-25, 22 L. Ed. 2d 684, 693 (1969).
Similarly, in State v. Miller, 76 N.J. 392, 403-05 (1978), our
Supreme Court held that a confession obtained by an investigator
who told a murder suspect that he was his friend and wanted to
help him, and that whoever committed the crime was not a criminal
who should be punished but a person who needed medical treatment,
did not violate the defendant's due process rights. The Court
observed that the "[u]se of a psychiatrically-oriented technique
is not improper merely because it causes a suspect to change his
mind and confess." Id. at 405; see also State v. Roach, 146 N.J.
208, 226-27, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L.
Ed. 2d 424 (1996).
The few brief questions that Officer Thomas asked defendant
before he revealed the cocaine in his shoe did not involve any
coercion beyond that inherent in any police questioning of a
citizen. When defendant was asked these questions, he was not in
a hostile or intimidating atmosphere. He was simply sitting in a
car which had been stopped for a motor vehicle violation. Most
significantly, Officer Thomas did not subject defendant to any
physical or mental abuse, and his questioning was exceedingly
brief. Therefore, this case does not present any serious
question as to the voluntariness of defendant's response.

III
Finally, we consider whether the stop of the car in which
defendant was riding and the questioning of defendant violated
the Fourth Amendment or Article I, paragraph 7 of the New Jersey
Constitution.
"Temporary detention of individuals during the stop of an

automobile by the police, even if only for a brief period and for
a limited purpose, constitutes a 'seizure' of 'persons' within
the meaning of the [Fourth Amendment]." State v. Dickey, 152
N.J. 468, 475 (1998) (quoting Whren v. United States, 517 U.S.
806, 809-10, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89, 95 (1996)).
Therefore, any automobile stop, however brief, must satisfy the
Fourth Amendment's basic requirement of "reasonableness." Ibid.
"As a general rule," this requirement may be met by showing that
"'the police [had] probable cause to believe that a traffic
violation has occurred[,]'" ibid. (quoting Whren, supra, 517 U.S.
at 810, 116 S. Ct. at 1772, 135 L. Ed. 2d at 95-96), and that the
stop last[ed] no longer than [was] necessary to effectuate [its]
purpose." Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319,
1325, 75 L. Ed. 2d 229, 238 (1983); see Dickey, supra, 152 N.J.
at 475-83.
When there are passengers in a car stopped for a traffic
violation, the passengers are subject, as a practical matter, to
the same temporary stop as the driver, because passengers do not
generally have readily available alternative means of
transportation. See Maryland v. Wilson, 519 U.S. 408, 413-14,
117 S. Ct. 882, 886, 137 L. Ed. 2d 41, 47 (1997) ("[A]s a
practical matter, [in a motor vehicle stop] the passengers are
already stopped by virtue of the stop of the vehicle.");
Berkemer, supra, 468 U.S. at 436, 104 S. Ct. at 3148, 82 L. Ed.
2d at 332 ("[A] traffic stop significantly curtails the 'freedom
of action' of the driver and the passengers, if any, of the
detained vehicle."); see also State v. Smith, 134 N.J. 599, 611-
19 (1994); Dickey, supra, 152 N.J. at 483. Moreover, if a stop
for a motor vehicle violation is reasonable, the police do not
have to show an independent basis for detaining the passengers,
unless the detention goes beyond what is incident to a brief
motor vehicle stop. See State v. Harris, 557 N.W.2d 245, 252
(Wis. 1996)("Once the State establishes that the police acted
lawfully in stopping the vehicle . . ., the stop will be lawful
as to anyone in the vehicle."); People v. Bell, 51 Cal. Rptr. 2d
115, 119 (Cal. App. 1996) ("If . . . the detention is permissible
as to the driver -- for example, if it is based on reasonable
suspicion that the driver has violated the Vehicle Code -- then
the detention is likewise permissible as to the passenger.").
But see People v. Cartwright, 85 Cal. Rptr. 2d 788, 791-93 (Cal.
App. 1999).
The information Officer Thomas received from another police
officer that the car in which defendant was riding was being
operated by a driver with a revoked license provided the probable
cause required to justify the stop. Moreover, the stop did not last any longer than was necessary to determine whether the
driver had a license and other required driving credentials.
When Officer Thomas' initial inquiries of the driver revealed
that he did not have a license, Thomas was justified in detaining
him for the additional period required to issue a summons. In
addition, because defendant and the other passenger told Thomas
that they did not have licenses, and the driver could not produce
a registration or other evidence of ownership, Thomas had an
objectively reasonable basis to detain the car and its occupants
to assure that the car was driven only by a properly licensed
driver and to confirm that it was not stolen.
The valid temporary detention of the car and its occupants
was not transformed into a violation of defendant's Fourth
Amendment rights simply because Officer Thomas asked him whether
he had contraband or a weapon. The Supreme Court has recognized
that even when the police have no grounds to detain a person,
"mere police questioning does not constitute a seizure." Florida
v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed.
2d 389, 398 (1991). "While most citizens will respond to a
police request, the fact that people do so, and do so even
without being told that they are free not to respond, hardly
eliminates the consensual nature of the response." INS v.
Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d
247, 255 (1984). It is only when "the circumstances of the
encounter are so intimidating as to demonstrate that a reasonable
person would have believed he was not free to leave if he had not
responded," that a Fourth Amendment violation may be found. Id.
at 216, 104 S. Ct. at 1763, 80 L. Ed. 2d at 255; see also State
v. Davis, 104 N.J. 490, 497-98 (1986); State v. Maryland, 327
N.J. Super. 436, 452-53 (App. Div.), certif. granted, ___ N.J.
___ (2000).
Consequently, if a motor vehicle is subject to a valid
police stop, the police may question the occupants, even on a
subject unrelated to the purpose of the stop, without violating
the Fourth Amendment, so long as such questioning does not extend
the duration of the stop. See United States v. Palomino, 100
F.3d 446, 449-50 (10th Cir. 1996); United States v. Shabazz, 993
F.2d 431 (5th Cir. 1993); Cartwright, supra, 85 Cal. Rptr. 2d at
794; Bell, supra, 51 Cal. Rptr. 2d at 122-24; State v. Griffith,
613 N.W.2d 72, 78-85 (Wis. 2000); see also Ohio v. Robinette, 519
U.S. 33, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996). But see
United States v. Holt, 229 F.3d 931, 935-37 (10th Cir. 2000). In
such a situation, the evidence of a motor vehicle violation
provides the justification for the stop, and a police officer may
question the occupants of the car during the stop without any additional justification.
In Shabazz, police officers stopped a car for speeding.
While running a computer check of the driver's license, the
officers questioned the driver and a passenger concerning their
recent whereabouts. After the police received conflicting
answers, they obtained the driver's consent to search the car,
which resulted in the discovery of drugs. On appeal from their
convictions, the driver and passenger argued that the police's
questions as to where they had been before their trip violated
the Fourth Amendment because those questions were "wholly
unrelated to the initial justification for the stop." Id. at
436. However, the Court concluded that the questioning did not
violate the Fourth Amendment because it did not extend the
duration of the stop:
[W]e reject any notion that a police
officer's questioning, even on a subject
unrelated to the purpose of the stop, is
itself a Fourth Amendment violation.
. . . Mere questioning, . . . is neither a
search nor a seizure. . . .

. . . .

. . . [Consequently,] appellants cannot
complain of questioning that took place
during the pendency of a computer check.
While appellants were under no obligation to
answer the questions, the Constitution does
not forbid law enforcement officers from
asking.

[Id. at 436-37.]

See also Bell, supra, 51 Cal. Rptr. 2d at 123 ("[I]nvestigative
activities beyond the original purpose of a traffic stop are
permissible as long as they do not prolong the stop beyond the
time it would otherwise take.").
Officer Thomas' statement to defendant that he looked
"really nervous" and inquiry as to whether defendant had any
contraband or weapon did not prolong the stop. When Thomas made
this inquiry, only a few minutes had elapsed since the initial
stop, and Thomas still had not issued a summons to the driver or
determined the ownership of the car. Thus, even if Thomas had
ignored defendant's unusually nervous demeanor, the stop of the
car and detention of the occupants incident to the stop would

have continued for some additional period of time. Under these
circumstances, Thomas' questioning of defendant did not
constitute a "seizure" within the meaning of the Fourth Amendment
or Article I, paragraph 7 of the New Jersey Constitution.
Moreover, even if Officer Thomas was required to have a
reasonable suspicion that defendant was participating in criminal
activity to inquire whether he possessed contraband or a weapon,
he had an objectively reasonable basis for such suspicion.
Before asking this question, Thomas had already ascertained that
the driver of the car did not have either a license or a
registration or other evidence of ownership of the car.
Consequently, Thomas had a reasonable basis to conduct further
investigation to determine whether any of the other occupants
owned or had permission to use the car. See Dickey, supra, 152
N.J. at 479-80; State v. Chapman, 332 N.J. Super. 452, 462-66
(App. Div. 2000). The most obvious form of investigation for
this purpose was additional questioning. When defendant
responded to Thomas' questions by acting unusually nervous, there
was a reasonable basis for Thomas' suspicions to be enhanced and
for him to broaden the scope of his inquiries. See United States
v. Lyton, 161 F.3d 1168, 1170-71 (8th Cir. 1998); United States
v. Perez, 37 F.3d 510, 513-14 (9th Cir. 1994); United States v.
Soto, 988 F.2d 1548, 1555 (10th Cir. 1993). The additional
inquiry of defendant concerning possession of contraband or a
weapon was brief and no more intrusive than required to determine
whether he and his companions were operating the car without
permission of the owner or engaged in other unlawful activity.
Therefore, this inquiry satisfied the ultimate Fourth Amendment
"touchstone" of "reasonableness." Florida v. Jimeno, 500 U.S.
248, 250, 111 S. Ct. 1801, 1803, 114 L. Ed. 2d 297, 302 (1993).
Accordingly, the order granting defendant's motion to
suppress is reversed, and the case is remanded to the trial
court.