NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-01-0183.
Telephonically Argued October 4, 2013
Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Michaels, of counsel and on the briefs).
Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).
Before Judges Fuentes, Simonelli and Haas.
A grand jury indicted defendant Kerron K. Taylor for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5b; fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. Following the denial of defendant's motion to suppress, he pled guilty to the unlawful possession of a weapon charge. On appeal, defendant raises the following contention:
THE STATE TROOPERS HAD NO VALID BASIS FOR STOPPING AND FRISKING MR. TAYLOR AS HE WALKED ALONG THE SIDEWALK, AND THE TAINT OF THIS ILLEGAL SEIZURE WAS NOT PURGED BY MR. TAYLOR RUNNING FROM THE TROOPERS. THEREFORE, EVIDENCE DROPPED BY TAYLOR DURING HIS FLIGHT FROM POLICE SHOULD HAVE BEEN SUPPRESSED.
We reject this contention and affirm.
According to New Jersey State Trooper Roderick Jones, at approximately 6:00 p.m. on November 9, 2011, he and two fellow troopers were on routine patrol in a high-crime area in Camden known for "plenty of shootings" and open-air drug dealing. The troopers were in an unmarked car with non-tinted windows, and wore plain clothes and black tactical vests with the words "STATE POLICE" written in yellow letters on the front and back. When the troopers approached Louis Street, they saw five to six males walking south along the sidewalk. As the troopers drove up the street, all of the men stopped and stared at the unmarked car for about ten to fifteen seconds.
Trooper Jones saw that one man in particular, later identified as defendant, was "really fixating" on the car and reached towards his waistband with his left hand and "maneuvered something" there. Based on the trooper's training and experience, defendant's behavior led him to believe that defendant might have a weapon in his waistband. The troopers slowed down and pulled up next to the men to get "a better vantage point." At that point, defendant turned, ran a few steps, and then stopped and again put his left hand on his waistband. Now fearing for their safety, the troopers jumped from the car, identified themselves as State Police, and ordered defendant to put his hands up. Defendant did not comply; he turned and ran with his left hand at his waistband. The troopers pursued him. During the pursuit, Trooper Jones saw defendant throw a black metal object into a residential yard, which the trooper was "pretty sure . . . was a weapon." Defendant continued to run but was soon apprehended. After placing defendant under arrest, Trooper Jones backtracked to where he saw defendant throw the object and found a loaded handgun.
Defendant filed a motion to suppress the handgun. The motion judge found that Trooper Jones had testified credibly; however, the judge concluded the investigatory stop was unconstitutional because the troopers lacked a reasonable and articulable suspicion that defendant had engaged in or was about to engage in criminal activity. The judge determined that defendant's staring at the unmarked car and taking a few steps was "not indicative of criminal behavior" and placement of his hand on his waistband "was an innocuous benign gesture."
Relying on State v. Williams (Williams II), 410 N.J.Super. 549 (App. Div. 2009), certif. denied, 201 N.J. 440 (2010), the judge ultimately found that defendant's subsequent flight after the troopers' direct command to stop purged the taint of the initial unconstitutional stop. The judge concluded that the troopers lawfully seized the handgun pursuant to a lawful ...