STATE OF NEW JERSEY VS. ANTONIO CUNNINGHAM (16-02-0456, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5380-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTONIO CUNNINGHAM, a/k/a
TONY CUNNINGHAM, and ANTHONY
CUNNINGHAM,

Defendant-Appellant.
_______________________________

Submitted May 23, 2018 – Decided June 25, 2018

Before Judges Manahan and Suter.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
16-02-0456.

Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender II, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney
for respondent (Adam D. Klein, Deputy Attorney
General, of counsel and on the brief).

PER CURIAM

Defendant Antonio Cunningham appeals from his conviction

after pleading guilty to amended charges of first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1) (count one) and

third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a), 2C:15-

1(a)(1) (count five). Specifically, defendant challenges the

trial court's denial of his motion to suppress statements made to

police. Defendant argues that he was illegally arrested without

probable cause prior to the time he gave the statement and therefor

the statement should be suppressed pursuant to the "fruit of the

poisonous tree doctrine." Having carefully reviewed the record

and the arguments raised on appeal, we affirm.

Following an indictment returned by a Camden County Grand

Jury, defendant moved to suppress statements given to Detective

Paul Hafner and Detective Michael Shomo of the Cherry Hill Police

Department who, at the time, were assigned to the Camden County

Prosecutor's Office, Homicide Unit (CCPO). Defendant gave the

statement after receiving his Miranda1 warnings. A testimonial

hearing on the motion took place on October 28 and November 9,

2016. On November 9 and November 17, 2016, the judge rendered an

oral opinion and entered an order denying defendant's motion.

In June 2017, defendant entered into a plea agreement. During

his plea, defendant admitted to striking H.H.2 in the head on

1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
We use initials to protect the privacy of the family of the
victim.

2 A-5380-16T1
February 24, 2015, and acknowledged that he acted under

circumstances manifesting an extreme indifference to H.H.'s life.

Additionally, defendant pled guilty to an amended charge of theft.

He was sentenced on July 21, 2017 to a fifteen-year term of

imprisonment subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2, with a five-year period of post-release parole

supervision as to count one, and a concurrent five-year term of

imprisonment as to count five. Appropriate fines and fees were

imposed, jail credits given, and the remaining counts of the

indictment were dismissed.

Defendant was employed by the River Road Trucking Company

(RRTC) in Camden. Due to his primary duty to assist with early

morning deliveries, defendant was permitted to reside at the

premises. The victim, H.H., was employed by RRTC and also lived

at the premises. H.H.'s primary duty was to distribute toll monies

to the truck drivers each morning.

Around midnight on February 24, 2015, H.H. was in the trucking

company office sitting in his recliner when George Valentine, the

owner of RRTC, gave him $500 in separate envelopes for distribution

to the drivers the following morning. Valentine did not observe

defendant but because the bathroom light was on, he "believed

[defendant] was in the bathroom because his bike was next to the

sofa where he slept."

3 A-5380-16T1
 At around 4:45 a.m. on February 24, 2015, an employee of RRTC

arrived at the office to retrieve his toll monies. After calling

out for H.H. without receiving a response, the employee entered

the office and found H.H. unconscious in his recliner. The

employee called 9-1-1.

Police and detectives from the CCPO responded to the scene.

H.H. was transported to Cooper Hospital where he was pronounced

dead. The coroner ruled his death a homicide caused by blunt

force trauma to the head.

That same day, recorded statements were taken from RRTC

employees at the prosecutor's office. A follow-up interview with

Valentine was conducted by Detective Frank Smith, during which

time consent was given to obtain surveillance video of the exterior

premises of the trucking company. Smith and Valentine watched the

video together. The video depicted defendant exiting the RRTC

office at 1:26 a.m. and walking around the side of the office.

Defendant then proceeded to go towards the back of the office. As

a result of what was depicted in the video, defendant was

considered a person of interest.

Valentine left the prosecutor's office and returned to RRTC.

Soon afterward, he corresponded with the CCPO that defendant was

seen on a bicycle traveling in the direction of the RRTC. Hafner

and Shomo responded to the RRTC parking lot. While at that

4 A-5380-16T1
location the detectives were approached by defendant, who said to

them, "I heard you guys were looking for me." Defendant then

agreed to give a recorded statement at the CCPO and accompany the

detectives in their vehicle.

Since the police vehicle did not have a partition, for the

detectives' safety, defendant was frisked, handcuffed and placed

in the rear of the police vehicle,3 along with defendant's bicycle.

Defendant was then transported to the CCPO. Upon arrival,

defendant was placed in a small, locked4 interview room where the

handcuffs were removed. Defendant was administered his Miranda

warnings and voluntarily gave a recorded statement. Defendant was

detained for several hours after the statement while a further

investigation was conducted based upon the content of the

statement. Defendant was ultimately released. After several

additional interviews with other witnesses, defendant was

eventually charged with the murder of H.H.

3
Our Supreme Court noted in State v. Dickey, that it is State
Police practice that when there is no partition between the front
and rear of the car, troopers handcuff any rear-seat passengers.
152 N.J. 468, 473 (1998).
4
It is unclear as to whether the door was locked, but the court
found it was locked because the alternative would be unreasonable;
interviewees would be able to roam the prosecutor's office, a
repository of sensitive information.

5 A-5380-16T1
 POINT I

DEFENDANT'S STATEMENT MUST BE SUPPRESSED
BECAUSE IT WAS OBTAINED AS A DIRECT RESULT OF
AN ARREST DEVOID OF PROBABLE CAUSE, U.S.
CONST., AMEND. IV; N.J. CONST., ART. I, [¶]
7.
[A.] Defendant was Unlawfully
Arrested.

[B.] The Taint of the Unlawful
Arrest Was Not Purged Before
Defendant Gave His Statement.

Defendant contends that his conveyance and detention at the

CCPO prior to the statement constituted an unreasonable seizure

under the Fourth Amendment to the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution. Defendant

argues that as a result of the illegal seizure, the "fruit" of his

subsequent statement should have been suppressed. To the contrary,

the State argues that defendant was voluntarily transported to the

CCPO and that, thereafter, his detention was investigatory.

We review orders granting motions to suppress evidence giving

deference to the trial court's findings of fact that are supported

by sufficient credible evidence in the record. State v. Gamble,

218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224,

243 (2007)). In the usual case, we accept those findings because

they "are substantially influenced by [an] opportunity to hear and

see the witnesses and to have the 'feel' of the case, which a

reviewing court cannot enjoy." Id. at 424-25 (alteration in

6 A-5380-16T1
original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We

disturb a trial court's findings of fact only when "so clearly

mistaken 'that the interests of justice demand intervention and

correction.'" Elders, 192 N.J. at 244 (quoting Johnson, 42 N.J.

at 162.) Our review of a trial court's legal conclusions is

plenary. State v. Handy, 412 N.J. Super. 492, 498 (App. Div.

2010) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

When analyzing a warrantless search and seizure, we start

with the parameters defined by our Federal and State Constitutions.

These protections require police to first secure a warrant before

seizing a person or conducting a search of a home or a person.

State v. Watts, 223 N.J. 503, 513 (2015); State v. Reece, 222 N.J.

154, 167 (2015).

[B]oth the Fourth Amendment to the United
States Constitution and Article I, Paragraph
7 of the New Jersey Constitution guarantee to
New Jersey's citizens "[t]he right to walk
freely on the streets of a city without fear
of an arbitrary arrest." State v. Gibson, 218
N.J. 277[, 281] (2014). When evaluating the
reasonableness of a detention, the "totality
of circumstances surrounding the police-
citizen encounter" must be considered. State
v. Privott, 203 N.J. 16, 25 (2010) (quoting
[State v. Davis, 104 N.J. 490, 504 (1986)]).

[State v. Coles, 218 N.J. 322, 343 (2014)
(alteration in original).]

7 A-5380-16T1
 As this court has noted, police officers do not necessarily

place someone in custody simply by asking them to accompany them

to a police station. See State v. Purnell, 310 N.J. Super. 407,

421-22 (App. Div. 1998).

The Constitution also allows a person the privilege, "upon

noting a police presence, to decide that he or she wishes to have

nothing to do with the police, without risking apprehension solely

by reason of the conduct manifesting that choice." State v. L.F.,

316 N.J. Super. 174, 179 (App. Div. 1998) (quoting State v. Ruiz,

286 N.J. Super. 155, 162-63 (App. Div. 1995)).

While the "warrantless seizure of a person is 'presumptively

invalid as contrary to the United States and the New Jersey

Constitutions,'" Coles, 218 N.J. at 342 (quoting State v. Mann,

203 N.J. 328, 337-38 (2010)), there remains a critical "balance

to be struck between individual freedom from police interference

and the legitimate and reasonable needs of law enforcement." Id.

at 343.

Applying our standard of review, we are satisfied that the

judge's credibility and other factual findings from the

suppression hearing are well-founded. There is ample support in

the record for the judge's finding that defendant was not under

arrest or in custody when he agreed to accompany the detectives

to the CCPO.

8 A-5380-16T1
 While we agree that defendant was subjected to investigative

detention while at the CCPO, we do not agree that the detention

became a "de facto" arrest.

An investigative stop may become "a de facto arrest when 'the

officers' conduct is more intrusive than necessary for an

investigative stop.'" Dickey, 152 N.J. at 478 (quoting United

States v. Jones, 759 F.2d 633, 636 (8th Cir. 1985)). Although

there is no bright-line test to determine when an investigative

stop becomes a de facto arrest, courts have identified several

considerations relevant to the determination, including, most

significantly, the temporal duration of the stop. An important

concern in that regard "is whether the officer used the least

intrusive investigative techniques reasonably available to verify

or dispel his suspicion in the shortest period of time reasonably

possible." Davis, 104 N.J. at 504. "Another factor is 'the degree

of fear and humiliation that the police conduct engenders.'"

Dickey, 152 N.J. at 479 (quoting United States v. Bloomfield, 40

F.3d 910, 917 (8th Cir. 1994) (quoting United States v. Lego, 855

F.2d 543, 544-45 (8th Cir. 1988))).

Here, the detectives believed that defendant was a person of

interest in a homicide. The detectives' encounter with defendant,

which he initiated, and defendant's agreement to accompany them

was not consistent with an arrest. The detectives sought to obtain

9 A-5380-16T1
a statement from defendant and the manner in which they obtained

the statement was no more intrusive then required for the purpose

of the detention.

In sum, we conclude that under the totality of the

circumstances presented here, prior to defendant's statement, he

was not under arrest. As such, the judge correctly denied

defendant's motion to suppress.

Finally, on appeal the State argues that should we conclude

that the "seizure" of defendant was unlawful, predicated upon

sufficient attenuation, the exclusionary rule would not apply.

See State v. Smith, 155 N.J. 83, 100, cert. denied, 525 U.S. 1033

(1998). In the ordinary cause, [e]vidence obtained as the fruit

of an unlawful search or seizure must be suppressed." Ibid.

(citations omitted). However, as our Supreme Court has held, the

precept stated in the exclusionary rule will not apply where the

connection between police illegality and the seizure of evidence

is sufficiently attenuated. See, e.g., State v. Williams, 192

N.J. 1, 15 (2007); Smith, 155 N.J. at 100.

Given our decision on the issue of the legality of defendant's

seizure, we need not address the attenuation argument, which was

not raised before the motion judge.

Affirmed.

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