5Th Amendment Protects Against the Forced Turnover of Incriminating Evidence

A Trenton police officer who allegedly used a flashlight to injure people during a fight outside of a Trenton bar cannot be forced to turn over the flashlight. The New Jersey Appellate Division found that compelling the officer to turn over the evidence would violate his 5th Amendment right against self-incrimination.

In the first hours of the morning on January 17, 2011, police received reports of a large brawl occurring outside of a bar in Trenton. At the time there were no arrests made in connection with injuries caused to victims.

The next day, however, the father of one of the victims alerted police that off-duty Trenton police officers were involved in the brawl. An internal investigation ensued and the Defendant, Mylon Kelsey, was identified by witnesses as having taken a black flashlight from his car and knocked people’s heads with it during the fight.

Police searched Kelsey’s car and found an empty flashlight box inside, but were unable to locate the flashlight itself. Hence, they turned to the courts to try to compel Kelsey to hand over the flashlight.

Initially the trial court agreed with the State in forcing him to hand over the evidence, but upon reconsideration, reversed its decision. The Court distinguished other types of evidence such as urine and blood samples, which courts regularly compel defendants to turn over, from the flashlight, explaining that those types of evidence are for identification and comparison uses. The flashlight, on the other hand, is “inherently incriminating” according to the trial court.

The Appellate Court agreed with the trial court’s decision after reconsideration and cited In Re Addonizio, 248 A.2d 531 (1968) saying, “the right against 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.”

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