STATE OF NEW JERSEY v. LAQUANN T. ANDERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2645-08T42645-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LAQUANN T. ANDERSON, SHAMAR L.

ANDERSON, and TISA B. ANDERSON,

Defendants-Respondents.

__________________________________

 
Telephonically argued on June 9, 2009 - Decided

Before Judges Rodr guez and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-01-0003.

Linda A. Shashoua, Assistant Prosecutor, argued the cause for appellant (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief).

Timothy S. Farrow, Designated Counsel, argued the cause for respondent Laquann T. Anderson (Yvonne Smith Segars, Public Defender, attorney; Mr. Farrow, on the brief).

Katherine D. Hartman argued the cause for respondent Shamar Anderson (Law Offices of the Attorneys Hartman, attorneys; Francis J. Hartman, of counsel; Ms. Hartman, on the brief).

Timothy P. Reilly, Designated Counsel, argued the cause for respondent Tisa B. Anderson (Yvonne Smith Segars, Public Defender, attorney; Mr. Reilly, on the brief).

PER CURIAM

The State appeals the dismissal of Camden County Indictment No. 08-01-0003, which charged defendants Laquann Anderson, his brother Shamar Anderson, and their mother Tisa B. Anderson with assaulting two members of the Collingswood Police Department inside their home. The assault is alleged to have taken place after the police officers, who did not have a warrant, followed Laquann and Shamar into their home to complete their arrest for disorderly persons offenses allegedly committed when the officers were attempting to control a crowd in the street adjacent to the residence.

In the Law Division, defendants successfully moved to suppress the evidence and dismiss the indictment, arguing that because the officers' entry into the Anderson home without a warrant was unlawful, the events that took place once they were inside the house were inadmissible as "fruit of the poisonous tree." At the time of the evidentiary hearing on the motion, the State conceded that the officers' entry was unlawful. The motion judge agreed and determined that, because the entry was unlawful, defendants could not be charged with assault arising from their attempt to protect themselves during the unlawful entry.

On appeal, the State takes the position that the entry was lawful, that it is not bound by the concession made in the Law Division, and that, in any event, the motion judge erred in holding that an unlawful entry precluded prosecution based on defendants' efforts to defend themselves and their home. We conclude that the State is not bound by its concession, but nevertheless affirm the motion judge's conclusion that the warrantless entry was unlawful. However, we reverse the motion judge's dismissal of the indictment and remand to the trial court for further proceeding consistent with this opinion.

I.

The following facts and procedural history inform our disposition of this appeal. The underlying facts were developed at the evidentiary hearing held by the motion judge. The only witness at the hearing was Sergeant Richard Lunt, who was called by the State at the instruction of the motion judge.

A.

Lunt testified that, at around 12:30 p.m. on September 29, 2007, he was dispatched to the intersection of Woodlyne and Maple Avenues in the Borough of Woodlyne. The dispatcher reported "a fight involving numerous individuals." Lunt arrived at the scene shortly after Officer Brian DiCugno. Both officers were in uniform and driving marked patrol cars.

Lunt observed about ten to fifteen people "milling about." Lunt exited his vehicle and walked towards DiCugno, who was speaking with several bystanders. As Lunt approached, he "observed a vehicle that had a woman and some children in it." The vehicle was parked in front of 142 Maple Avenue. In addition to the driver and another woman in the passenger seat, there were three small children and an adult in the back seat. One of the children was in a infant car seat, but the car seat was not seat-belted into the vehicle. Lunt also noted that the other two children appeared to be under the age of four, under twenty-five pounds, and, consequently, not properly secured. See N.J.S.A. 39:3-76.2a.

Lunt walked over to the vehicle and asked the driver "what she happened to observe, if she happened to see a fight." Lunt testified that the driver was initially cooperative. However, when he informed her that "she needed to have the children properly secured in the vehicle prior to traveling," her attitude changed. Lunt related that the driver and the front-seat passenger began making statements to bystanders near the car, such as: "Can you believe this guy?" This apparently drew the bystanders' attention to the officers. According to Lunt, the driver became "boisterous in her conversation and mannerisms" and her "arms started moving about." He described her as "very agitated."

In his police report, Lunt wrote: "Due to the [bystanders] becoming angry and starting to make obscene comments, they were advised to disperse." In response to Lunt and DiCugno telling the bystanders to disperse, two men outside the car, who were later identified as Laquann and Shamar, started saying "Man, fuck you! Fuck you, cops!" According to Lunt, this conduct "enrag[ed] the other people who were in the crowd."

Lunt testified that he "observed [] DiCugno indicate to [] Laquann Anderson [] that he was under arrest." At that point, according to Lunt, DiCugno was approximately eight to ten feet away from him. Lunt was able to see Laquann, whom he described as "obviously upset, in the respect that he was being advised he was being placed under arrest." Laquann, who was approximately four feet away from DiCugno, was swearing and flailing his arms.

Lunt saw Shamar walking towards DiCugno and Laquann. Shamar was repeating: "Fuck you, man! Fuck you, cops!" as he approached. Lunt approached Shamar and, when he was approximately four feet from him, informed Shamar that he was under arrest for disorderly conduct.

Lunt testified that as DiCugno approached Laquann to handcuff him, Laquann fled on foot, running towards 142 Maple Avenue. Shamar followed him. Laquann was the first to enter the house, followed by DiCugno who was approximately two feet behind him. Shamar entered the house approximately three feet behind DiCugno, followed by Lunt.

To get into the home, the officers passed through an open screen door to an enclosed porch and then an open front door that led into the main portion of the residence. As they entered the house, the officers passed a woman standing in the doorway holding a small infant. Lunt testified that the woman "appeared as if she didn't know what was occurring." Lunt testified that, at this time, he did not know of the relationship between Laquann and Shamar, or that 142 Maple Avenue was their residence.

Lunt testified that as he entered the house, he was concerned for DiCugno's safety because he was being so closely followed by Shamar. Lunt instructed Shamar as he pursued him to "stop" and informed him that "he was under arrest."

The State offered no testimony about what happened after defendants and the officers entered the house. Lunt testified on cross-examination that the first time he saw Tisa, she was "striking" him with a "picture frame" and "a lot of things." The blows landed on his "head, the side of [his] ear, [his] left ear, [and his] shoulder." Lunt was asked on cross-examination: "How long were [you] in the Andersons' home before you sprayed your mace?" Lunt responded that it was within the first two minutes of entering the home.

B.

On or about October 18, 2007, a Camden County Grand Jury returned an indictment against defendants. Tisa was charged with third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a) (count two). Laquann and Shamar were charged with: two counts of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a) (count three and four); and two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count five and six). Additionally, Shamar was charged with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) (count seven).

However, the indictment included no charges related to the incidents that had taken place prior to entry into the house, such as the unspecified disorderly persons offenses that prompted the arrests, which might have included N.J.S.A. 2C:33-1 (failure to disperse) or N.J.S.A. 2C:33-2(b) (use of offensive language).

In late August 2008, defendants moved to suppress and to dismiss the indictment, arguing that the officers' entry into the Anderson house without a warrant was unlawful. The motion judge heard oral argument on the motion on September 19, 2008. During oral argument, the prosecutor conceded:

In the particular circumstances, regardless of whether they had a legal right to arrest them outside or not, the State concedes they could not enter the home without a warrant which they did not get. However, there is nothing in the law -- the statute specifically -- [] that would make it an illegal entry and an illegal arrest.

At the close of the hearing, finding that the entry into defendants' home had been unlawful, the judge dismissed the indictment. It is not clear whether an order of dismissal was entered at that time.

C.

On September 22, 2008, the motion judge spontaneously ordered a rehearing of the motion. In his letter to counsel, he specifically requested that briefs be submitted "on the issue whether the police, having no lawful authority to enter a person's house, can nonetheless enter the home and use force to arrest those inside the house. Further, in such instances, can the occupant[s] resist?" The judge scheduled the rehearing for October 10, 2008. He supplemented his request on October 2, 2008, requiring the State to produce the officers involved in the incident at the hearing.

The prosecutor submitted a letter on October 6, 2008, objecting to the motion judge's request that the officers be produced for the October 10 hearing. The State argued that it had no burden of production on defendants' motion to dismiss. Further, the State argued that because the only issues raised in the motion were legal in nature, testimony from the police officers was unnecessary to their resolution.

On October 7, 2008, the motion judge responded: "If the State does not produce the officers, the consequences of its failing to do so may result in dismissal of the charges against the defendants."

The State filed an emergent application with this court on October 8, 2009, requesting a stay and leave to appeal the trial judge's prior decision and new demands. We denied the application on October 10, 2008.

The rehearing was held on October 10, 2008. The State did not produce the officers at that time, but rather asked to "submit on the paperwork." The prosecutor argued as follows:

The State's position was this was a motion to dismiss the indictment based on entry without a warrant. There wasn't any factual question about the entry without a warrant. Everyone had agreed to that.

The next question, as framed by the Court in its letter was, based on the fact that we have an improper entry, can the defendants then resist or can they then assault the police officer or does the improper entry nullify their actions? I'm not sure what testimony the officers would present, because that's a legal question.

Following further discussion, the motion judge stated:

I just have a motion to dismiss an indictment before me and, as far as I'm concerned, it seems to me that, given the fact that the State concedes that this was an unlawful arrest and an unlawful entry, then I think that if -- that the State should be producing its police officers, because it's a suppression-type motion.

And I'm not going to tell the State what to do, but I can tell you this. Nobody has -- the State at least, I haven't seen a brief from the State that has addressed all the cases. And there's a number of cases out of jurisdiction. And I haven't seen that brief. And, so, I'm left in the situation where -- you know, I'm not going to get into a battle of wills here.

If the State decides it's [not going] to produce the police officers, then I have to make a decision on what the outcome of that should be.

The trial judge scheduled another hearing date for November 14, 2008, so that the State could produce the officers. Only Lunt was produced at that time. He testified as outlined above. The motion judge reserved decision.

On December 19, 2008, the motion judge issued a written opinion granting defendants' motion and dismissing the indictment. He found that, because the officers had entered the Anderson home unlawfully, defendants could not be charged with crimes associated with protecting their home. He noted that "the State presented no testimony or other evidence at the evidentiary hearing of any injuries to Sgt. Lunt or Officer DiCugno." The motion judge concluded "the State [had] not met its ultimate burden of persuasion to establish by credible evidence that the warrantless arrests of the Andersons in their home were not tainted by the illegal entry of Sgt. Lunt or Officer DiCugno into the Anderson's home."

The motion judge continued:

The Court finds that Sgt. Lunt and Officer DiCugno illegally entered and invaded the Andersons' home to arrest Laquann and Shamar Anderson, for at best a minor offense that had allegedly occurred outside the Andersons' Maple Avenue home, without any warrant to do so. The "hot pursuit" exception has no application here. There is an absence of any "exigent circumstances" justifying the police officers' warrantless entry into the Andersons' abode, or the arrest of the Andersons in their home. Also, the evidence of record does not credibly establish the use of deadly force by either of the Anderson brothers, or Tisa, their four-foot tall mother. Nor has the State rebutted the presumption under N.J.S.A. 2C:3-6b(c)(iii) that the Andersons had a reasonable belief in the existence of the danger that these police officers - who had illegally entered the Andersons' home - would expose them to substantial danger of bodily harm; as well as their presumptively justifiable right to use even deadly force to repel the police invaders, had they chosen to do so.

This appeal followed.

II.

On appeal, the State raises the following issues:

POINT I: THIS COURT MUST REVERSE THE TRIAL COURT'S DISMISSAL OF THE INDICTMENT, AND REINSTATE THE CHARGES IN FULL AS TO ALL DEFENDANTS. [Partially Raised Below].

A. THE OFFICERS' WARRANTLESS ENTRY INTO DEFENDANTS' RESIDENCE WAS LAWFUL TO EFFECTUATE THE ARRESTS THE OFFICERS HAD ALREADY MADE IN A PUBLIC PLACE, AND AS A RESULT OF HOT PURSUIT IN RESPONSE TO THE FELONY OF RESISTING ARREST.

B. THE TRIAL COURT NEVERTHELESS ERRED IN ASSIGNING THE REMEDY FOR AN IMPROPER ARREST AS THE DISMISSAL OF THE INDICTMENT OF DEFENDANTS' NEW AND DISTINCT CRIMES, AND BY FINDING AS A MATTER OF LAW THAT DEFENDANTS HAD A RIGHT TO RESIST AN UNLAWFUL ARREST IN THE HOME WITH DEADLY FORCE. [Raised Below.]

C. THE TRIAL COURT ALSO ERRED BY USURPING THE ROLE OF THE PETIT JURY TO RESOLVE FACTUAL ISSUES, BY APPLYING AFFIRMATIVE DEFENSES AS ESSENTIAL ELEMENTS OF THE INDICTMENT TO DETERMINE THAT DEFENDANTS' ASSAULTIVE ACTIONS DID NOT CONSTITUTE CRIMES. [Raised Below.]

The Supreme Court recently explained the standard of review applicable to a trial court's decision on a motion to suppress, as follows:

Our analysis must begin with an understanding of the standard of appellate review that applies to a motion judge's findings in a suppression hearing. As the Appellate Division in this case clearly recognized, an appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006) (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
 
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007).]

It is also well settled that an indictment should not be dismissed except on the "'clearest and plainest ground' and only if it is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1998) (quoting State v. Perry, 124 N.J. 128, 168 (1991)). Generally, "the decision whether to dismiss an indictment lies within the discretion of the trial court, and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." Id. at 229 (citation omitted).

Here, however, the dismissal was based primarily upon the motion judge's legal conclusion that, because the entry of the police officers into the Anderson home was unlawful, the State was precluded from charging defendants with assault and defendants were, in turn, justified in using force, even deadly force, to protect themselves and their home. In contrast to a judge's factual findings, a judge's legal determinations are subject to our plenary review on appeal. State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001) (quoting Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.")); State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

A.

We agree with the State that it is not legally bound by its concession, in the Law Division and before us on its application for leave to appeal, that the police officers entered the Anderson home unlawfully. State v. Elysee, 159 N.J. Super. 380, 384 (App. Div. 1978) ("Neither the State nor the court is bound by a stipulation of a matter of law which is contrary to controlling law on the subject."). However, we agree with the motion judge that the police officers were not lawfully permitted to enter the Anderson house to effectuate or complete their arrests for the unspecified disorderly persons offenses.

In Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 742 (1984) (internal citations and footnote omitted), the United States Supreme Court emphasized the protections afforded by the Fourth Amendment to the home as follows:

It is axiomatic that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. It is not surprising, therefore, that the Court has recognized, as "a 'basic principle of Fourth Amendment law[,]' that searches and seizures inside a home without a warrant are presumptively unreasonable."

Indeed, warrantless arrests in the home are permissible only when there exist both probable cause and exigent circumstances. Payton v. New York, 445 U.S. 573, 588-89, 100 S. Ct. 1371, 1381, 63 L. Ed. 2d 639, 652 (1980). The Court has recognized only a few situations that constitute the necessary exigent circumstances to make the warrantless arrests in the home lawful:

United States v. Santana, 427 U.S. 38, 42-43[, 96 S. Ct. 2406, 2409-10, 49 L. Ed. 2d 300, 305-06] (1976) (hot pursuit of a fleeing felon); Warden v. Hayden, 387 U.S. 294, 298-299[, 87 S. Ct. 1642, 1645-46, 18 L. Ed. 2d 782, 787-88] (1967) (same); Schmerber v. California, 384 U.S. 757, 770-771[, 86 S. Ct. 1826, 1835-36, 16 L. Ed. 2d 908, 919-20] (1966) (destruction of evidence); Michigan v. Tyler, 436 U.S. 499, 509[, 98 S. Ct. 1942, 1950, 56 L. Ed. 2d 486, 499] (1978) (ongoing fire) . . . .

[Welsh, supra, 466 U.S. at 750, 104 S. Ct. at 2097-98, 80 L. Ed. at 743.]

Even in cases in which exigent circumstances are found to exist, if "the government's interest is only to arrest for a minor offense, th[e] presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate." Ibid. (footnote omitted). See also State v. Holland, 328 N.J. Super. 1, 8 (App. Div.), certif. denied, 164 N.J. 560 (2000) (quoting the same); State v. Guertin, 461 A.2d 963, 970 (Conn. 1983) ("The [exigent-circumstances] exception is narrowly drawn to cover cases of real and not contrived emergencies. The exception is limited to the investigation of serious crimes; misdemeanors are excluded.").

In State v. Bolte, 115 N.J. 579, 597-98, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989), our Supreme Court held, in a case involving a motor vehicle and disorderly persons offenses, that "hot pursuit" does not ordinarily satisfy the "exigent circumstances" requirement of Welsh when only minor offense are involved. The Court left open the possibility that, when pursuing an individual for a minor offense, "a serious threat to the public safety" might create sufficient exigent circumstances to justify a warrantless home entry. Id. at 598.

The record before us, however, does not support a finding that Laquann and Shamar, who were unarmed and not acting violently towards the officers at that time, created a "serious threat to the public safety" justifying the warrantless entry, certainly when "less intrusive measures," such as "an attempt at a consensual entry or a telephonic warrant," were available, as Lunt testified. Ibid. In this regard, we note that DiCugno, who was the first to enter the Anderson home, did not testify, so we have no explanation of his reasons for entering and must presume that he was merely seeking to effectuate Laquann's arrest. While Lunt expressed concern about DiCugno, who was being followed by Shamar, that concern cannot be used to justify DiCugno's entry for present purposes. There was no testimony either officer entered the house out of concern that Laquann or Shamar would harm the residents.

The State's reliance on our decision in State v. Nikola, 359 N.J. Super. 573 (App. Div.), certif. denied, 178 N.J. 30 (2003), is misplaced. In Nikola, we upheld a warrantless arrest in the defendant's garage after the police had "seized" her for a Terry stop while she was just outside of her garage and not in the protected "curtilage." In doing so, we emphasized that there was no intrusion into a private area of the house itself, but rather entry into an open garage into which the defendant had stepped to obtain her driving credentials. Id. at 586. We distinguished Welsh on the basis that New Jersey views DUI offenses as being more serious than did Wisconsin at the time Welsh was arrested for such an offense. In this case, the police officers sought to arrest Laquann and Shamar for unspecified disorderly persons offenses with which they were ultimately never charged. In addition, and quite significantly, they were pursued into the "private part" of their house.

Consequently, we determine that the facts as found by the motion judge and the law set forth above support his determination that the warrantless arrest was unlawful.

B.

We now turn to the issue of whether the dismissal of the indictment charging defendants with assault-type offenses for conduct which took place after the unlawful entry was appropriate. We conclude that it was not.

In dismissing the indictment in its entirety, the motion judge found that any evidence of the alleged assaults by the defendants on the officers was inadmissible as "fruit of the poisonous tree." The trial judge reasoned:

Any evidence of force utilized by the Andersons to repel the officers' unlawful entry and use of force to effectuate the unlawful arrests of the Andersons was so connected with, and was clearly part and parcel of, and was not sufficiently independent of the officers' illegal invasion and accompanying illegal force against the Andersons, to dissipate the taint from [] Lunt's and [] DiCugno's unlawful conduct.

[(Emphasis added).]

We note that, in reaching this conclusion, the judge relied on facts and conclusions, highlighted in the quote above, that are not supported by the evidence adduced at the hearing, i.e., that the police officers were the first to use force and that their use of force was unlawful.

In State v. Crawley, 187 N.J. 440, 453-54, cert. denied, 549 U.S. 1078; 127 S. Ct. 740; 166 L. Ed. 2d 563 (2006), our Supreme Court recognized the long standing principle in New Jersey, under both common and statutory law, that an individual must submit to an arrest even when that arrest is unlawful.

We first review a related statute, N.J.S.A. 2C:29-2, which 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. N.J.S.A. 2C:29-2(a) provides: "It is not a defense to a prosecution [for resisting arrest] that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance." That provision codified this State's then-existing common law, which required that a person submit to an arrest, even if illegal. See State v. Mulvihill, 57 N.J. 151, 155-56 (1970) ("[I]n our State[,] when an officer makes an arrest, legal or illegal, it is the duty of the citizen to submit."); State v. Koonce, 89 N.J. Super. 169, 184 (App. Div. 1965) ("[W]e declare it to be the law of this State that a private citizen may not use force to resist arrest by one he knows or has good reason to believe is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances obtaining.").
 
This State's pre-Code common law rule forbidding resistance to an arrest when police officers act in good faith and under color of their authority furthered the important public policy of discouraging self-help. The policy recognized that in a society governed by laws our courts are the proper forum for challenges to the misuse of official power and for the vindication of rights. It was understood that resisting arrest greatly increases the likelihood of physical harm to both the arresting officers and the suspect, as well as to innocent bystanders. Addressing that subject in State v. Koonce, supra, Judge Conford wrote that a system of ordered liberty cannot tolerate "any formulation [of the law] which validates an arrestee's resistance of a police officer with force merely because the arrest is ultimately adjudged to have been illegal." 89 N.J. Super. at 183. Judge Conford further elaborated on the point:

Force begets force, and escalation into bloodshed is a frequent probability. The right or wrong of an arrest is often a matter of close debate as to which even lawyers and judges may differ. In this era of constantly expanding legal protections of the rights of the accused in criminal proceedings, one deeming himself illegally arrested can reasonably be asked to submit peaceably to arrest by a police officer, and to take recourse in his legal remedies for regaining his liberty and defending the ensuing prosecution against him. At the same time, police officers attempting in good faith, although mistakenly, to perform their duties in effecting an arrest should be relieved of the threat of physical harm at the hands of the arrestee.

[Id. at 183-84.]

[Ibid.]

Consequently, Laquann and Shamar were not free to resist arrest, forcibly or otherwise, simply because the arrest took place under unlawful circumstances. Nor was Tisa entitled to help them do so. And, as noted above, there is nothing in the current record to support an assertion that the police officers were the first to use force or that they used excessive force.

Application of the exclusionary rule to suppress evidence of the alleged assault is also inappropriate. In State v. Egles, 308 N.J. Super. 124, 131 (App. Div. 1998) (citation omitted), we recognized that:

[There is] no principle which would call for a dismissal of the entire complaint because a defendant is improperly arrested. Indeed, the rule is settled to the contrary: "an illegal arrest taints only the evidence that is the product of the arrest; it does not necessarily taint an entire prosecution."

We held instead "that the appropriate remedy for an improper arrest is suppression of any evidence that may have been seized in connection with that arrest." Ibid.

We have also recognized that evidence is not invariably subject to exclusion because it came to light because of illegal police conduct. State v. Casimono, 250 N.J. Super. 173, 182 (App. Div. 1991), certif. denied, 127 N.J. 558 (1992).

The determination whether evidence has been obtained by means that are sufficiently independent to dissipate the taint of illegal police conduct generally is based on 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." State v. Johnson, 118 N.J. 639, 653 (1990).

[Id. at 183.]

As the Supreme Court observed in State v. Johnson, 118 N.J. 639, 656 (1990) (alteration in original and internal quotation marks omitted), "[t]he second factor, intervening events, can be the most important factor in determining whether [evidence] is tainted."

In Casimono, supra, 250 N.J. Super. at 183, we found a police pat down of two individuals to be illegal and unwarranted. Nevertheless, we held that the illegal frisk did not preclude the defendants' conviction for resisting arrest and hindering apprehension, holding that "an illegal detention or search ordinarily will not bar a conviction for an assault, escape or other unlawful response committed by the person subjected to the unlawful police action," because the defendants' subsequent criminal activity constituted an intervening event sufficient to "dissipate the taint" of the illegal police conduct. Id. at 185.

In sum, the decisive factor supporting admission of the evidence of defendant's resisting arrest and hindering apprehension is the "intervening circumstance" of defendant's voluntary commission, subsequent to the illegal police conduct, of new criminal offenses with a high potential for causing injury to law enforcement officers. This "intervening circumstance" marks "the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost."

[Ibid. (quoting United States v. Leon, 468 U.S. 897, 911, 104 S. Ct. 3405, 3414, 82 L. Ed. 2d 677, 691 (1984)).]

Consequently, the alleged assault on the police officers after they entered the Anderson home, albeit unlawfully, created an intervening event that removed the taint from the illegal entry. We reject the motion judge's attempt to distinguish Casimono by characterizing the police conduct here as more egregious than the violation in Casimono because the Fourth Amendment violation occurred inside the defendants' home rather than outside their car. While factually true, we do not agree that the conduct in entering the house here, as found in the record, was so "flagrant" as to warrant exclusion of evidence of the alleged assault on the officers. Johnson, supra, 118 N.J. at 653. The purposes of the exclusionary rule, deterrence of police misconduct, would not be served by excluding evidence of a new and distinct offense involving an assault on police officers. See State v. Williams, 192 N.J. 1, 17 (2007) ("[T]he law should deter and give no incentive to suspects who would endanger the police and themselves by not submitting to official authority." (emphasis added)).

With respect to his findings of "flagrant" conduct by the police officers, the motion judge appears to have drawn adverse inferences from the State's failure to present testimony about the events that occurred inside the house. See State v. Clawans, 38 N.J. 162, 170 (1962). For example, as noted above, he presumed that the police officers were the first to use force and that they used excessive force. Those conclusions are nowhere supported in the testimonial record, nor is the making of such an adverse inference justified under the circumstances of this case.

The motions before the trial court were made by defendants on the premise that the unlawful entry tainted the subsequent arrest for assault. Indeed, the motion judge initially granted the motion on that basis after hearing legal argument only. Defendants did not seek relief on the basis that the police officers were the first to use force or that they used excessive force, and they submitted no evidence to support such an assertion. The motion judge had no authority to expand the scope of the motion or to require the State to provide proofs with respect to the events surrounding the substantive crime, which were not relevant to the issue of the unlawful entry. Consequently, the motion judge's findings with respect to those events are not supported by the record and cannot provide a basis for dismissal of the indictment.

Similarly, the motion judge improperly expanded the motion to address issues related to affirmative defenses. Based upon a record containing virtually no testimony about the events that occurred inside the Anderson house, the motion judge found that defendants were justified in defending their home through the use of force, even deadly force. He relied on N.J.S.A. 2C:3-6, which is an affirmative defense. N.J.S.A. 2C:3-1(a). However, a defendant bears the initial burden of producing evidence that supports an affirmative defense, although the burden ultimately shifts to the State to disprove the defense beyond a reasonable doubt. State v. Powell, 84 N.J. 305, 317 (1980). Here, defendants provided no such evidence. It is also unclear whether, as a matter of law, such an affirmative defense is even available under the circumstances of this case and given the public policy enunciated in Crawley, supra, 187 N.J. at 453-54, and discussed above. We decline to address those issues further on this appeal in the absence of a proper factual record and more extensive briefing. Consequently, we reject the motion judges findings and conclusions as to that issue. We do not, however, preclude defendants from raising them in the trial court in an appropriate manner.

III

In summary, we reverse the order dismissing the complaint, having determined that, although the entry into the Anderson home was unlawful, evidence concerning the alleged assaults on the police officers is not excludible as "fruit of the poisonous tree." We also determine that the motion judge's consideration of issues related to the potential affirmative defense of justification was unwarranted procedurally and made in the absence of a proper record. We remand to the trial court for further proceedings consistent with this opinion.

 
Reversed and remanded.

Because all defendants share the same last name, they are referred to by their first names in this opinion.

Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

Lunt's police report was admitted into evidence and read at the hearing on November 14, 2008. However, it was not included in the appendix on appeal.

The motion judge's finding that Lunt conceded that he knew 142 Maple Avenue was the Andersons' home is not supported by the transcript of Lunt's testimony.

Under the first count of the indictment, Marlon J. Davis was charged with possession of weapon (knife) for unlawfully purposes. He pled guilty to the charge in February 2007 and that charge is not part of the present appeal.

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1268, 20 L. Ed. 2d 889 (1968).

See N.J.S.A. 2C:3-7 (detailing the permissible use of force in law enforcement).

We express no opinion with respect to the legal consequences of any use of excessive force because there is no factual basis for us to do so on the present record. Our decision should not be understood to preclude consideration of the issue on an appropriate factual record.

(continued)

(continued)

29

A-2645-08T4

July 24, 2009