On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Shebell, Skillman and D'Annunzio. The opinion of the court was delivered by Skillman, J.A.D.
Defendant was indicted for possession of marijuana with the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11); possession of marijuana, in violation of N.J.S.A. 2C:35-10(a)(3); aggravated assault upon a police officer, in violation of N.J.S.A. 2C:12-1(b)(5)(a), and second degree escape, in violation of N.J.S.A. 2C:29-5. At the beginning of the trial, the court heard defendant's motion to suppress evidence of the alleged marijuana found in his automobile. The court granted defendant's motion, but suppressed the evidence only with respect to the charges of possession of marijuana and possession of marijuana with the intent to distribute, thus allowing the State to present this evidence insofar as it was relevant to the assault and escape charges. The court then granted the State's motion to dismiss the marijuana charges. The trial of the remaining charges proceeded and defendant was found guilty of aggravated assault and resisting arrest, which was submitted to the jury as a lesser included offense of escape. The court sentenced defendant to a five year term of imprisonment for aggravated assault upon a police officer and a concurrent eighteen month term for resisting arrest. Defendant appeals.
Defendant's first argument is that the trial court violated his Fourth Amendment rights by allowing the State to introduce evidence of the alleged marijuana found pursuant to an unlawful search of his car.
The State presented evidence at the suppression hearing that a police officer observed defendant driving an automobile on
Route 17 around 1:30 a.m. on July 4, 1988. Defendant's car had no license plates, so the officer signaled him to stop. Defendant got out of his car and walked toward the police car with his motor vehicle license in his hand. At about the same time, the officer noticed that defendant's car had a temporary registration tag affixed to the rear window. Nevertheless, the officer directed defendant to return to his car and followed him. When the officer looked into defendant's car, he saw a type of rolling paper commonly used to wrap marijuana cigarettes and a plastic bag. The officer ordered defendant and the other two occupants to get out of the car and patted them down. After this search failed to reveal anything, the officer removed the plastic bag from the interior of the vehicle and discovered a greenish brown vegetation, which he believed to be marijuana.
According to the officer, he then told defendant and the other occupants that they were under arrest. However, codefendant Harris bolted from the group and began running down the highway. The officer directed Harris to stop or he would shoot. While the officer's attention was directed towards the fleeing Harris, defendant got back into his car and began to drive away. Consequently, the officer jumped into the passenger side of the car and tried to turn off the ignition. But defendant prevented the officer from stopping the car by elbowing his chest and hitting his arms. In response, the officer pulled out his gun and hit defendant over the head with it. At this point, with the car travelling approximately 40 miles per hour, defendant pushed the officer out of the car onto the middle lane of the highway. As a result, the officer suffered a broken foot and other injuries. Defendant continued his flight from the scene but surrendered to the police three days later. Harris also was apprehended but the third occupant escaped. The police never recovered the rolling paper or greenish brown vegetation which the officer observed in defendant's car.
The trial court concluded on the basis of this evidence that the alleged marijuana in defendant's car was discovered as a result of an unlawful search. Specifically, the court concluded
that although the officer had the right to stop defendant's car because it had no license plates, his reasonable suspicion was dispelled when he observed the temporary license plate and at that point any further detention of defendant and his passengers became impermissible. Accordingly, the court suppressed the officer's statements regarding what he observed after the illegal detention and search. However, the court limited the effect of its suppression order to the counts of the indictment charging defendant with possession of marijuana and possession with the intent to distribute, thus permitting the officer to testify in connection with the escape and assault charges that he found what he believed to be marijuana in defendant's car. The court's rationale for this limitation upon the suppression order was that even if the detention of defendant and search of his car was illegal, defendant had no right to escape or assault the officer, and that the State could present the officer's account of what he saw and did before defendant's alleged escape and assault in order to prove these charges. We agree and therefore affirm the court's order allowing the State to present the suppressed evidence for this limited purpose.
In State v. Casimono, 250 N.J. Super. 173, 182-85, 593 A.2d 827 (App.Div.1991), certif. denied, 127 N.J. 558, 606 A.2d 370 (1992), we held that an unconstitutional detention or search ordinarily will not bar a conviction for an assault, escape or other offense committed in response to the unlawful police action. Our essential rationale was that extending the fruits of the poisonous tree doctrine to immunize a defendant from prosecution for new crimes committed after police misconduct would give a criminal suspect "an intolerable carte blanche to commit further criminal acts," which would be "too far reaching and too high a price for society to pay in order to deter police misconduct." Id. at 184, 593 A.2d 827 (quoting United States v. Bailey, 691 F. 2d 1009, 1017 (11th Cir.1982), cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983)).
Defendant concedes that under our decision in Casimono he was subject to prosecution for aggravated assault and escape, even though these alleged offenses arose out of an unconstitutional detention and search. Nevertheless, he argues that the trial court erred in allowing the State to introduce evidence of the events leading up to the commission of these offenses, in particular evidence of the discovery of marijuana in his car, because that evidence was obtained in violation of the Fourth Amendment.
The exclusionary rule generally prohibits the use in criminal proceedings of evidence obtained in violation of federal or state constitutional rights. James v. Illinois, 493 U.S. 307, 311, 110 S. Ct. 648, 651, 107 L. Ed. 2d 676, 682-83 (1990); State v. Johnson, 118 N.J. 639, 651, 573 A.2d 909 (1990). However, "the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 620, 38 L. Ed. 2d 561, 571 (1974). Consequently, if application of the exclusionary rule in a particular situation "does not result in appreciable deterrence, . . . its use . . . is unwarranted." United States v. Janis, 428 U.S. 433, 454, 96 S. Ct. 3021, 3032, 49 L. Ed. 2d 1046, 1060 (1976). Thus, exceptions to the exclusionary rule have been recognized "where the introduction of reliable and probative evidence would significantly further the truthseeking function of a criminal trial and the likelihood that admissibility of such evidence would encourage police misconduct is but a 'speculative possibility.'" James v. Illinois, supra, 493 U.S. at 311, 110 S. Ct. at 651, 107 L. Ed. 2d at 683. For example, illegally seized evidence may be used in grand jury proceedings, United States v. Calandra, supra, 414 U.S. at 350-52, 94 S. Ct. at 621-22, 38 L. Ed. 2d at 573; or to impeach a defendant, United States v. Havens, 446 U.S. 620, 627, 100 S. Ct. 1912, 1916-17, 64 L. Ed. 2d 559, 566 (1980); see also
United States v. Janis, supra; Delguidice v. New Jersey Racing Comm'n, 100 N.J. 79, ...