On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment Nos. 02-05-0710 and 02-05-0711.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2005
Before Judges A.A. Rodríguez, Alley and C.S. Fisher.
In this appeal, we hold that the police lacked a reasonable and articulable suspicion when they attempted to frisk defendant upon an anonymous tip that "a black male wearing a black jacket" was selling drugs in a high crime area. The search following defendant's flight also cannot be legitimized as incidental to defendant's arrest for obstruction because a citizen's non-violent flight from an unreasonable search and seizure cannot be validly criminalized.
Defendant was charged in Indictment No. 02-05-0710 with third-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b), and fourth-degree obstruction, in violation of N.J.S.A. 2C:29-1(a). Indictment No. 02-05-0711 charged defendant with the second-degree offense of being a person prohibited from possessing a weapon, in violation of N.J.S.A. 2C:39-7(b).
After a brief evidentiary hearing, defendant's motion to suppress evidence was denied for reasons set forth in the trial judge's written decision and, after a four-day trial, defendant was convicted of unlawful possession of a weapon, but acquitted of obstruction. Following this verdict, defendant pleaded guilty to being a person prohibited from possessing a weapon in violation of N.J.S.A. 2C:39-7(b).
Defendant was sentenced to a nine-year term of imprisonment with a five-year period of parole ineligibility on the conviction for being a person prohibited from possessing a weapon. The judge also imposed a concurrent four-year term on defendant's conviction for unlawful possession of a weapon. Separate judgments of conviction were entered on June 27, 2003.
Defendant appealed, raising the following arguments for our consideration:
I. THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS.
A. OFFICER McRAE'S ENCOUNTER WITH THE DEFENDANT CONSTITUTED A DE FACTO ARREST AND NOT AN INVESTIGATORY STOP.
B. OFFICER McRAE DID NOT HAVE PROBABLE CAUSE TO MAKE A DE FACTO ARREST OF THE DEFENDANT.
C. SINCE THE DE FACTO ARREST OF THE DEFENDANT WAS ILLEGAL THE SUBSEQUENT SEIZURE OF THE HANDGUN AND ARREST OF THE DEFENDANT SHOULD BE SUPPRESSED AS BEING THE "FRUIT OF THE POISONOUS TREE."
II. THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE TO THE JURY.
A. THE TRIAL COURT'S INSTRUCTIONS TO THE JURY AS TO THE STIPULATION ENTERED BY THE DEFENSE CONSTITUTED PLAIN ERROR BECAUSE THE JURY WAS DIRECTED TO ACCEPT THE STIPULATION.
B. THE TRIAL COURT COMMITTED PLAIN ERROR BY DIRECTING THE JURY TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE."
III. THE NINE (9) YEAR BASE TERM IMPOSED ON THE DEFENDANT'S CONVICTION FOR BEING A PERSON WHO IS PROHIBITED FROM POSSESSING A HANDGUN WAS MANIFESTLY EXCESSIVE AND ILLEGAL.
A. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A SENTENCE IN EXCESS OF THE PRESUMPTIVE SENTENCE FOR A CRIME OF THE SECOND DEGREE.
B. IMPOSITION OF A SENTENCE IN EXCESS OF THE PRESUMPTIVE SEVEN (7) YEAR SENTENCE FOR A SECOND DEGREE CRIME VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS AS ARTICULATED BY THE UNITED STATES SUPREME COURT IN BLAKELY V. WASHINGTON.
Because we agree that the judge mistakenly denied the motion to suppress, we need not reach defendant's arguments regarding the trial and the sentences imposed.
At the pretrial hearing regarding defendant's motion to suppress, Officer Paul McRae testified that, at approximately 2:15 a.m. on March 26, 2002, he and his partner*fn1 were in a marked patrol car in an area of Elizabeth "plagued with drug activity, people carrying weapons, things of that sort," and that they were sent to 1025 Flora Street because a caller had advised of "a black male wearing a black jacket . . . selling drugs in that area." The judge asked Officer McRae for further details about this tip, but the officer had no further detail to provide:
THE COURT: Was that description anything other than -- any age of the black male?
THE WITNESS: Unfortunately, we weren't given anything more specific than that.