On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-09-2247.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 3, 2011 -- Before Judges Wefing, Baxter and Koblitz.
Following a negotiated plea of guilty, defendant Don C. Shaw appeals from his September 3, 2009 conviction on charges of second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. We reverse the denial of defendant's motion to suppress, concluding that defendant's arrest on an outstanding parole warrant did not constitute an independent, intervening circumstance that dissipated any taint from the initial unlawful stop. In light of that disposition, we need not address defendant's contention that the judge should have merged his school zone conviction with the second-degree distribution conviction.
At the hearing conducted on defendant's motion to suppress, the State presented testimony establishing that on the evening of June 11, 2008, two teams of law enforcement officers in Atlantic City were participating in Operation Falcon. Operation Falcon was a nationwide initiative conducted by the United States Marshals Service in conjunction with federal, state and local law enforcement in a concerted effort to execute outstanding arrest warrants and apprehend fugitives. On the night in question, the first team, consisting of Detective Steve Brown of the New Jersey State Police and several other officers, approached an apartment building at 507 Tennessee Avenue in search of an individual who was the subject of an outstanding arrest warrant. The officers knew his name, but did not have his picture or any description, other than that he was a black male. The apartment complex contained multiple units with a common entrance and exit. The officers were armed, and were attired in plain clothes with police markings.
The other Operation Falcon team was led by an Atlantic County Sheriff's Officer, Officer Herbert, who had been deputized as a United States Marshal. Herbert was accompanied by Parole Officer Dan D'Amico and Officer Steve Palamaro of the Atlantic City Police Department. The two teams were in constant radio communication. While Detective Brown's team was en route to 507 North Tennessee Avenue, they contacted Herbert's team by radio to ask them to proceed to that location to provide assistance.
Before the second team arrived, Detective Brown approached the front of the apartment building and saw two men, later identified as defendant and Niam Gardner, exit together from the common doorway. As soon as defendant and Gardner saw police, the two men "separated and went in two different direction[s]." Brown approached defendant and asked him for his name, but defendant mumbled something that Brown was unable to understand. Brown asked defendant for his name a few more times, but defendant remained mute. Brown told defendant he was not freeto leave. Brown later testified that he had decided to detain defendant until the other team arrived.
After what Brown described as "a couple of minutes later," Officers Herbert, D'Amico and Palamaro arrived at the scene. Palamaro immediately recognized defendant and Gardner, announcing "that's Don Shaw." Parole officer D'Amico immediately told Officer Palamaro, "he's wanted by us [Division of Parole]."
Detective Brown then arrested defendant on the outstanding parole warrant, handcuffed him, and conducted a search of defendant's person incident to the arrest. The search revealed two "bricks" of heroin, packaged in 649 individually-wrapped baggies that had been placed in a plastic grocery store bag. Another trooper on the scene telephoned dispatch and learned that, in addition to the active parole warrant for defendant's arrest, there were two additional outstanding arrest warrants that had been issued by the Galloway Township Municipal Court. Brown later learned that the fugitive for whom he and the others were searching was someone other than defendant.
Defendant filed a motion to suppress, arguing that the initial field inquiry, which consisted of merely asking defendant his name, had escalated into an investigatory detention without the requisite reasonable and articulable suspicion. In a written opinion issued on April 29, 2009, the judge granted defendant's motion to suppress, reasoning that because the police had not observed defendant engage in any conduct that would have created an objective, articulable suspicion that defendant was involved in criminal activity, the stop was unlawful. The judge concluded that the discovery of the parole warrant came only after defendant "had been unconstitutionally detained" and thus, the subsequent arrest, and search of defendant's person, were invalid.
The State moved for reconsideration, presenting an argument it had not previously advanced. In particular, at the May 26, 2009 hearing on the State's motion, the State argued that regardless of the lawfulness of the initial stop, the pre-existing warrant for defendant's arrest constituted an intervening circumstance and independent basis for taking defendant into custody and searching his person, thus dissipating any taint flowing from the police officers' allegedly illegal initial detention of defendant. After applying the attenuation doctrine articulated by the United States Supreme Court in Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 2416 (1975), the judge evaluated the following three factors: the time that had elapsed between the illegal stop and the discovery of the evidence; the presence of any intervening circumstances; and the purpose and flagrancy of the police misconduct.
Applying the Brown factors, the judge found that: five to seven minutes had elapsed from when the police approached defendant and ordered him to stop, until the time the police learned defendant was wanted on a parole warrant; the discovery of the outstanding warrant or warrants constituted an intervening circumstance that dissipated any possible taint of the initial stop; and there had been no flagrant police misconduct or flagrant disregard of defendant's constitutional rights. The judge therefore "reversed" his earlier grant of defendant's motion to suppress, and concluded that the discovery of the heroin was the result of a lawful search incident to defendant's arrest on the outstanding parole warrant.
The judge also reasoned that as a parolee, defendant had a diminished expectation of privacy in light of the strong societal interest in apprehending those who abscond from parole. The judge held that such interests outweighed any limited expectation of privacy that defendant may have had, especially in a circumstance such as ...