December 14, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
ANTHONY D. JOHNSON, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 11-09-545.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2012
Before Judges Grall and Koblitz.
The grand jurors for Salem County charged defendant Anthony D. Johnson with committing six crimes on April 29, 2011: possession of a handgun without a permit to carry, N.J.S.A. 2C:39-5b; possession of a handgun with purpose of using it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a; possession of a handgun while having a disqualifying prior criminal conviction, N.J.S.A. 2C:39-7b; tampering with evidence, N.J.S.A. 2C:28-6(1); hindering his own apprehension, N.J.S.A. 2C:29-3b; and resisting arrest, N.J.S.A. 2C:29-2a. On defendant's motion to suppress the handgun, Judge Farrell determined that the seizure was the product of, and insufficiently attenuated from, the illegal stop that led to the gun's seizure. We granted the State leave to appeal from that determination and now affirm.
Patrolman May of the Salem City Police Department was the only witness at the hearing on defendant's motion to suppress. On the morning of April 29, 2011, May was on patrol and received a radio transmission from Corporal Seibert advising that a concerned citizen told him that "Pooh Bear," a black male of "stocky build" and having "long facial hair" had pulled a silver revolver and pointed it at a dog. May knew a man named Anthony Johnson, who matched the description he had been given and was known as "Pooh Bear." May knew another man with the same moniker, but he was thinner and more clean cut than defendant.
After hearing the report, May, who was in uniform and driving a marked police car, continued patrolling and looked for defendant. Within a half hour, May spotted defendant, notified other officers in the area and waited in his patrol car until they arrived. May then left his patrol car and approached defendant, explaining that he was conducting an investigation. Defendant acknowledged May as he approached and walked with him toward the police car but then "immediately began to flee on foot."
Telling defendant to stop, May and another patrolman gave chase. Defendant continued to run, turned off the sidewalk into a driveway between two houses, went behind an abandoned house and continued until he came to a six-foot fence. Trapped, defendant reached into his pants and withdrew a revolver, which he promptly threw into an open window of the abandoned house.
Defendant then raised his hands above his head and walked toward May. Defendant then cooperated, submitted to arrest and was placed in the police car. Thereafter, May retrieved the revolver from the abandoned house and took defendant to police headquarters. May's testimony does not include any facts indicating the duration or distance of the chase.
Judge Farrell determined that the initial investigatory stop was unconstitutional and, following the Supreme Court's decision in State v. Williams (Marcellus Williams), 192 N.J. 1, 14-18 (2007), turned to consider whether the police "obtained the evidence by means that are sufficiently independent to dissipate the taint of" the illegal stop. Id. at 15 (quoting State v. Johnson, 118 N.J. 639, 653 (1990)). In doing so, the judge addressed the determinative 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. (quoting Johnson, supra, 118 N.J. at 653).
Judge Farrell found that the police acted in good faith in investigating a report about a man with a gun, and that May's ordering defendant to stop without confirming the reliability of the informant or the information was not flagrant. Consequently, the judge concluded that the third factor favored admission of the evidence.
In contrast, the judge concluded that the second factor favored exclusion of the handgun defendant discarded. With respect to proximity, he found that there was no evidence suggesting that the unconstitutional stop and defendant's discard of the gun were anything other than "very close in time."
Noting that the question of taint in this case depended on the sufficiency of the intervening circumstances, Judge Farrell rejected the State's claim that defendant's decision to run after he was directed to stop amounted to obstruction prohibited by N.J.S.A. 2C:29-1 and was in itself sufficient to dissipate the taint. Here, the judge relied on this court's decision in State v. Williams (Robert Williams), 410 N.J. Super. 549, 552 (App. Div. 2009), certif. denied, 201 N.J. 440 (2010). In Robert Williams, Judge Skillman, writing for the panel, held that "commission of obstruction is insufficient by itself to establish significant attenuation." Ibid.
Carefully comparing the facts of this case to those of cases where conduct plus flight was determinative of attenuation, Judge Farrell found none here. Indeed, he concluded that defendant's conduct - the only intervening circumstance - was indistinguishable from the conduct of defendant Robert Williams, which this court found insufficient to establish the "significant attenuation" required to dissipate the taint of an unconstitutional stop. Id. at 564. The judge noted that, like Robert Williams, defendant did no more than flee after being directed to stop and discard the contraband he was carrying when apprehended. See id. at 554.
Judge Farrell further noted that aspects of a suspect's conduct deemed adequate to dissipate the taint in other cases were absent here. He found and reasoned, as Judge Skillman had in finding the conduct of Robert Williams inadequate, that: defendant had not pushed an officer before fleeing, Marcellus Williams, supra, 192 N.J. at 5; driven dangerously during a oneand-a-quarter-mile car chase that he provoked by disobeying an order to stop, State v. Seymour, 289 N.J. Super. 80, 83-85 (App. Div. 1996); or sought to avoid apprehension by returning to his car after being removed from it, State v. Casimono, 250 N.J. Super. 173, 177-78 (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). See Robert Williams, supra, 410 N.J. Super. at 563.
The State urges us to overturn Judge Farrell's well-reasoned decision that is wholly supported by the record and based upon a proper understanding of the legal principles. As we understand the State's argument, it is that the judge erred by failing to distinguish this case on the ground that defendant momentarily cooperated with the officer before he took flight. We fail to see how defendant's quick change of heart, which Patrolman May described as happening "immediately," unaccompanied by any act of resistance, aggression or dangerous behavior, warrants a finding of "significant attenuation" justifying reversal of this suppression order.
The order suppressing the handgun is affirmed substantially for the reasons stated by Judge Farrell.
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