SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4039-18T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MICHAEL D. WHITE, 

Defendant-Respondent.

____________________________

Submitted August 13, 2019 – Decided August 30, 2019

Before Judges Sumners and Moynihan. 

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Gloucester 

County, Indictment No. 18-01-0079. 

Charles A. Fiore, Gloucester County Prosecutor, 

attorney for appellant (Elizabeth Katherine Tornese, 

Assistant Prosecutor, on the brief). 

Joseph E. Krakora, Public Defender, attorney for 

respondent (Ronald Craig Appleby, Assistant Deputy 

Public Defender, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2

A-4039-18T2

By leave granted, the State appeals from the motion judge's order granting

defendant Michael D. White's motion to suppress two statements he gave to 

detectives to which he presented himself after learning he was suspected of 

involvement in a shooting in the apartment complex in which he lived; and from 

the denial of its subsequent motion for reconsideration. It argues:

POINT I

THE SUPPRESSION ORDER AND DENIAL OF 

RECONSIDERATION MUST BE REVERSED AS 

THE TOTALITY OF THE CIRCUMSTANCES 

DEMONSTRATE THAT DEFENDANT KNEW WHY 

HE WAS SPEAKING WITH DETECTIVES AND 

VOLUNTARILY WAIVED HIS MIRANDA RIGHTS 

TWICE.

POINT II

THE TRIAL COURT ERRONEOUSLY APPLIED 

THE FIVE-FACTOR TEST SET FORTH IN STATE 

V. O'NEILL WHEN THE FACTS DICTATE THE USE 

OF THE TRADITIONAL TOTALITY OF THE

CIRCUMSTANCES ANALYSIS.

Unpersuaded by these arguments, we affirm. 

When reviewing a judge's ruling on a motion to suppress, we defer to those 

factual findings that are supported by sufficient record evidence but disregard 

findings that are clearly mistaken. State v. Hubbard, 222 N.J. 249, 262 (2015). 

We, however, review the judge's legal conclusions de novo. Id. at 263. 
3

A-4039-18T2

From the motion judge's supported findings, we glean defendant was 

arrested when he reported to the Glassboro police department approximately

twenty-four hours after a complaint-warrant, see Rule 3:2-1; Rule 3:2-3, was 

filed on October 28, 2017, by a Glassboro police detective charging defendant 

with crimes related to the shooting death of Michael Fleming, including firstdegree murder.

1 Police investigation following discovery of the victim on 

October 28 revealed the victim's girlfriend, who knew defendant for "at least 

seven years" prior to the shooting, identified defendant as the person who shot 

and killed Fleming. 

There is no evidence defendant was processed on the complaint-warrant 

or advised of the charges by the arresting officers. A little more than an hour 

after defendant arrived at the police department, the Glassboro detective and a 

Gloucester County Prosecutor's Office detective administered Miranda2

warnings and took a statement from defendant. Neither detective advised 

 

1

 The complaint-warrant is not part of the appellate record so we do not know 

the exact charges set forth therein except as set forth in the motion judge's 

opinion.

2

 Miranda v. Arizona, 384 U.S. 436 (1966).
4

A-4039-18T2

defendant of the charges against him. That failure necessitates the suppression 

of the statement defendant gave to them.

In State v. Vincenty, our Supreme Court restated its holding in State v. 

A.G.D., 178 N.J. 56, 68 (2003), that "[t]he government's failure to inform a 

suspect that a criminal complaint or arrest warrant has been filed or issued 

deprives that person of information indispensable to a knowing and intelligent 

waiver of rights." 237 N.J. 122, 125 (2019) (alteration in original) (quoting 

A.G.D., 178 N.J. at 68). The detectives who questioned Vincenty advised him:

he had been identified from a video recording, photograph and DNA evidence 

as one of the assailants in an armed attempted robbery and attempted murder of

a victim;3the judge had already charged him after police showed the judge 

evidence; the charges included gun charges. Id. at 126-28. Detectives also 

showed Vincenty "a list of the charges and explained to him that he had been 

charged with attempted homicide, robbery, and conspiracy to commit robbery." 

Id. at 128. The Court disagreed with our ruling that the record showed Vincenty

was advised of the charges against him and, instead, determined the failure to 

 

3

 Vincenty "acknowledged that he looked like one of the assailants." Vincenty, 

237 N.J. at 136.
5

A-4039-18T2

advise Vincenty of those charges "deprived [him] of the ability to knowingly 

and intelligently waive his right against self-incrimination." Id. at 126.

No doubt mindful of its holding in State v. Nyhammer, 197 N.J. 383, 404

(2009) – that "[t]he 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 Court reiterated 

the basis for suppression as enunciated in A.G.D.:

This Court held that the defendant's confession should 

have been suppressed, A.G.D., 178 N.J. at 69, because 

the "government's failure to inform a suspect that a 

criminal complaint or arrest warrant has been filed or 

issued deprives that person of information 

indispensable to a knowing and intelligent waiver of 

rights," id. at 68. If suspects are not informed that a 

criminal complaint or arrest warrant has been filed 

against them, they necessarily lack "critically important 

information" and thus "the State cannot sustain its 

burden" of proving a suspect has knowingly and 

intelligently waived the right against selfincrimination. Ibid. Because the detectives failed to 

inform the defendant that an arrest warrant had been 

issued, the defendant in A.G.D. was simply unable to 

execute a knowing and intelligent waiver of his right 

against self-incrimination. Ibid. 

[Vincenty, 237 N.J. at 133-34 (emphasis added).]

The Vincenty Court explicated that charged defendants may waive their 

right against self-incrimination, but, 
6

A-4039-18T2

[a]s that chain of events demonstrates, Vincenty's 

ability to knowingly and intelligently decide whether to 

waive his right against self-incrimination was 

fundamentally altered when he was informed of the 

criminal charges filed against him. Rather than inform 

Vincenty fully of the charges at the outset, the 

detectives told him at various points during the 

interrogation that some type of charges were filed 

against him. It was not until late in the interrogation --

well after the detectives read Vincenty his rights and 

asked him to waive his right against self-incrimination 

-- that the detectives detailed the actual charges 

Vincenty was facing. At the point when the detectives 

asked Vincenty to waive his right against selfincrimination, they failed to inform him of the specific 

criminal charges filed against him. Withholding that 

"critically important information" deprived Vincenty of 

the ability to knowingly and voluntarily waive the right 

against self-incrimination.

[Id. at 135 (emphasis added).]

The Court's holding makes clear, as the motion judge perceived, the failure of 

police to advise a defendant of the specific charges set forth in the filed 

complaint-warrant leaves the State without ability to prove that the defendant 

knowingly and intelligently waived his or her right against self-incrimination. 

See ibid. 

In State v. Henderson, 397 N.J. Super. 398 (App. Div. 2008), aff'd as 

modified, 208 N.J. 208 (2011), police advised a defendant they had an warrant 

for his arrest and were taking him to the homicide unit; the defendant responded 
7

A-4039-18T2

he knew "what it's all about." Id. at 404. We "decline[d] the invitation to hold 

that the principles announced in A.G.D. extend to also informing an accused of 

the basis for the arrest warrant, particularly . . . when defendant well-understood 

why he was arrested." Ibid. The Vincenty Court did not so decline and required

that police advise a defendant of the details of a defendant's particular charges. 

See Vincenty, 237 N.J. at 134. 

It was not enough, as the State contends, that defendant knew he was a 

suspect in Fleming's shooting when he walked into the police department. As 

the motion judge found, the State failed to present clear evidence that defendant 

knew from the accusations he heard prior to going to the police department that 

the victim of the shooting was dead. Even if he did know, police were still 

obligated to explicitly advise him of the charges lodged in the complaintwarrant. Like the "defendant in A.G.D.[,] [defendant] was purposely kept in the 

dark by his interlocutors of this indispensable information." Nyhammer, 197 

N.J. at 404-05. The State's failure to offer evidence that defendant was fully 

informed of those charges leaves it unable to prove beyond a reasonable doubt 

that defendant waived his right against self-incrimination, necessitating 

suppression of the statement he gave to the Glassboro and Gloucester County 

Prosecutor's Office detectives.
8

A-4039-18T2

The motion judge also suppressed the statement defendant gave to a New 

Jersey State Police detective which commenced about two-and-one-quarter 

hours after the first statement ended. That detective had been called in to 

administer a polygraph examination to defendant. After it was determined the 

polygraph could not be administered because defendant had self-inflicted cuts 

on his arms, defendant and the detective, according to the motion judge, 

"continued to talk about the shooting [and] [e]ventually[] [defendant] confessed 

that he shot and killed . . . Fleming." Notably, at the start of the second 

statement, defendant was re-Mirandized and advised by the Glassboro detective 

"of the charges in the compliant[-]warrant, most specifically the murder."

The State argues the motion judge erred by applying the five-factor test 

set forth in State v. O'Neill, 193 N.J. 148, 180-81 (2007), instead of the totalityof-the-circumstances test set forth in Nyhammer, 193 N.J. at 404, in 

determining that the "spill over" from defendant's first statement required 

suppression of the statement to the State police detective. We are unconvinced.

The Nyhammer Court recounted:

In O'Neill, we applied the totality-of-the-circumstances 

approach to the "'question-first, warn-later' 

interrogation procedure," in which the police first 

question a suspect in custody without the benefit of 

Miranda warnings and, after eliciting incriminating 

statements, then issue Miranda warnings and resume 
9

A-4039-18T2

questioning for the purpose of eliciting incriminating 

statements admissible at trial. 193 N.J. at 154-55. We 

held "that when Miranda warnings are given after a 

custodial interrogation has already produced 

incriminating statements, the admissibility of postwarning statements will turn on whether the warnings 

functioned effectively in providing the defendant the 

ability to exercise his state law privilege against selfincrimination." Id. at 180-81. In O'Neill, we 

specifically eschewed a bright-line rule and instead 

followed a traditional multi-prong test requiring a 

consideration of all relevant factors. Id. at 181.

[Nyhammer, 197 N.J. at 404 (second emphasis added).]

In O'Neill, the Court held, as a matter of State law, 

when Miranda warnings are given after a custodial 

interrogation has already produced incriminating 

statements, the admissibility of post-warning 

statements will turn on whether the warnings 

functioned effectively in providing the defendant the 

ability to exercise his state law privilege against selfincrimination. In making that determination, courts 

should consider all relevant factors, including: (1) the 

extent of questioning and the nature of any admissions 

made by defendant before being informed of his 

Miranda rights; (2) the proximity in time and place 

between the pre- and post-warning questioning; (3) 

whether the same law enforcement officers conducted 

both the unwarned and warned interrogations; (4) 

whether the officers informed defendant that his prewarning statements could not be used against him; and 

(5) the degree to which the post-warning questioning is 

a continuation of the pre-warning questioning. The 

factual circumstances in each case will determine the 

appropriate weight to be accorded to any factor or 

group of factors.
10 A-4039-18T2

[O'Neill, 193 N.J. at 181-82.]

The Court recognized Miranda's five required warnings "ensure that an 

individual would have a meaningful opportunity to exercise his right against 

self-incrimination," and that the burden is on the State "to demonstrate not only 

that the individual was informed of his rights, but also that he has knowingly,

voluntarily, and intelligently waived those rights, before any evidence acquired 

through the 'interrogation can be used against him.'" Nyhammer, 197 N.J. at 

400-01 (quoting Miranda, 384 U.S. at 467). "The essential purpose of Miranda

is to empower a person—subject to custodial interrogation within a policedominated atmosphere—with knowledge of his basic constitutional rights so 

that he can exercise, according to his free will, the right against selfincrimination or waive that right and answer questions." Id. at 406. 

Similarly, the requirement that a charged defendant be apprised of the 

charges in the complaint-warrant – what Judge Arnold described as a sixth 

Miranda warning added by our Supreme Court in A.G.D.4 – provides 

information, without which accused defendants "cannot knowingly and 

intelligently determine whether to waive their right against self-incrimination 

 

4

 32 N.J. Practice, Criminal Practice and Procedure, §17.4, at 250-51 (Leonard 

N. Arnold) (2018 ed.).
11 A-4039-18T2

. . . ." Vincenty, 237 N.J. at 134. Thus, we perceive no reason why the O'Neill

analysis should not be followed here. 

We discern no difference between the scenario in O'Neill where police 

failed to initially administer Miranda warnings and this case where they failed 

to initially advise defendant of his charges. The O'Neill Court determined the

"principle established in . . . A.G.D.—that police officers conducting a custodial 

interrogation cannot withhold essential information necessary for the exercise 

of the privilege—is equally applicable here" where detectives, prior to 

administering Miranda warnings, questioned the defendant and "extract[ed] 

damning admissions." O'Neill, 193 N.J. at 179.

The two-step, "question-first, warn-later" interrogation 

[utilized by the detectives in O'Neill] is a technique 

devised to undermine both the efficacy of Miranda and 

our state law privilege. As in . . . A.G.D., we must set 

clear standards that will discourage law enforcement 

agencies from engaging in conduct that will deny a 

defendant subject to a custodial interrogation a true 

opportunity to assert his right against selfincrimination.

[Id. at 180.]

The failure to inform defendant of the charges against him was the type 

of "end-run[] around Miranda" decried by the O'Neill Court, O'Neill, 193 N.J.

at 184-85; as such, it is the equivalent of a failure to advise defendant of his 
12 A-4039-18T2

Miranda rights. Unlike State v. Yohnnson, 204 N.J. 43, 61 (2010), relied upon 

by the State, where the investigators had no reason to believe that the arresting 

officers did not Mirandize the defendant, the Glassboro detective prepared the 

complaint-warrant and, as the motion judge found, the State presented no 

evidence that defendant was advised of the charges after he presented at the 

police department and before that Glassboro detective first contacted him. 

We fully agree with the motion judge's relation of his findings to the five 

O'Neill factors. Much like the defendant in O'Neill who "had delivered to the 

detectives a motive, opportunity, and personal involvement in a crime that the 

detectives were able to exploit in further questioning defendant," id. at 182, 

defendant, in his initial statement provided detectives with inculpatory 

information, including, as the motion judge found,

knowing the victim, being present in the . . . apartment 

complex on the evening of the murder, engaging in 

prior drug transactions with the victim, having a prior 

dispute with the victim over a motor vehicle [which 

dispute also involved the mother of the victim's 

girlfriend who identified defendant as the shooter], and 

believing that someone from the apartment complex 

who knew of his drug distribution habits set him up for 

the home[-]invasion robbery which took place in his 

apartment and in front of the females and children that 

resided with him 
13 A-4039-18T2

after defendant stopped buying marijuana from a supplier to whom he had been 

introduced by the victim.

The judge also found the State Police detective questioned defendant 

about two-and-one-half hours after the first statement was taken by the 

Glassboro and Prosecutor's Office detectives "under basically the same 

circumstances and environment": under arrest in the same police station, in the 

same or similar room. Although the judge acknowledged different detectives 

conducted the two interviews, the Glassboro detective "introduced the second 

session by advising [d]efendant of the charges against him." The judge also 

noted the subject matter of both interviews "was identical" save for the 

discussion about the polygraph and that the State Police detective was briefed 

by the other two detectives "and the briefing would most definitely have 

included the statements made by [d]efendant during the first session." The judge 

further found there was no evidence defendant was informed that any statement 

he made during the first interview could not be used against him; defendant, 

therefore, "proceeded with the second interrogation session with the knowledge" 

that the inculpatory statements he made during the first session could be used 

against him. Lastly, the judge found, notwithstanding the break between the 

first and second statements, the second statement "was a continuation of the 
14 A-4039-18T2

earlier interrogation" with the subject matter, environment and defendant's 

custodial status remaining the same. 

Under the tenets announced in O'Neill, we see no error in the judge's

determinations.

5

Affirmed.

 

5 Although we determine the O'Neill factors should be used in analyzing the 

admissibility of defendant's second statement, we note the motion judge also 

concluded that although most of the traditional totality of the circumstances 

factors – defendant's personal characteristics and prior experience with the 

criminal justice system, police techniques and the length of the statements –

supported a finding of voluntariness, the second statement's inextricable link to 

the first mandated suppression of the latter statement.