June 11, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALFONSO NEWBILL A/K/A ALPHONSO NEWBILL, ALPHONZO NEWBILL, ALPHONS NEWBILL, ALPHONSE NEWBILL, LORENZO NEWBILL, WILLIAM R. GOLD, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2012
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 he pushed off of me.
Q: Let me back up.
A: As I attempted to stop him he pushed off me.
Q: How did you try to stop him exactly?
A: When I exited my vehicle I was right on the sidewalk. He was riding the bicycle on the sidewalk right towards me.
A: I attempted to call him over at which time he continued to come towards me and tried to go around me by placing out his arm at which time he was pushing off me. Pushing off my chest.
Q: So you tried to kind of corral him?
A: I tried to grab him at that time.
From his vehicle, Barry observed Rivera's attempt to stop defendant and testified that, after spotting Rivera, defendant made an "evasive maneuver on his bike . . . and entered into the lane of travel on Mt. Ephraim Avenue . . . ." Barry testified that he saw Rivera fall to the ground.*fn1
After defendant's bicycle ran into a car, he fell off and began to run. Rivera chased him through traffic and back onto the sidewalk along Mt. Ephraim. From a distance of approximately twenty feet, Rivera observed defendant throw a plastic bag over the fence of a roofing company located on the corner of Mt. Ephraim and Fairview Street. Barry drove ahead of defendant and placed him under arrest while Rivera and another officer retrieved the plastic bag, which was found to contain 126 bags of heroin. A search of defendant incident to his arrest resulted in the seizure of fourteen dollars in cash.
After the hearing, the trial court issued an oral decision, later supplemented with a written opinion. Although the judge found the testimony of Detectives Barry and Rivera "credible in all respects," he determined that the stop of defendant was not a field inquiry but "an investigatory stop." As such, the police lacked a reasonable and articulable suspicion that defendant was engaged or about to engage in criminal activity. Even though the investigatory stop of defendant was not justified, the judge found defendant's decision "not to heed the direction of the police to stop and, instead, to physically avoid apprehension and flee from the police[,]" justified the police pursuit of the defendant and his arrest.
The judge found that "the pursuit, seizure, and ultimate arrest of the defendant was lawful regardless of whether there was a sufficient basis for the attempted investigatory stop." The judge rejected defendant's reliance on State v. Tucker, 136 N.J. 158, 167 (1994), finding Tucker involved a defendant's spontaneous flight upon seeing an approaching police officer while Newbill did not spontaneously flee:
Rather, he fled after having been ordered to stop by a police officer, an order which the Defendant disregarded both by not stopping and by physically preventing his own apprehension by pushing off of the police officer to escape his grasp.
Alternatively, the judge found that in throwing the plastic bag over the fence while fleeing the police, defendant abandoned the bag and its contents and had no constitutionally protected interest in them.
The defendant's motion to suppress was denied. On appeal defendant argues:
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS SEARCH AND SEIZURE
A. THE TRIAL COURT'S FINDING THAT THE POLICE DID NOT HAVE REASONABLE SUSPICION TO DETAIN THE DEFENDANT IS SUPPORTED BY THE CREDIBLE EVIDENCE
B. THE STATE FAILED TO MEET ITS SUPRESSION HEARING BURDEN OF PROVING THAT THE ARREST WAS LAWFUL
Our scope of review of the trial court's factual findings and credibility determinations in a suppression hearing is limited. We must uphold the court's factual findings if they are "supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). These factual determinations will not be disturbed, even if we might have reached a different conclusion as trial tribunal. State v. Johnson, 42 N.J. 146, 162 (1964). However, a trial court's legal conclusions are not afforded such deference, and when a question of law is at stake, our review is plenary. State v. Mann, 203 N.J. 328, 337 (2010); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Here, we adopt the trial court's factual findings and the only issue before us is whether those facts warrant suppression.
The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect against "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "A seizure occurs if, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Sloane, 193 N.J. 423, 429 (2008) (quoting State v. Stovall, 170 N.J. 346, 355 (2002)).
The least intrusive police encounter is a "field inquiry," and occurs when a police officer approaches an individual and asks if the person is willing to answer questions. State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). A field inquiry may be conducted with grounds for suspicion without violating either the federal or the state constitution. State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)). If the officers do not prohibit an individual's right to move, the inquiry does not amount to detention. State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973).
An "investigatory stop," often referred to as a "Terry*fn2 " stop, or a "stop and frisk," is more intrusive and valid only if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. Pineiro, supra, 181 N.J. at 20 (quoting Nishina, supra, 175 N.J. at 510-11). The suspicion necessary to conduct a lawful Terry stop "need not rise to the probable cause necessary to justify an arrest."
Ibid. However, "[u]nless the totality of the circumstances satisfies the reasonable and articulable suspicion standard, the investigatory stop 'is an unlawful seizure, and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule.'" Mann, supra, 203 N.J. at 339 (quoting Elders, supra, 192 N.J. at 247).
A police encounter with a person constitutes an investigatory stop subject to the protections of these constitutional provisions if the facts objectively indicate that "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Tucker, supra, 136 N.J. at 166 (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)).
Applying these principles to the facts of this case, the motion judge correctly concluded that Rivera and his partner did not have a reasonable and articulable suspicion that defendant was engaged or about to engage in criminal activity when they ordered him to stop. The intelligence conveyed to the police was general and unparticularized, ("armed robberies being committed by black males . . . utilizing bicycles . . . ") not specific to the defendant. Defendant's "nervous demeanor" without more, did not give rise to a reasonable suspicion of criminal activity.
We now consider whether defendant's failure to stop, along with his subsequent flight, which included pushing Rivera in the chest, swerving his bicycle into traffic and colliding with a vehicle, justified his arrest and the admission of the discarded heroin. We first review the Supreme Court's decisions in State v. Crawley, 187 N.J. 440, 450, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006) and State v. Williams, 192 N.J. 1 (2007).
In Crawley, the Court held that a person who flees from an investigatory stop may be convicted of obstruction under N.J.S.A. 2C:29-1 even though the stop is later found to have been unconstitutional if the police officer making the stop was "acting in objective good faith, under color of law in the execution of his duties." 187 N.J. at 460-61. The Court emphasized that the officer must be acting in good faith, and offered the following guidance: "A police officer who reasonably relies on information from headquarters in responding to an emergency or public safety threat may be said to be acting in good faith under the statute. However, a police officer who without any basis arbitrarily detains a person on the street would not be acting in good faith." Id. at 461 n.8.
Even when the officer has not acted with "objective good faith," the seized evidence may still be admissible. In Williams, the Court held that evidence the police obtained in apprehending a person who has obstructed an unconstitutional investigatory stop may be admissible, even if the stop was unconstitutional, if that evidence was "sufficiently attenuated from the taint" of the stop. 192 N.J. at 15. The Court held that the determination of whether the police "have obtained the evidence by means that are sufficiently independent to dissipate the taint of their illegal conduct" requires consideration of three factors: "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct." Ibid.
In Williams, the defendant responded to a police command that he place his hands on his head to enable the officers to pat him down by pushing one of the officers and fleeing from the scene. Id. at 5. When the police caught the defendant, he was found with a handgun in his possession. Ibid. The Court concluded that the most significant factor in determining the admissibility of the handgun was "the presence of intervening circumstances," specifically defendant's pushing of one of the officers involved in the stop and fleeing from the scene, thus requiring the officers to engage in a police pursuit. Id. at 16-18. Based primarily on this factor, the Court concluded that the seizure of a handgun from the defendant following his obstruction of an unconstitutional investigatory stop was sufficiently attenuated from the stop to support admission of the evidence. Ibid.
The Williams Court cited State v. Seymour, 289 N.J. Super. 80 (App. Div. 1996), and State v. Casimono, 250 N.J. Super. 173 (App. Div. 1991), certif. denied, 127 N.J. 558, cert. denied, 504 U.S. 924, 112 S. Ct. 1978, 118 L. Ed. 2d 577 (1992), as cases where "eluding the police and resisting arrest in response to an unconstitutional stop or pat down constitute intervening acts and that evidence seized incident to those intervening criminal acts will not be subject to suppression." Id. at 16.
In Seymour, the defendant disobeyed a police signal to stop his car, which resulted in a police pursuit of over one mile during which defendant increased his speed from forty to fifty miles per hour and swerved onto the shoulder of the road several times. 289 N.J. Super. at 83-85. In the course of this police pursuit, the defendant discarded cocaine out the window of his car. Id. at 83. We concluded that defendant's failure to comply with the command to stop constituted eluding, in violation of N.J.S.A. 2C:29-2(b), and affirmed the denial of the defendant's motion to suppress evidence of the cocaine discarded during the course of the police pursuit. Id. at 84-89. In reaching this conclusion, we observed that "[f]leeing from the police in a motor vehicle with the police in vehicular pursuit could endanger defendant, the officer, other motorist, or pedestrians." Id. at 87.
In Casimono, the police directed a car to pull over to the shoulder of the road because the driver had made several lane changes without signaling. 250 N.J. Super. at 177. As the car pulled over, the police observed the defendant, who was a passenger, make a "furtive" movement. Ibid. Based on this observation, the police subjected both the driver and the defendant to pat down searches. Id. at 178. The driver resisted the search, first refusing to take his hand out of his pocket and then throwing something over the guardrail located along the shoulder of the roadway, which was subsequently determined to be a dollar bill containing cocaine residue. Ibid. At this point, defendant returned to the car where he retrieved a paper bag, which was subsequently determined to contain a substantial amount of cocaine, and also threw it over the guardrail. Ibid. The defendant and the driver then had to be physically subdued. Ibid.
We concluded that even though the stop of the car in which defendant had been riding was lawful, the pat-down searches of the driver and the defendant had been unlawful. Id. at 178-82. Applying the three-factor test adopted in Johnson and later reaffirmed in Williams, we held that evidence of the cocaine in the dollar bill should have been suppressed because the driver "threw [the] dollar bill containing cocaine residue over the guardrail during and in direct response to the illegal pat down search[.]" Id. at 186. However, we held that the trial court had properly denied the motion to suppress the cocaine contained in the paper bag because the unlawful pat down search of defendant had been completed before he voluntarily returned to the car, in violation of the police officer's directions, and retrieved the paper bag that he threw over the guardrail. Ibid. We noted that the only unlawful police conduct was the pat down searches of the defendant and the driver, that the bag of cocaine was not located on their persons but rather in the car, and that defendant had gained access to the bag only by disobeying a lawful police order to remain outside the car. Id. at 186-87. Under these circumstances, we concluded that "there was a significant break in the chain of causation between the illegal searches and the discovery of the cocaine." Id. at 187.
Here, in applying the Williams test, we find under the first or "temporal proximity" factor, there was a relatively short period of time between Detective Rivera's order to stop and defendant's flight leading to his throwing the heroin over the fence. Skipping to the third factor, there is no basis for concluding that the unconstitutional stop of defendant constituted flagrant police misconduct. The officers were conducting an investigation in a dangerous section of Camden in response to information that robberies were being committed by men using bicycles to escape. Our Supreme Court has recognized that that bicycles can be and have been used to facilitate the commission of serious crimes. State v. Harris, 181 N.J. 391, 424-25 (2004); State v. Johnson, 120 N.J. 263, 273 (1990).
Here, the officers intended only to stop and question defendant and their actions did not approach flagrant misconduct.
We turn to consideration of the second factor, the presence of intervening circumstances. N.J.S.A. 2C:29-2, makes it a crime to resist arrest or elude the police. Subsection (a) of that statute makes it a fourth-degree crime if a person "by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(2).
By the express terms of the statute, a person has no right to resist arrest by flight or any other means, even if the arrest constitutes an unreasonable seizure under the constitution. Crawley, supra, 187 N.J. at 453. A person has no constitutional right to endanger the lives of the police and public by fleeing or resisting a stop, even though a judge may later determine the stop was unsupported by reasonable and articulable suspicion. Id. at 458. As the Williams Court noted, "any flight from police detention is fraught with the potential for violence because flight will incite a pursuit, which in turn will endanger the suspect, the police, and innocent bystanders." Williams, supra, 192 N.J. at 12-13, (quoting Crawley, supra, 187 N.J. at 460 n.7). Therefore, for compelling public safety reasons, the resisting arrest, eluding, and escape statutes and interpretive case law require that a defendant submit to an illegal detention and that he take his challenge to court. Crawley, supra, 187 N.J. at 455.
Here, defendant did not comply with the officer's order to stop. Instead, he first pushed off of Rivera's chest and instigated a nighttime police chase in a dangerous section of Camden with some officers pursuing on foot and others in a patrol car. The chase began on the sidewalk of Mt. Ephraim Avenue near Ferry Avenue and continued into the street and back onto the sidewalk. In the course of his flight, defendant struck a vehicle with his bicycle before falling off and then ran "in and out of traffic" with Rivera in pursuit. The chase ended a block away near the corner of Fairview Street, after Barry drove ahead of where defendant was running, got out of the car and arrested him. Defendant's conduct resulted in a chase involving police on foot and in a vehicle that endangered not only the officers but other motorists and pedestrians in the area.
Defendant's actions in failing to submit to Officer Rivera's attempt to detain him followed by his pushing Rivera, colliding with a vehicle and fleeing from the police constituted "intervening criminal acts" which not only resulted in a break in the chain of causation between the unlawful police conduct and seizure of evidence but also posed a risk of physical injury to police officers and members of the public. See State v. Robert Williams, 410 N.J. Super. 549, (App. Div. 2009).
We conclude that there was significant attenuation between Rivera's initial command to stop and the seizure of the discarded heroin. That attenuation, and the good faith of the officers, sufficiently dissipated the taint of the unlawful attempt to detain defendant. Consequently, we affirm the trial court's denial of defendant's suppression motion.*fn3