January 18, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JASON E. RUE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-05-0619 and 07-10-1146.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2012 -
Before Judges Ashrafi and Hayden.
Defendant Jason Rue pleaded guilty to illegal drug charges in two indictments. Pursuant to Rule 3:5-7(d), he appeals the denial of his motion to suppress evidence, and he also appeals his sentence of seven years imprisonment. We reverse in part and remand to permit defendant to withdraw his guilty plea to charges in one of the two indictments.
Defendant was arrested on March 15, 2007, and charged with possession of heroin with intent to distribute. He was released on bail but arrested again on April 19, 2007, and charged with possession of marijuana with intent to distribute. Mercer County grand juries returned separate indictments on the heroin and the marijuana charges.
The heroin indictment resulted from defendant's arrest after he drove away from a police command to stop his car. He contends the command was a seizure in violation of his rights under the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution because the police had no reasonable suspicion that he was engaged in criminal activity. The trial court agreed, but it also concluded that the constitutional violation was attenuated by defendant's failure to obey the police command.
After the trial court's suppression ruling, defendant entered pleas of guilty to three charges in the heroin indictment, including third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7, -5(a)(1), -5(b)(3), and also to fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(12), in the second indictment. Defendant did not have a plea agreement with the State, but the trial judge indicated his intent to impose concurrent sentences on the two indictments.
Defendant was subject to a mandatory extended term sentence because of a prior conviction for a drug offense. N.J.S.A. 2C:43-6(f), -7(c). The court sentenced him to seven years in prison on the heroin charge, with a mandatory three years to be served before eligibility for parole, N.J.S.A. 2C:35-7(a). On the marijuana charge, the sentence was a concurrent term of eighteen months in prison.
On appeal, defendant argues:
THE TRIAL COURT SHOULD HAVE SUPRESSED THE EVIDENCE IN THIS CASE BECAUSE THE INITIAL ATTEMPT TO STOP AND THE ENSUING DETENTION OF THE APPELLANT WAS UNCONSTITUTIONAL AND THE DISCOVERY OF EVIDENCE WAS NOT SUFFICIENTLY ATTENUATED FROM THE ILLEGAL STOP TO JUSTIFY THE APPLICATION OF THE ATTENUATION EXCEPTION TO THE EXLUSIONARY RULE. (U.S. CONST., AMENDS. IV AND XIV; N.J. CONST. (1947), ARTICLE I, PAR.7).
A. Mr. Rue's Actions Did Not Give Rise to Probable Cause That He Committed the Crime of Obstruction or Eluding.
B. Even If Law Enforcement Had Reasonable Suspicion to Stop the Appellant for the Crime of Obstruction or Eluding, the Fruits of That Seizure Were Not Sufficiently Attenuated from the Initial Unconstitutional Stop to Cleanse Them from the Taint of That Illegal Seizure and, Therefore, Should Have Been Suppressed.
THE SENTENCES WERE EXCESSIVE AS THE COURT FAILED TO PROPERLY CONSIDER THE MITIGATING FACTORS AND SENTENCED MR. RUE TO AN AGGREGATE TERM OF SEVEN YEARS WITH A THREE YEAR PERIOD OF PAROLE INELIGIBILITY.
Our decision on the first point renders moot defendant's argument that the seven-year sentence was excessive, that he should have been sentenced to a maximum five years in prison. We have nevertheless considered the sentencing issue for purposes of completeness in the event of further appeal. Defendant's arguments concerning his sentence do not have sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2). We comment only that the sentencing court did not abuse its discretion in declining to find mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), excessive hardship to defendant or his dependents. Defendant did not live with his children and was in arrears in providing financial support for them.
With respect to the suppression issues, the "fruit of the poisonous tree" doctrine requires that evidence derived through an unconstitutional search or seizure be excluded at a defendant's trial. Wong Sun v. United States, 371 U.S. 471, 485, 488, 83 S. Ct. 407, 416, 417, 9 L. Ed. 2d 441, 454, 455 (1963). However, the so-called attenuation doctrine, see Brown v. Illinois, 422 U.S. 590, 602-05, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 426-28 (1975), allows the prosecution to avoid the exclusionary rule if the connection between the unlawful police conduct and the evidence is "so attenuated as to dissipate the taint" from the unlawful conduct. State v. Badessa, 185 N.J. 303, 311 (2005) (quoting Murray v. United States, 487 U.S. 533, 537, 108 S. Ct. 2529, 2533, 101 L. Ed. 2d 472, 480 (1988)).
The trial court denied defendant's motion to suppress based on its application of the attenuation doctrine as discussed by the Supreme Court in State v. Marcellus Williams, 192 N.J. 1, 15 (2007). After the trial court's ruling, this court issued its opinion in State v. Robert Williams, 410 N.J. Super. 549 (App. Div. 2009), certif. denied, 201 N.J. 440 (2010), a case that further analyzed the attenuation doctrine in the context of flight from the police. Still later, after this appeal was briefed and submitted for our decision, the Supreme Court revisited the attenuation doctrine in the context of a defendant who refused to cooperate with police commands. State v. Shaw, ___ N.J. ___ (2012). The two opinions issued after the trial court's suppression decision lead us now to reverse defendant's conviction on the heroin charges.
Testimony at the suppression hearing showed the following facts. On the night of March 15, 2007, Officers Maxwell and Addar were patrolling in their marked police car in a high-crime, gang-activity area of Trenton. They saw an Oldsmobile stopped in a driveway with its headlights on and a person leaning into the passenger window. Maxwell recognized the person leaning into the Oldsmobile as a drug offender. The officers stopped their car and shined a flashlight onto the stopped Oldsmobile. The two persons seemed startled. The drug offender stepped away from the car and began walking toward the entrance of a nearby building. Maxwell told Officer Addar to detain that person while he approached the open passenger window of the Oldsmobile. Before he got there, the Oldsmobile began to drive out of the driveway. Maxwell twice commanded the driver, who was later determined to be defendant Rue, to stop the car. Defendant did not obey the commands. He drove onto the street and made a right turn about a block away.
Maxwell immediately returned to his car, made a K-turn, and followed in the direction of the Oldsmobile. Within minutes and a short distance away, he caught up to the Oldsmobile stopped at a traffic light. Maxwell turned on his overhead lights, and the Oldsmobile did not proceed further. As the officer approached the side of the car on foot, he saw defendant put his hand near his waistband. Defendant did not comply immediately with the officer's command to remove and show his hand and, instead, reached toward the glove compartment. Concerned that defendant might have a weapon in the car, Maxwell ordered him out of the car. Defendant complied. According to Maxwell, as defendant put his hands on the roof of his car ready to be patted down, several bundles of suspected heroin fell to the ground out of his pant leg. Maxwell arrested defendant and recovered five bundles containing a total of forty-nine glassine bags of heroin.
Defendant's testimony varied from that of Maxwell as to the events in the driveway and at the location of his arrest. Significant for purposes of this appeal, defendant claimed he never heard the officer command him to stop when he was pulling out of the driveway. He also relied on the testimony of Officer Addar, who had not heard Maxwell give a command to stop, but Addar also testified that he was pre-occupied with pursuing the other individual.
The trial judge made express credibility findings in favor of Officer Maxwell's version of events. The judge explained in detail his findings of fact and the conclusions of law he drew from those facts. He concluded that Maxwell did not have reasonable suspicion to effect a temporary investigative detention of defendant in the driveway only because defendant was stopped in his car and speaking to a known drug offender. However, the judge concluded that defendant's failure to obey Maxwell's command to stop provided at least reasonable suspicion justifying the officer's subsequent stop of his car at the traffic light and detention of defendant for the offense of obstruction. See N.J.S.A. 2C:29-1.
Reviewing the Supreme Court's discussion of the attenuation doctrine in Marcellus Williams, supra, 192 N.J. at 15-18, the judge concluded that the obstruction offense was an intervening circumstance that dissipated the taint of the initial unconstitutional command to stop, and, therefore, the seizure of heroin resulting from the motor vehicle stop did not violate defendant's constitutional rights against unreasonable search and seizure.
Before us, defendant argues that our subsequent holding in Robert Williams, supra, 410 N.J. Super. 549, requires suppression of the heroin. In Robert Williams, we held that an unconstitutional order to a fleeing person to stop was not attenuated by the suspect's continuing his flight and thus his obstruction offense. Id. at 564. Here, the trial judge understandably did not anticipate our holding in Robert Williams, but the State's brief on appeal inexplicably fails to discuss, or even to cite, Robert Williams.*fn1
We consider the application of the holdings of both Marcellus Williams and Robert Williams to the facts of this case to present a debatable legal issue. However, the Supreme Court's very recent application of the attenuation doctrine in Shaw, supra, ___ N.J. ___, convinces us that the prosecution did not show sufficient attenuation to avoid suppression of the heroin evidence in this case.
In Marcellus Williams, supra, 192 N.J. at 4-5, police officers on patrol received a dispatch late at night that an African-American man wearing a black jacket was selling drugs at a particular location. The defendant was at that location and fit the general description. Id. at 5. An officer approached, intending to pat him down for the officer's protection. The officer ordered the defendant to put his hands on top of his head, but the defendant pushed the officer and fled on foot. He was apprehended within seconds and a handgun was found in his waistband. Ibid.
The Supreme Court commented about the "doubtful" propriety of the investigatory Terry*fn2 stop the officer attempted, but it did not reach a decision as to whether the officer's order for the defendant to put his hands on his head violated his constitutional rights. Id. at 10. Instead, the Court concluded that "[t]he taint from that initial stop was significantly attenuated by defendant's criminal flight that caused the handgun's later seizure, and accordingly the application of the exclusionary rule is unwarranted in this case." Id. at 10-11.
To reach that conclusion, the Court first confirmed and applied its holding in State v. Crawley, 187 N.J. 440, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006), that "a defendant commits the crime of obstruction if he disobeys a police command and flees from an investigatory stop -- even an unconstitutional one." Marcellus Williams, supra, 192 N.J. at 4, 11-13. The Court then applied the three factor analysis of the attenuation doctrine: "(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." Id. at 15 (quoting State v. Johnson, 118 N.J. 639, 653 (1990)). The Court concluded: "[the d]efendant's resistance to the pat down and flight from the police in this case was an intervening act --the crime of obstruction-- that completely purged the taint from the unconstitutional investigatory stop." Id. at 18.
In Robert Williams, supra, 410 N.J. Super. at 555-58, however, we held that the defendant's brief flight on a bicycle from a police command to stop did not give officers reasonable suspicion to detain him. Writing for the court, Judge Skillman considered the three factors of the attenuation doctrine and rejected the State's argument that a defendant's flight is automatically an "intervening circumstance" that dissipates the taint of the initial police conduct. Id. at 559-60. He reviewed prior New Jersey cases cited in Marcellus Williams and concluded that each case demonstrated evidence of unlawful conduct by the defendant beyond mere flight as the intervening circumstance that broke the chain of causation from the unconstitutional actions of the police to the discovery of incriminating evidence. Robert Williams, supra, 410 N.J. Super. at 560-63. Judge Skillman concluded that, where the defendant did nothing more than violate the obstruction statute by failing to heed a police command to stop, the State did not demonstrate "significant attenuation" of the unconstitutional police conduct.*fn3 Id. at 564.
The State and defendant have each selected favorable language from the two Williams cases to support their positions in this case that defendant's driving away from a police order to stop was or was not a sufficient "intervening circumstance" to dissipate the taint and to allow admission of drugs found later. Viewing only those two cases, the question is a close one, and the trial judge's reading of Marcellus Williams was reasonable.
But the Supreme Court's December 2012 decision in Shaw, supra, ___ N.J. ___, set stricter limits on the attenuation doctrine. In Shaw, the police were attempting to execute a warrant for a fugitive at the apartment complex were he lived. The defendant walked out of the building. Defendant was not the fugitive but, like him, was an African-American man. Id. at ___ (slip op. at 12). The police did not see the defendant do anything to suggest he might be involved in criminal activity. Ibid. When an officer asked for his name, the defendant refused to identify himself and attempted to walk away. Id. at ___ (slip op. at 13). The police detained him to determine his identity. After only a few minutes, other officers arrived and confirmed that the defendant was not the fugitive they were seeking, but they also revealed that an arrest warrant existed for the defendant for an unrelated parole violation. Incident to the defendant's arrest on the parole warrant, drugs were found on his person. Id. at ___ (slip op. at 14).
In his prosecution on drug charges, the Supreme Court viewed the issue as "whether the drugs found on Shaw were the product of the 'exploitation' of the unlawful stop and detention or of a 'means sufficiently distinguishable' from the constitutional violation such that the 'taint' of the violation was 'purged.'" Id. at ___ (slip op. at 30) (citing Hudson v. Michigan, 547 U.S. 586, 592, 126 S. Ct. 2159, 2164, 165 L. Ed. 2d 56, 65 (2006)). The Court held that the existence of the parole warrant was not a sufficient intervening circumstance to dissipate the taint of the initial unconstitutional detention and the subsequent search of the defendant's person incident to his arrest. Id. at ___ (slip op. at 42).
The decisions in Shaw and Robert Williams lead us to conclude that the disorderly persons offense of fleeing an unconstitutional police command to stop, N.J.S.A. 2C:29-1(b), without more, does not dissipate the taint of the constitutional violation. Especially where the police seized evidence almost immediately and through a direct chain of causation that included their unconstitutional command, the exclusionary rule and the "fruit of the poisonous tree" doctrine require suppression of the evidence.
Here, the trial judge did not have the benefit of reviewing Shaw and Robert Williams when he made his ruling. That ruling must be reversed, and the heroin evidence must be suppressed. Defendant must be granted the opportunity to withdraw his guilty plea to the heroin charges. Because our reversal does not affect defendant's conviction on the marijuana charge, his guilty plea and sentence on the second indictment will stand.
Reversed and remanded. We do not retain jurisdiction.