On appeal from the Superior Court, Appellate Division, whose opinion is reported at 381 N.J. Super. 429 (2005).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This appeal concerns whether a defendant is entitled to discovery to support claims of racial profiling before a court considers the attenuation exception to the exclusionary rule.
On May 22, 1995, State Trooper Steven Parisi noticed a pickup truck moving in and out of its traffic lane and traveling at 38 miles per hour in a 55 mile per hour zone. Parisi observed the passenger in the truck, later identified as defendant Calvin Lee, begin to move around. Parisi pulled the truck over. Both occupants in the truck were African-American males. Believing that the vehicle might be stolen, Parisi asked the driver, Ricky Lee, to remove the key and hand it to him. As the driver did so, Lee began to reach between the seats. Parisi immediately directed both men to place their hands on the dashboard.
When Parisi radioed for backup, the two occupants attempted to flee the vehicle, but Parisi positioned himself in such a way to prevent the two men from escaping. The driver attempted to move the gear shift into drive, but was unable to do so because the key had been removed. Parisi then advised the occupants that they were under arrest. At that point, the driver opened his door and fled into the nearby woods. Lee also tried to flee after once again reaching for the area between the seats, but Parisi blocked him. Parisi, with his weapon drawn, reached into the truck and tried to grab Lee. A struggle ensued. Lee eventually broke free and ran off in the same direction as the driver. After Parisi pursued Lee for a short distance, he returned to the vehicle and searched it. Parisi found several bags of cocaine and marijuana in the area where Lee had been reaching. Lee and the driver were eventually apprehended.
Lee and the driver, co-defendant Ricky Lee, were charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1); fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3); and third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(11). Lee was also charged with fourth-degree aggravated assault on Parisi, N.J.S.A. 2C:12-1b(5)(a); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a; and second-degree escape, N.J.S.A. 2C:29-5.
Lee was tried and convicted of all charges. Lee filed an appeal, as did his co-defendant. These appeals were consolidated and affirmed by the Appellate Division. This Court denied certification. Lee then filed a petition for post-conviction relief. He sought discovery to support his claim that the vehicle stop was the product of racial profiling. Lee filed a formal notice of motion for discovery with Judge Barisonek, who was designated to hear all motions for discovery relating to racial profiling by the New Jersey State Police. The State moved to dismiss Lee's discovery motion, as it did in several other unrelated, but similar cases. Following a consolidated hearing, Judge Barisonek granted the State's motion to dismiss Lee's request for discovery finding that the criminal conduct committed after the initial stop constituted a sufficient break in the chain of events that profiling discovery would not affect the outcome. After Lee's motion for leave to appeal was denied, a different judge denied his petition for post-conviction relief. Lee appealed. With one judge dissenting, the Appellate Division affirmed, largely on the basis of Judge Barisonek's opinion. Because of the dissent in the Appellate Division, the case came before the Court as an appeal as of right.
HELD: A defendant is entitled to discovery to support racial profiling claims and the attenuation doctrine should be considered only after it is determined that a defendant is a victim of racial profiling.
1. The Fourth Amendment to the United States Constitution and Article I of the New Jersey Constitution protect against unreasonable searches and seizures. Pursuant to the exclusionary rule, the State may not introduce evidence that is obtained from an unlawful search or seizure by the police. Not all evidence derived from an unlawful search is excluded from evidence if the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. Lee argued that the attenuation doctrine should not be considered until after discovery on whether he was a victim of racial profiling. (pp. 10-11)
2. As a result of numerous cases challenging motor vehicle stops based on racial profiling, the Court entered an Administrative Determination and Order on January 31, 2000. The Order stayed all motions for discovery relating to racial profiling until the Appellate Division decided appeals in State v. Ballard, State v. Maiolino and State v. Dickerson. In deciding the three consolidated appeals, the Appellate Division held that defendants were entitled to discovery in order to pursue their claims of selective enforcement. (pp. 11-14)
3. Two subsequent Appellate Division decisions, State v. Ball, 381 N.J. Super. 545 (App. Div. 2005) and State v. Gonzalez, 382 N.J. Super. 27 (App. Div. 2005) are consistent with Ballard, but contrary to the majority of the Appellate Division panel in the present matter. In Ball and Gonzalez, the Appellate Division held that the attenuation issue should be considered only after it is determined that the defendants were victims of racial profiling. (pp. 14 - 16)
4. The Court concludes that Lee is entitled to discovery in an effort to support his racial profiling claim, and the rules authorize post-conviction discovery relevant to racial profiling. The key is that, pursuant to R. 3:13-3(c), the discovery must be relevant. (pp. 16-17)
5. The State's attenuation argument is not yet ripe. Unless Lee develops through discovery that the motor vehicle stop resulted from inappropriate conduct of the police, there will be no need to address the attenuation argument. If Lee is successful in proving that racial profiling was implicated, then the State may offer its attenuation argument. (pp. 17-18)
The judgment of the Appellate Division is REVERSED and REMANDED for further proceedings consistent with this opinion.
CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in JUSTICE WALLACE's opinion.
The opinion of the court was delivered by: Justice Wallace, Jr.
In this case, defendant appeals from the denial of his petition for post-conviction relief and, specifically, from the denial of his motion for discovery to support his claim that his vehicle stop emanated from racial profiling. In denying that motion, the court found that even assuming defendant was correct in his claim, the drug evidence obtained after the stop would not be excluded because defendant's assault on the officer purged the taint of the initial stop. Following the denial of his petition, defendant appealed. With one judge dissenting, the ...