On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 92-4-572.
Before Judges Stern, A. A. Rodríguez and Fall.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following denial of their motions to suppress, defendants entered negotiated pleas of guilty to possession of more than five pounds of marijuana with intent to distribute in violation of N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1), a second degree crime, in exchange for a recommendation that they be sentenced as third degree offenders to a three year custodial sentence. On June 25, 1998, prior to publication of the Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling, they were sentenced in accordance with the recommendation.
While their direct appeals were pending, defendant Chapman, subsequently joined by defendant Velez, moved to remand the case for further proceedings based on "newly discovered evidence of racial profiling." We denied the motion pending determination of the direct appeal. In the opinion on the direct appeal, we found no Fourth Amendment violation and that the CDS was found as a result of a valid consent to search. However, we permitted defendants to address the "profiling" issue to this panel. State v. Chapman, 332 N.J. Super. 452, 457 n.2, 471 n.5. Defendants now claim entitlement to pursue the issue and to discovery on the subject.*fn1
The critical issue before us is whether defendants can raise the profiling issue on direct appeal after the denial of their motion to suppress and a subsequent guilty plea. The State contends that they may not because defendants' guilty pleas constituted a waiver of the issue. The State further contends that, because R. 3:5-7 concerns motions to suppress based on violations of the Fourth Amendment, a "profiling" claim raised therein would not be subject to preservation for appeal under R. 3:5-7(d) as claims of "profiling" or "selective enforcement" arise under the due process and equal protection clauses of the Fourteenth Amendment. See State v. Ballard, 331 N.J. Super. 529, 540-41 (App. Div. 2000).
While we agree with the State that R. 3:5-7 was adopted to address motions to suppress physical evidence obtained in violation of the Fourth Amendment, see State v. Robinson, 224 N.J. Super. 495, 498-504 (App. Div. 1988), "profiling" claims also challenge stops, searches and seizures on constitutional grounds and have been raised incident to motions to suppress evidence obtained in violation of an allegedly unconstitutional stop, search or seizure. Thus, even though "profiling" issues have their "roots in the equal protection and due process clauses [and] the claim of selective prosecution is somewhat foreign to Fourth Amendment interests and analysis," State v. Kennedy, 247 N.J. Super. 21, 29-30 (App. Div. 1991), they have also been developed in New Jersey incident to motions to suppress under R. 3:5-7. Indeed, in State v. Smith, 306 N.J. Super. 370 (App. Div. 1997), this court considered both the denial of a request for discovery in support of a selective enforcement claim and the denial of a motion to suppress in an appeal following the entry of guilty pleas, and there was no suggestion advanced that defendants' guilty pleas constituted a waiver of the "profiling" claim.
R. 3:5-7 is also the vehicle for moving to suppress evidence unconstitutionally obtained in violation of the New Jersey Constitution, N.J. Const. art. I, ¶ 7,*fn2 and even if no Fourth Amendment issue is technically involved, a "profiling" issue involves a claim of an unlawful search and seizure in violation of the State Constitution cognizable under R. 3:5-7. See State v. Carty, 332 N.J. Super. 200, 206-07 (App. Div.), certif. granted, __ N.J. __ (2000), holding that "articulable suspicion is a necessary prerequisite under the New Jersey Constitution to requesting a consent to search after a routine stop for a traffic violation," and relying, in part, on the Interim Report in terms of the need and justification for the requirement. Thus, at least where the "profiling" claim is asserted as part of the motion to suppress, it is preserved for consideration on appeal by virtue of R. 3:5-7(d). We conclude that the "profiling" issue is sufficiently raised in this case and that a remand is therefore in order for the Designated Judge hearing "racial profiling" claims to set the parameters of discovery. See State v. Ballard, supra.
Generally, when a defendant voluntarily admits his or her guilt and acknowledges he or she has committed the crime, the plea constitutes a "waiver" of all issues not raised or preserved for appeal. See, e.g., State v. Vasquez, 129 N.J. 189, 194 (1992); State v. Szemple 332 N.J. Super. 322, 328-29 (App. Div. 2000); State v. Robinson, supra, 224 N.J. Super. at 498. However, certain rules permit defendants to preserve an issue for appeal without requiring him or her, or the State, to spend time and resources trying the case in order to preserve the issue for appeal. Hence, shortly after the United States Supreme Court decided Lefkowitz v. Newsome, 420 U.S. 283, 95 S. Ct. 886, 43 L. Ed. 2d 196 (1975), our Supreme Court adopted R. 3:5-7(d) which preserves for appeal issues rejected during a motion to suppress. See State v. Robinson, supra, 224 N.J. Super. at 499-501.
The facts developed on the motion to suppress in this case were detailed in our prior opinion, 322 N.J. Super. at 456-60. Here, the factual assertions raised at the motion to suppress include claims that the request for a consent search was discriminately based on the trooper's discovery that the Velez brothers, passengers in the vehicle being driven by Chapman, were Colombians.
The following was developed at the motion to suppress on the cross-examination of Trooper Ocentik by co-defendant Curran's attorney, after establishing that the Velez brothers were from Colombia and that the trooper "had read a few books related to the Colombian drug cartels and had arrested Colombians for transportation or trafficking of narcotics about twenty times":
Q. When you turned to Trooper Hanley and said "Two Colombians," were you thinking at this point ...