On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-01-0123.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Guadagno.
Defendant Alfonso Newbill was charged in a four-count indictment with third-degree possession of heroin, N.J.S.A. 2C:35-10a(1)(count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1)(count two); and, third and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(3)and 2C:29-2a (counts three and four). Following the denial of his motion to suppress and pursuant to a negotiated plea agreement, defendant pled guilty to counts two and three. He was sentenced to a three-year term of imprisonment with a fifteen-month period of parole ineligibility. He now appeals, challenging the denial of his motion to suppress. See R. 3:5-7(d).
The threshold issue in this appeal is whether defendant was unlawfully detained and, if so, whether his unlawful detention should result in the suppression of drugs discarded by him and subsequently seized by the police. We conclude that the defendant's detention was unlawful but the subsequent seizure was sufficiently attenuated from the taint of the unconstitutional stop to justify the admission of the drugs.
At a hearing on defendant's motion to suppress, New Jersey State Police Detective William Barry testified that on September 24, 2009, he was on patrol in an unmarked vehicle in the Centerville section of Camden. Barry was a member of a task force working with Camden police officers. Barry described the Centerville area as having a "high influx of robberies" and indicated that the task force had received intelligence "that there were a lot of armed robberies being committed by black males that are utilizing bicycles as a get away . . . ."
At about 8:30 p.m., Barry spotted two black men, defendant and another, later identified as Ronnie Vann, on bicycles. Defendant "was looking with more than a nervous demeanor as if he were looking for someone or something" while Vann "looked like he couldn't care less about anything that was going on." Barry followed the two for a few blocks, then radioed a description of them to his backup unit with instructions to stop them "just to see where they were going, what they were doing." When the men turned onto Mt. Ephraim Avenue, two members of the task force, Camden Detectives Rivera and Norsha, radioed to Barry that they had the suspects in sight.
Rivera testified that Barry had requested that he and Norsha detain the two subjects "to do a field contact, an inquiry." After spotting defendant and Vann, Rivera and Norsha drove ahead of the men on Mt. Ephraim and parked their car in a driveway off the street. While Rivera and Norsha were both dressed in plain clothes, they had tactical vests that identified them as police officers. When Rivera got out of his car, he stood on the sidewalk, identified himself as a police officer and asked both men to stop. Rivera testified that Vann complied but defendant did not:
At that point I went to stop Mr. Newbill . . . . I asked him to stop at which time he stuck out his arm and pushed me away from him and drove into traffic hitting the back end of the vehicle that was driving down Mt. Ephraim Avenue.
On cross examination, Rivera provided additional detail as to his attempt to stop defendant:
Q: And it's your testimony that you called
Mr. Newbill over to you. Is that right?
Q: That you never tried to grab his shirt? A: Yes, I grabbed his shirt once ...