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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...