State v. Kelsey, A-4850-10T1; Appellate Division; opinion by Fuentes, P.J.A.D.; decided and approved for publication February 13, 2013. Before Judges Fuentes, Graves and Harris. On appeal from the Law Division, Mercer County, Complaint No. S-2011-0249. [Sat below: Judge Billmeier.] DDS No. 14-2-9004 [10 pp.]

By leave granted, the state appeals from the order of the trial court denying its application to compel defendant Mylon Kelsey, a police officer in the city of Trenton, to produce a flashlight that may or may not be in defendant’s possession. The state claims it has probable cause to believe the flashlight may have been used by defendant illegally as a weapon, when defendant took part in a street brawl outside of a bar, during which at least one person sustained serious bodily injury from allegedly being hit with the flashlight.

Police officers who responded to the scene of the street brawl did not arrest or charge anyone. The following day, the father of one the victims contacted the Trenton Police Department’s Internal Affairs Bureau and stated that some of the participants in the fight were off-duty Trenton police officers who were patrons of the bar. After interviewing victims and eyewitnesses, the Trenton Police Department initiated a formal internal affairs investigation.

Officers from the Trenton Internal Affairs Bureau took formal written statements from four victims and two eyewitnesses. Four of the interviewees described defendant’s vehicle as the car from which a black man — defendant is black — removed a black flashlight to hit several people involved in the fight. Defendant’s photograph was selected by these witnesses as depicting the man who had removed the flashlight from the car. Several witnesses also saw defendant leaving the scene of the brawl, retrieving the flashlight from his vehicle, using the flashlight as a weapon to strike people involved in the altercation, and returning the flashlight to his vehicle.

On the state’s application, the trial court issued a warrant to search defendant’s vehicle. The officers found an empty flashlight box in the cargo area. The state believes, by way of inference, that the box contained the flashlight used by defendant in the altercation. The actual flashlight has not been found.

The trial court initially granted the state’s ex parte application to compel defendant to turn over the flashlight, if he had it in his possession. On defendant’s motion for reconsideration, the court vacated its prior order, holding that to compel defendant to turn over the flashlight under these circumstances would violate defendant’s right against self-incrimination. The court concluded that such an order would be "comparable to having Defendant make the prosecution’s case against himself. The act of actually turning over the flashlight is inherently incriminating. Thus, Defendant is constitutionally protected from complying with such request."

Held: Compelling defendant to turn over a flashlight that the state claims it has probable cause to believe may have been used by defendant illegally as a weapon would violate defendant’s right against self-incrimination.

The right against self-incrimination is found in the Bill of Rights, under the Fifth Amendment to the U.S. Constitution, as made applicable to the states through the Fourteenth Amendment. The N.J. Constitution does not contain a similar provision; however, the privilege against self-incrimination is firmly established as part of the common law of New Jersey and has been incorporated into the New Jersey Rules of Evidence.

On appeal, the state cites a long line of cases that have upheld, on a finding of probable cause, the involuntary taking of physical evidence from a defendant’s person or related to a defendant’s physical action. The state’s line of reasoning fails to appreciate that none of the cases cited have compelled defendants to divulge the location of incriminating physical evidence, or otherwise incriminate themselves by the mere act of responding to the question itself. As Chief Justice Weintraub noted in In re Addonizio 45 years ago, the right against self-incrimination protects a defendant from being "subpoenaed to produce the gun or the loot, no matter how probable the cause, for the Fifth [Amendment] protects the individual from coercion upon him to come forward with anything that can incriminate him."

Here, under Addonizio, the state does not have the right to compel defendant to incriminate himself by producing the flashlight.

The appellate panel affirms the trial court’s holding that compelling defendant to turn over the flashlight would violate defendant’s right against self-incrimination.

For appellant — Stephanie A. Katz, Assistant Prosecutor (Joseph L. Bocchini Jr., Mercer County Prosecutor). For respondent — Scott A. Krasny (Furlong & Krasny).