On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-1044.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Gilroy and Simonelli.
The primary issue presented by this appeal is whether flight from an unconstitutional investigatory stop that could justify an arrest for obstruction automatically justifies the admission of any evidence revealed during the course of that flight. We conclude that such evidence is admissible only if there is a significant attenuation between the unconstitutional stop and the seizure of evidence and that commission of the offense of obstruction is insufficient by itself to establish significant attenuation.
On August 25, 2006, Officer Delaprida of the Elizabeth Police Department was dispatched together with thirteen to fifteen other officers to the courtyard of a large housing complex located in a high-crime area. Delaprida and the other officers were sent to the housing complex to deter, through a "police presence," a possible retaliatory shooting for a homicide committed several days earlier.
Officer Delaprida had no information concerning the basis for the report of a possible retaliatory shooting. Delaprida also had no description or other information concerning the person or persons who might be planning the shooting.
When Officer Delaprida arrived at the housing complex with his partner around 8:30 p.m., they observed a large number of people in the courtyard, including children and older people, "just hanging out." One of the persons the officers observed was defendant, who was riding a bicycle diagonally in front of them.
When defendant recognized the officers, who were dressed in plain clothes, as police, he quickly started pedaling away and also put his right hand in his pants pocket. The officers ordered defendant to stop, but he kept pedaling "at a steady pace," and the officers started to run after him. Defendant then saw other officers entering the courtyard from the direction he was headed and slowed down. At this point, Officer Delaprida and his partner caught up with defendant, and grabbed him while still on his bicycle. As the officers grabbed him, defendant pulled his hand out of his pocket and threw a box to the ground. The box was later determined to contain a substantial amount of cocaine. Officer Delaprida estimated that only four or five seconds elapsed between when he ordered defendant to stop and when he grabbed him on his bicycle.
Defendant was indicted for possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1); possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); and possession of cocaine within 500 feet of a public housing facility with the intent to distribute, in violation of N.J.S.A. 2C:35-7.1. Defendant subsequently moved to suppress the evidence against him.
Based on the previously described testimony by Officer Delaprida, the trial court concluded in a written opinion that the report of a possible retaliatory shooting and the observations by Officer Delaprida and his partner of defendant pedaling his bicycle away from them and putting his hand in a pocket did not provide the reasonable suspicion defendant was engaged in criminal activity required for a Terry stop.*fn1
Nevertheless, the court denied defendant's motion to suppress on the ground that defendant's failure to immediately stop his bicycle in response to Officer Delaprida's original command established probable cause to arrest him for obstruction, in violation of N.J.S.A. 2C:29-1(a), even though that command was unconstitutional, and that defendant's apparent violation of the obstruction statute provided sufficient grounds to justify the stop that resulted in him discarding the cocaine hidden in his pocket.
Defendant subsequently entered into a plea bargain under which he pled guilty to the charge of possession of cocaine, and the State dismissed the possession with intent to distribute charges. The trial court sentenced defendant to a four-year ...