On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, 05-09-0945.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Alley and Fuentes.
Following upon the trial court's dismissal of his petition for post-conviction relief, defendant appeals from the denial of his motion for discovery that led to the dismissal. We affirm. In 1996, defendant was convicted of first degree possession of CDS (cocaine) with intent to distribute; two related third- degree crimes involving possession of drugs; third-degree escape; and three fourth-degree crimes: possession of drugs, aggravated assault, and resisting arrest. The trial court imposed an extended-term sentence of fifty-five years' imprisonment with eighteen-and-one-half years of parole ineligibility for the first-degree crime and a consecutive one- and-one-half-year term for fourth-degree aggravated assault, along with concurrent sentences for the other convictions. We affirmed the convictions and sentences in an unpublished opinion, and the Supreme Court denied certification, 163 N.J. 396 (2000).
Defendant filed a petition for post-conviction relief in September 2000. In 2001, first by letter and then by formal motion, defendant sought discovery to support his claim that he had been the victim of racial profiling in the stop of a motor vehicle that had led to the discovery of the drugs on which the CDS charges were based and to the events that generated the other charges. See State v. Clark, 345 N.J. Super. 349, 355-59 (App. Div. 2001). The discovery motion was referred from the Law Division in Passaic County to Judge Barisonek in Union County. Judge Barisonek had been designated by the Supreme Court in a January 31, 2000 administrative order as the "sole judge" statewide to hear "all motions for discovery relating to racial profiling by the New Jersey State Police."
Asserting the attenuation exception to the exclusionary rule defendant sought to rely on, the State filed a counter- motion to remove the case from selective discovery proceedings. It was the State's position that defendant's criminal conduct committed following the stop of the vehicle constituted a break in the chain of events between the putatively unlawful stop and the discovery of contraband. The State contended that the evidence seized from the vehicle was, therefore, admissible even if the stop itself had been racially motivated, and that defendant should not be permitted discovery to make out his racial profiling claim.
Judge Barisonek heard argument on the motions on May 3, 2002, and decided them in an oral opinion that day. He ruled that defendant was not entitled to discovery by reason of the attenuation exception, and he remanded the matter back to Passaic County for disposition on the merits of the PCR application. We denied defendant's motion for leave to appeal from Judge Barisonek's ruling.
Absent any requests for relief from defendant on other grounds, Judge Marmo, before whom the application for post- conviction relief was pending, denied the petition. With that final disposition, defendant appeals as of right from Judge Barisonek's order denying his motion for discovery, and from the consequent order dismissing the petition for post-conviction relief. On appeal, he raises the following issues bearing exclusively on Judge Barisonek's ruling:
THE TRIAL COURT ERRED IN RULING THAT DEFENDANT IS NOT ENTITLED TO PURSUE A CLAIM OF RACIAL PROFILING.
I. THE TRIAL COURT ERRED IN CONCLUDING THAT THE ATTENUATION EXCEPTION TO THE EXCLUSIONARY RULE APPLIES.
II. CONSIDERING THAT THE DISCOVERY DEFENDANT SEEKS IS RELEVANT TO THE ISSUE OF WHETHER THE ATTENUATION EXCEPTION SHOULD APPLY, THE TRIAL COURT'S RULING WAS PREMATURE.
Before the 1996 trial in the matter, a hearing had been held on defendant's motion to suppress. The trial court's denial of that motion was based upon its findings in the hearing. The ruling denying the motion to suppress was a major focus in the merits appeal. In deciding that appeal, we recounted the facts that had been developed regarding the search. Judge Barisonek, in deciding the instant motions before him recited the same facts. We will not rehearse the details here.
After his detailed recitation of the facts of the matter, Judge Barisonek discussed our holdings in State v. Casimono, 250 N.J. Super. 173 (App. Div. 1991), and the courts' rulings in other cases on state and federal levels. In Casimono, we identified three general factors for determin[ing] whether evidence has been obtained by means that are sufficiently independent to dissipate the taint of illegal police conduct[:] "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct."
[Id. at 183 (citations omitted).]
Defendant's arguments herein, both before Judge Barisonek and on appeal, focus on all three factors.
We went on in Casimono to hold that the defendant and his co-defendant did not have a right to resist the searches [that we had already determined had been illegal for reasons unrelated to racial profiling] or the troopers' subsequent efforts to place them under arrest. And since defendant's physical confrontation with the troopers created a high potential for causing injury to the officers, the need to protect the troopers' safety outweighed whatever marginal deterrent to police misconduct might be provided by immunizing defendant's actions from criminal liability.
. . . [T]he decisive factor supporting admission of the evidence of defendant's resisting arrest and hindering apprehension is the "intervening circumstance" of defendant's voluntary commission, subsequent to the illegal police conduct, of new criminal offenses with a high potential for causing injury to law enforcement officers. This "intervening circumstance" marks "the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost."
The . . . question is whether the illegal pat down searches . . . require the suppression of the cocaine [in a paper bag] which they threw [away] and the reversal of defendant's conviction for possession of cocaine with intent to distribute.
We hold that these actions by defendant were sufficiently independent of the prior illegal pat down searches to warrant the conclusion the discovery of the cocaine in the paper bag did not directly result from the police misconduct. * * * [T]here was a significant break in the chain of causation between the illegal searches and the discovery of the cocaine.
We also conclude that the cocaine in the paper bag was admissible on another alternative basis. [The co-defendant] was lawfully arrested for resisting arrest and hindering apprehension. Consequently, the police could have properly searched the interior compartment of his car incident to the arrest. * * * [T]he cocaine in the paper bag would inevitably have been discovered pursuant to a search incident to [the co-defendant's] lawful arrest after he physically resisted the pat down search and for this reason the evidence was not a fruit of the prior police misconduct.
[Id. at 184-88 (citations omitted).]
Based on the facts of the instant matter, and applying the principle of Casimono, Judge Barisonek concluded that the attenuation exception validated the admission of the drug evidence and that the motion for discovery to assist in making out a claim of racial profiling should be denied.
We recognize, as Judge Barisonek did, that Casimono did not involve issues of racial profiling. Indeed, we stated there that "[t]he stop of the car in which defendant was riding and the police order to defendant to get out of the car were lawful." Id. at 186. We cannot disregard the compelling qualities of the arguments advanced by defendant before Judge Barisonek and reiterated on appeal. Judge Barisonek framed those contentions as follows:
that because of the egregious conduct on the part of the State Police by engaging in acts of racial profiling, that even if there was a subsequent intervening act that occurred, that the constitutional infringements of the defendant's rights as a result of racial profiling is so egregious, the State should be barred from using that particular evidence. Also, it should be barred because of the nexus between the stop, the police misconduct, the subsequent arrest and finding of the evidence that incriminates the defendant.
According the necessary regard to the important public policy premises upon which defendant's instant arguments are based, we also respect the perspective Judge Barisonek placed on those arguments and the value judgments that guided his decision:
The issue is whether or not [the conduct of defendant and his co-defendant] represents a sufficient break in the chain between the discretionary stop made by the police and their intervening acts. . . . [O]ne does not have the authority to resist [such] an illegal act and once an individual defendant takes action against a police officer who is in performance of his duties, whether they be unlawful or illegal, that person subjects himself to a criminal charge of either aggravated assault [or] resisting arrest . . . .
In respect of defendant and his co-defendant in particular, Judge Barisonek went on to state:
Again, even giving the assumption that the initial stop may have been tainted because of profiling, and I am doing that, I want to make that clear on the record, I'm really not too concerned about the fact that the truck did not pull over to the side of the road immediately. When this becomes interesting is when the police then make the eventual stop, approach the vehicles and start taking their actions that were delineated on the record earlier, and the actions of the defendants including that of the driver to attempt to put the gear shift in drive. Obviously they are being detained by the police. They do not have a right to just walk away at that point and leave or run away or drive away. They are stopped by the police.
You do have a nexus I find and a legitimate issue as to whether or not there is a direct correlation to the initial discriminatory act in terms of stopping the vehicle and I accept that. But Parisi now says to the defendants you are under arrest. Again you look at 2C:29-2a, once the police officers announced an intent to arrest. There is not much of a question in this case that the trooper was in full uniform, marked cars, that is all addressed, and that the defendants knew this, these defendants, therefore, must submit. I am picking up from that point on as far as I am concerned.
Parisi announces they are under arrest. Whether or not the arrest is illegal or unlawful is of no consequence. The driver then runs from the truck and Calvin grabs Parisi's gun and pulls him into the vehicle. Then Calvin flees. Parisi goes to the truck to look between the seats for a weapon. Now, you can argue that his going to look for the weapon is correlated to the initial discriminatory stop. The State argues it is not because of the intervening criminal act of the resisting arrest and that they have every right in the world to go to that vehicle because of the concern about there being a weapon present because of Calvin reaching there. Also that if both police officers leave the scene to pursue and they return to the car to get the weapon there is going to be other people at risk if there is a weapon there.
The State argues that the search of the vehicle is not a discretionary post-arrest act on the part of the troopers. [Defense counsel] is arguing to me that there is a correlation under the Casimono case, under the Brown v. Illinois case and under Johnson and that because of temporal proximity to the incident, that it happened quickly and that because of the egregious conduct on the part of the police being engaged in racial profiling that the exclusionary rule should apply. Also that the intervening circumstances, if they are to be believed, when weighed against that exclusionary argument are insignificant and that the police action in stopping the vehicle initially is so flagrant and that the police misconduct was so egregious that in fact this Court should find that there is insufficient merit to the State's argument to exclude the discriminatory stop. He also claims that it all should be treated as one incident and that the defendant is entitled to bring this back before the court on an issue involving racial profiling and be entitled to discovery.
Well, once, as I said, the individuals resist the actions of the police officers when the police announced an intent to arrest, they have no right to resist. There is no question that that is an intervening causal act on the part of the defendant independent of the discriminatory act. You say how is it independent of the discriminatory act? The reason they were resisting is they were stopped. Then you go back to the statute and Seymour and Battle ...