On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-12-2047.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sabatino.
Defendant, Brandon Kingsley Stokes, appeals his conviction of theft from a person, N.J.S.A. 2C:20-3, following a conditional plea agreement. Under that plea agreement, defendant preserved his right to seek review of the Law Division's denial of his motion to suppress evidence the police obtained from him following a warrantless investigatory stop. Because we conclude that the warrantless search was not permissible, we vacate the order denying suppression and defendant's conviction.
We recount the pertinent facts that emerged at the suppression hearing. At about 12:47 a.m. on May 7, 2004, two detectives and a sergeant of the West New York Police Department were on patrol conducting a routine neighborhood check in the vicinity of Washington and 61st Streets. The neighborhood consists of a mix of residential and commercial buildings, including a bar, a drug store and some family businesses. According to the officers' testimony, the neighborhood has had "quality of life" issues, arising from alcohol consumption, street fighting, urinating in public, and excessive noise. The three officers were all in plain clothes and patrolling in an unmarked Crown Victoria police car.
Just a week before, on April 30, five men had been robbed at gunpoint in that same neighborhood. The robbery had taken place at a welding business located at Washington and 61st Streets. The robbery victims had been initially accosted by two young men pointing guns, who were then assisted by six other accomplices. According to the descriptions provided by the victims, all eight of their attackers were black males about twenty to twenty-five years old, one of whom had dreadlocks. Three of the attackers were seen wearing military-style camouflage clothing. The descriptions provided no information about the suspects' heights, weights, physiques, facial hair, or whether they had tattoos.
As the Crown Victoria proceeded down 61st Street near Washington Street, one of the officers, Detective Garciga,*fn1 noticed two black men. They were conversing on the front steps at a two-family house located in the middle of the block. The area was partially illuminated by a traffic light on the street corner. One of the men, who was later identified as defendant, had dreadlocks. After likewise observing the two men, the other detective in the police car, John Viales, commented that the men appeared to match the description of the suspects in the April 30 robbery. Neither defendant nor the second individual with him, Nyreek Wimberly, were in camouflage garb.
There is no indication that defendant and Wimberly were drinking, talking loudly or otherwise engaging in any inappropriate behavior. As Detective Viales acknowledged in his testimony, "there was no basis to assume that they [defendant and Wimberly] were involved in any kind of criminal activity."
Detective Garciga slowly drove the Crown Victoria down 61st Street. As it approached, Wimberly got up and started to walk in a westerly direction on 61st Street. This direction was initially towards the unmarked car, but then he continued away from the car after it pulled up. Garciga stopped and double-parked the car, and all three officers got out. Detective Viales shouted, "police, stop" to Wimberly. Wimberly ignored the command and kept going.
Detective Viales and Sergeant Lomaro caught up with Wimberly. Viales placed his hand on Wimberly's shoulder, which caused him to stop. According to Viales's testimony, Wimberly seemed "nervous" and did not respond when Viales asked him why he had walked away. However, Wimberly did not physically resist the officers or display any violent gestures.
Viales then patted Wimberly down. As Viales testified, he did so "for [his] safety," being aware that guns had been used in the April 30 robbery at that location. The pat-down uncovered a loaded handgun in Wimberly's pocket. Viales shouted out to Garciga that he had found a gun.
Garciga, meanwhile, had approached defendant, who had come off the steps but who had not tried to walk away. According to Garciga, he started to talk to defendant in a manner that was "just normal." Garciga recalled that "[i]t was like an interview, you know, how are you, how's it going, where [are] you from, things of that nature." Defendant told Garciga that he was waiting for a ride.
Garciga then asked defendant "if he had anything on him as far as any weapons or whatever." Defendant responded that he had a pipe. Seeking to clarify that response, Garciga asked if defendant meant "a crack pipe or something of that nature." Defendant replied in the negative. He then began to remove a metal pipe from under his sleeve. As this was occurring, Garciga heard Viales shout that he had just found a gun on Wimberly. That prompted Garciga to grab defendant's wrists. He then placed defendant under arrest. The metal pipe, which was about nineteen inches long, was confiscated.
Following defendant's arrest, he gave statements to police implicating himself, Wimberly, and others in the April 30 robbery. Consequently, defendant challenges not only the legality of the police stop, but also his ensuing confession under the "fruits of the poisonous tree doctrine." Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S.Ct. 407, 416, 9 L.Ed. 2d 441, 454 (1963); see also State v. Johnson, 118 N.J. 639, 653 (1990).
Both Viales and Garciga acknowledged in their testimony that their sole basis for approaching defendant and Wimberly was the fact that the two men appeared to share characteristics with the description of the armed robbers from the week before. In particular, both were black males apparently between the ages of twenty and twenty-five, one of them with dreadlocks. The officers conceded in their testimony that the description was general and that it potentially ...