SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4530-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT E. WILLIAMS A/K/A
ROBERT LOVE,
Defendant-Appellant.
________________________________________________
Argued October 6, 2009 - Decided
Before Judges Skillman, Gilroy and
Simonelli.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment
No. 06-11-1044.
Alyssa Aiello, Assistant Deputy Public
Defender, argued the cause for appellant
(Yvonne Smith Segars, Public Defender,
attorney; Ms. Aiello, of counsel and on the
brief).
Steven A. Yomtov, Deputy Attorney General,
argued the cause for respondent (Anne
Milgram, Attorney General, attorney; Mr.
Yomtov, of counsel and on the brief).
APPROVED FOR PUBLICATION
November 23, 2009
APPELLATE DIVISION
November 23, 2009
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The opinion of the court was delivered by
SKILLMAN, P.J.A.D.
The primary issue presented by this appeal is whether
flight from an unconstitutional investigatory stop that could
justify an arrest for obstruction automatically justifies the
admission of any evidence revealed during the course of that
flight. We conclude that such evidence is admissible only if
there is a significant attenuation between the unconstitutional
stop and the seizure of evidence and that commission of the
offense of obstruction is insufficient by itself to establish
significant attenuation.
On August 25, 2006, Officer Delaprida of the Elizabeth
Police Department was dispatched together with thirteen to
fifteen other officers to the courtyard of a large housing
complex located in a high-crime area. Delaprida and the other
officers were sent to the housing complex to deter, through a
"police presence," a possible retaliatory shooting for a
homicide committed several days earlier.
Officer Delaprida had no information concerning the basis
for the report of a possible retaliatory shooting. Delaprida
also had no description or other information concerning the
person or persons who might be planning the shooting.
3 A-4530-07T4
When Officer Delaprida arrived at the housing complex with
his partner around 8:30 p.m., they observed a large number of
people in the courtyard, including children and older people,
"just hanging out." One of the persons the officers observed
was defendant, who was riding a bicycle diagonally in front of
them.
When defendant recognized the officers, who were dressed in
plain clothes, as police, he quickly started pedaling away and
also put his right hand in his pants pocket. The officers
ordered defendant to stop, but he kept pedaling "at a steady
pace," and the officers started to run after him. Defendant
then saw other officers entering the courtyard from the
direction he was headed and slowed down. At this point, Officer
Delaprida and his partner caught up with defendant, and grabbed
him while still on his bicycle. As the officers grabbed him,
defendant pulled his hand out of his pocket and threw a box to
the ground. The box was later determined to contain a
substantial amount of cocaine. Officer Delaprida estimated that
only four or five seconds elapsed between when he ordered
defendant to stop and when he grabbed him on his bicycle.
Defendant was indicted for possession of cocaine, in
violation of N.J.S.A. 2C:35-10(a)(1); possession of cocaine with
the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1)
4 A-4530-07T4
and N.J.S.A. 2C:35-5(b)(2); and possession of cocaine within 500
feet of a public housing facility with the intent to distribute,
in violation of N.J.S.A. 2C:35-7.1. Defendant subsequently
moved to suppress the evidence against him.
Based on the previously described testimony by Officer
Delaprida, the trial court concluded in a written opinion that
the report of a possible retaliatory shooting and the
observations by Officer Delaprida and his partner of defendant
pedaling his bicycle away from them and putting his hand in a
pocket did not provide the reasonable suspicion defendant was
engaged in criminal activity required for a Terry stop.1
Nevertheless, the court denied defendant's motion to suppress on
the ground that defendant's failure to immediately stop his
bicycle in response to Officer Delaprida's original command
established probable cause to arrest him for obstruction, in
violation of N.J.S.A. 2C:29-1(a), even though that command was
unconstitutional, and that defendant's apparent violation of the
obstruction statute provided sufficient grounds to justify the
stop that resulted in him discarding the cocaine hidden in his
pocket.
1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
5 A-4530-07T4
Defendant subsequently entered into a plea bargain under
which he pled guilty to the charge of possession of cocaine, and
the State dismissed the possession with intent to distribute
charges. The trial court sentenced defendant to a four-year
term of imprisonment, with two years of parole ineligibility.
Defendant appeals from the denial of his motion to
suppress. See R. 3:5-7(d) (preserving right to appeal denial of
motion to suppress notwithstanding guilty plea).
I.
We first consider the validity under the Fourth Amendment
to the United States Constitution and Article I, paragraph 7 of
the New Jersey Constitution of the stop of defendant while he
was riding his bicycle in the housing complex courtyard.
A police encounter with a person constitutes an
investigatory stop subject to the protections of these
constitutional provisions if the facts objectively indicate that
"the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers'
requests or otherwise terminate the encounter." State v.
Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick,
501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402
(1991)). It is undisputed that defendant was subject to such a
6 A-4530-07T4
stop probably when Officer Delaprida ordered him to stop and
certainly when Officer Delaprida and his partner grabbed him on
his bicycle. See State v. Crawley, 187 N.J. 440, 450, cert.
denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006);
Tucker, supra, 136 N.J. at 165-66; State in Interest of C.B.,
315 N.J. Super. 567, 572-73 (App. Div. 1998).
"[A]n investigatory stop is valid 'if it is based on
specific and articulable facts which, taken together with
rational inferences from those facts, give rise to a reasonable
suspicion of criminal activity.'" State v. Williams, 192 N.J.
1, 9 (2007) (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)).
A suspicion of criminal activity will be found to be reasonable
only if it is based on "some objective manifestation that the
person [detained] is, or is about to be engaged in criminal
activity." Pineiro, supra, 181 N.J. at 22 (quoting United
States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66
L. Ed. 2d 621, 629 (1981)). In making this determination, a
court must consider "[t]he totality of the circumstances."
Ibid.
It is firmly established in this State that "flight alone
does not create reasonable suspicion for a stop[.]" State v.
Dangerfield, 171 N.J. 446, 457 (2002); see Pineiro, supra, 181
N.J. at 26; Tucker, supra, 136 N.J. at 168-70. However, flight
7 A-4530-07T4
"in combination with other circumstances . . . may support [the]
reasonable and articulable suspicion" required to justify a
stop. Pineiro, supra, 181 N.J. at 26; see State v. Citarella,
154 N.J. 272, 280-81 (1998); State v. Ruiz, 286 N.J. Super. 155,
163 (App. Div. 1995).
Applying these principles, the trial court correctly
concluded that Officer Delaprida and his partner did not have a
reasonable suspicion that defendant was engaged or about to
engage in criminal activity. These police officers had been
dispatched to the housing complex based on a report of a
possible retaliatory shooting in the area. The State did not
present any evidence regarding the source of the information
upon which the report was based. Consequently, the record does
not indicate whether the information came from a police officer,
a confidential informant, or merely a rumor in the neighborhood.
The report also did not include any specific information
regarding where in the housing complex or when the shooting
might occur, or who the possible perpetrator or perpetrators
might be. In addition, the officers admittedly did not have any
prior contact with defendant and thus had no reason to believe
he might be involved in the possible retaliatory shooting or
other criminal activity.
8 A-4530-07T4
In these circumstances, the police had no reason to focus
upon defendant as a possible perpetrator of the reported
possible retaliatory shooting. Defendant did not, for example,
match a description of a suspect, because the report did not
include such a description, and there is nothing intrinsically
suspicious about a person riding a bicycle in a housing complex
courtyard at 8:30 p.m. Thus, defendant's conduct when the
police first arrived at the scene was no more suspicious than
that of the numerous other persons congregated in the courtyard.
Moreover, defendant's conduct after he saw the officers
enter the courtyard did not provide an objectively reasonable
basis for suspecting that he had engaged in or was about to
engage in criminal activity. Defendant simply started quickly
pedaling away from the officers and put his hand in his pocket.
We question whether this conduct should even be considered
flight because the officers did not initially indicate to
defendant that he should stop. Defendant could have believed
that he should simply get out of the officers' way. In any
event, even if defendant's conduct in pedaling away from the
officers could be viewed as flight once they ordered him to
stop, as previously stated, "flight alone does not create [the]
reasonable suspicion [required] for a stop[.]" Dangerfield,
supra, 171 N.J. at 457.
9 A-4530-07T4
The fact that defendant also put his hand in his pocket did
not provide any additional foundation for an objectively
reasonable suspicion that defendant had engaged or was about to
engage in criminal activity. Putting a hand in a pocket is
fairly common human conduct that does not generally involve the
commission of a crime. Although Officer Delaprida testified
that he had a "concern maybe [defendant] was trying to hide a
weapon of some sort" in his pocket, he did not articulate any
basis for this alleged concern, and since defendant was pedaling
his bicycle in the opposite direction from the officers, the
officers could not have had any reasonable concern for their own
safety.
This case is similar to State v. L.F., 316 N.J. Super. 174
(App. Div. 1998), in which the State argued that defendant's act
of walking away when the police approached and also putting his
hand in his pocket created the reasonable suspicion of criminal
activity required for a Terry stop. In rejecting this argument,
we observed that "the mere act of putting something from one's
hand into one's own pocket while departing alone signifies
nothing additional by way of reasonable suspicion." Id. at 179.
This observation is equally applicable to the present case.
The State argues that the dispatch of police officers to
the housing complex to deter the commission of a retaliatory
10 A-4530-07T4
shooting constituted an exercise of the police department's
community caretaking responsibilities and that the prerequisites
for an investigatory stop should be applied less strictly in
that circumstance. "The 'community caretaker doctrine' . . .
applies when the 'police are engaged in functions, [which are]
totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a
[criminal] statute.'" State v. Diloreto, 180 N.J. 264, 275
(2004) (quoting State v. Cassidy, 179 N.J. 150, 161 n.4 (2004)).
Examples of police community caretaking activities include
"search[ing] for missing persons, . . . mediat[ing] disputes,
and . . . aid[ing] the ill or injured[.]" Id. at 281 (quoting
Debra Livingston, Police, Police Community Caretaking, and the
Fourth Amendment, 1998 U. Chi. Legal F. 261, 302 (1998)); see
also State v. Bogan, 200 N.J. 61, 73-81 (2009).
We do not believe that the dispatch of police officers to
an area to deter the commission of a crime constitutes an
exercise of the police's community caretaking responsibilities.
Indeed, the deterrence of criminal conduct is a significant
component of much police work, including routine foot and car
patrols. Thus, such police activity is not "totally divorced"
from the detection, investigation and acquisition of evidence
relating to criminal conduct. Diloreto, supra, 180 N.J. at 275.
11 A-4530-07T4
Therefore, the expansion of the community caretaking doctrine to
apply in circumstances where the police are undertaking to deter
crime would significantly dilute the protections against
unreasonable searches and seizures provided by the United States
and New Jersey Constitutions.
For all these reasons, the trial court correctly concluded
that Officer Delaprida and his partner did not have the
reasonable suspicion of criminal activity required to stop
defendant.
II.
We now consider the trial court's ruling that even though
the initial stop of defendant was unconstitutional, defendant's
failure to comply with Officer Delaprida's command to stop
constituted obstruction, which provided the probable cause
required to justify defendant's arrest and justified admission
of the evidence of the cocaine defendant discarded when the
police apprehended him. This requires a review of the Supreme
Court's recent decisions in Crawley, supra, 187 N.J. 440, and
Williams, supra, 192 N.J. 1. In Crawley, the Court held that a
person who flees from an investigatory stop may be convicted of
obstruction under N.J.S.A. 2C:29-1 even though the stop is later
found to have been unconstitutional if the police officer making
12 A-4530-07T4
the stop was "acting in objective good faith, under color of law
in the execution of his duties." 187 N.J. at 460-61. In
Williams, the Court held that evidence the police obtained in
apprehending a person who has obstructed an unconstitutional
investigatory stop may be admissible if the evidence is
"sufficiently attenuated from the taint" of the unconstitutional
stop. 192 N.J. at 15.
Defendant argues that his failure to immediately stop his
bicycle in response to Officer Delaprida's command could not be
found to constitute obstruction within the intent of N.J.S.A.
2C:29-1(a) as interpreted in Crawley. We have no need to
address this argument because we conclude that even if
defendant's failure to obey Officer Delaprida's command to stop
would have provided an adequate basis to arrest him for
obstruction, the evidence obtained when Officer Delaprida and
his partner grabbed defendant was not "sufficiently attenuated"
from the taint of the unconstitutional stop to justify its
admission into evidence.
The Court in Williams held that the determination of
whether the police "have obtained the evidence by means that are
sufficiently independent to dissipate the taint of their illegal
conduct" requires consideration of three factors: "(1) the
temporal proximity between the illegal conduct and the
13 A-4530-07T4
challenged evidence; (2) the presence of intervening
circumstances; and (3) the flagrancy and purpose of the police
misconduct." 192 N.J. at 15 (quoting State v. Johnson, 118 N.J.
639, 653 (1990)).
In Williams, the defendant responded to a police command
that he place his hands on his head to enable the officers to
pat him down by pushing one of the officers and fleeing from the
scene. Id. at 5. When the police caught the defendant, he was
found with a handgun in his possession. Ibid. The Court
concluded that the most significant factor in determining the
admissibility of the handgun was "the presence of intervening
circumstances," id. at 16, specifically defendant's pushing of
one of the officers involved in the stop and fleeing from the
scene, thus requiring the officers to engage in a police
pursuit. Id. at 18. Based primarily on this factor, the Court
concluded that the seizure of a handgun from the defendant
following his obstruction of an unconstitutional investigatory
stop was sufficiently attenuated from the stop to support
admission of the evidence. Id. at 15-18.
The State argues that any flight or other conduct by a
person subject to an unconstitutional stop that would provide a
basis to arrest for obstruction also automatically requires
denial of a motion to suppress any evidence obtained as a result
14 A-4530-07T4
of that person's apprehension, unless there is a showing of bad
faith on the part of the police. However, as pointed out in the
leading treatise in the field of search and seizure law, the
question whether a person may be prosecuted for a new crime
committed in response to an unconstitutional stop or other
police misconduct is a different question than "whether an
arrest for the new crime should be deemed so substantially
'purified' by that new crime as to provide a lawful basis for
admitting evidence of some other offense . . . found in a search
incident to that arrest." 6 Wayne R. LaFave, Search & Seizure:
A Treatise on the Fourth Amendment § 11.4(j), at 66 (4th ed.
Supp. 2009).
Consistent with this view, our Supreme Court in Williams
did not say that any conduct that could be found to constitute
obstruction automatically constitutes "an intervening act . . .
that completely purge[s] the taint from the unconstitutional
investigatory stop." 192 N.J. at 18. Instead, the Court
indicated that the determination "whether evidence is
sufficiently attenuated from the taint of a constitutional
violation" must be made on a case-by-case basis in light of the
three-factor test set forth in Johnson, supra, 118 N.J. 639, and
reaffirmed in Williams, 192 N.J. at 15.
15 A-4530-07T4
In concluding that the recovery of the handgun at the end
of the police pursuit in Williams was sufficiently attenuated
from the taint of the unconstitutional stop to justify the
admission of that evidence, the Court pointed to State v.
Seymour, 289 N.J. Super. 80 (App. Div. 1996) and State v.
Casimono, 250 N.J. Super. 173 (App. Div. 1991), certif. denied,
127 N.J. 558, cert. denied, 504 U.S. 924, 112 S. Ct. 1978, 118
L. Ed. 2d 577 (1992), as other examples of cases in which the
taint of unlawful police conduct had sufficiently dissipated as
a result of intervening criminal acts to justify admission of
evidence recovered after the defendant's apprehension. Id. at
16. Therefore, it is illuminating to consider the factual
circumstances that this court found to establish a sufficient
attenuation between an unconstitutional stop and subsequent
seizure of evidence to justify admission of that evidence in
those cases.
In Seymour, the defendant disobeyed a police signal to stop
his car, which resulted in a mile and a quarter police pursuit
during which defendant increased his speed from forty to fifty
miles per hour and swerved onto the shoulder of the road several
times. 289 N.J. Super. at 83-85. In the course of this police
pursuit, the defendant discarded cocaine out the window of his
car. Id. at 83. Although the court assumed that the initial
16 A-4530-07T4
police signal to defendant to stop his car was unlawful, id. at
84, it nevertheless concluded that defendant's failure to comply
with that command constituted eluding, in violation of N.J.S.A.
2C:29-2(b), id. at 85, and affirmed the denial of the
defendant's motion to suppress evidence of the cocaine discarded
during the course of the police pursuit. Id. at 86-89. In
reaching this conclusion, the court observed: "Fleeing from the
police in a motor vehicle with the police in vehicular pursuit
could endanger defendant, the officer, other motorist, or
pedestrians." Id. at 87.
In Casimono, the police directed a car to pull over to the
shoulder of the road because the driver had made several lane
changes without signaling. 250 N.J. Super. at 177. As the car
pulled over, the police observed the defendant, who was a
passenger, make a "furtive" movement. Ibid. Based on this
observation, the police subjected both the driver and the
defendant to pat down searches. Id. at 178. The driver
resisted the search, first refusing to take his hand out of his
pocket and then throwing something over the guardrail located
along the shoulder of the roadway, which was subsequently
determined to be a dollar bill containing cocaine residue.
Ibid. At this point, defendant returned to the car where he
retrieved a paper bag, which was subsequently determined to
17 A-4530-07T4
contain a substantial amount of cocaine, and also threw it over
the guardrail. Ibid. The defendant and the driver then had to
be physically subdued. Ibid.
We concluded that even though the stop of the car in which
defendant had been riding was lawful, the pat down searches of
the driver and the defendant had been unlawful. Id. at 178-82.
Applying the three-factor test adopted in Johnson and later
reaffirmed in Williams, we held that evidence of the cocaine in
the dollar bill should have been suppressed because the driver
"threw [the] dollar bill containing cocaine residue over the
guardrail during and in direct response to the illegal pat down
search[.]" Id. at 186. On the other hand, we held that the
trial court had properly denied the motion to suppress the
cocaine contained in the paper bag because the unlawful pat down
search of defendant had been completed before he voluntarily
returned to the car, in violation of the police officer's
directions, and retrieved the paper bag that he threw over the
guardrail. Ibid. We noted that the only unlawful police
conduct was the pat down searches of the defendant and the
driver, that the bag of cocaine was not located on their persons
but rather in the car, and that defendant had gained access to
the bag only by disobeying a lawful police order to remain
outside the car. Id. at 186-87. Under these circumstances, we
18 A-4530-07T4
concluded that "there was a significant break in the chain of
causation between the illegal searches and the discovery of the
cocaine." Id. at 187.
Under the three-factor test for determining significant
attenuation between unlawful police conduct and seizure of
evidence reaffirmed in Williams, we perceive no basis for
concluding that the unconstitutional stop of defendant
constituted "flagran[t] . . . police misconduct." Williams,
supra, 192 N.J. at 15 (quoting Johnson, supra, 118 N.J. at 653).
However, the other Williams factors militate against the
conclusion that there was a significant attenuation between the
stop and the seizure of the cocaine discarded by defendant.
Only four or five seconds elapsed between when Officer Delaprida
directed defendant to stop his bicycle and defendant discarded
the cocaine. Consequently, there was a very close "temporal
proximity between the illegal conduct and the [recovery of] the
challenged evidence[.]" Ibid. (quoting Johnson, supra, 118 N.J.
at 653).
Most importantly, there were no significant "intervening
circumstances" between the unlawful police command to defendant
to stop his bicycle and defendant's discard of the box that
resulted in the seizure of cocaine. Ibid. Defendant did not
push a police officer, as in Williams, flee in a car resulting
19 A-4530-07T4
in a mile and a quarter police pursuit, as in Seymour, or seek
to avoid apprehension by returning to a lawfully stopped car
after the police had removed him from the car, as in Casimono.
In those cases the defendant's intervening criminal acts not
only constituted a break in the chain of causation between the
unlawful police conduct and seizure of evidence but also posed a
risk of physical injury to police officers and, at least in
Seymour, members of the public. In contrast, defendant did not
force the officers to engage in a lengthy and dangerous pursuit
to apprehend him or engage in any act of physical aggression
against Officer Delaprida and his partner. In fact, the
officers physically accosted defendant by grabbing him on his
bicycle. Therefore, there is no basis for concluding that the
police seized the cocaine discarded by defendant "by means that
[were] sufficiently independent to dissipate the taint of their
[prior] illegal conduct." Williams, supra, 192 N.J. at 15
(quoting Johnson, supra, 118 N.J. at 653).
"The purpose of the exclusionary rule is to deter police
misconduct and to preserve the integrity of the courts."
Johnson, supra, 118 N.J. at 651. The attenuation exception
applied in Williams, Seymour and Casimono was established in
recognition of the fact that the seizure of evidence following
police misconduct is in some circumstances so "far removed from
20 A-4530-07T4
the constitutional breach" that suppression "is a cost [that is]
not justified" by the purposes of the exclusionary rule. State
v. Badessa, 185 N.J. 303, 311 (2005). However, it is equally
true that an overly expansive application of the attenuation
exception can undermine the salutary objectives of the
exclusionary rule. In New Jersey, the three-factor test
reaffirmed in Williams delineates the circumstances in which the
attenuation exception may be properly applied. Under those
factors, the State failed to establish a "significant
attenuation" between the unconstitutional stop of defendant and
the seizure of the drugs he discarded following that stop.
Accordingly, the order denying defendant's motion to
suppress is reversed and the judgment of conviction is vacated.
