STATE OF NEW JERSEY v. WENDELL MANN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2801-06T42801-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WENDELL MANN,

Defendant-Appellant.

__________________________________________

 

Argued October 29, 2008 - Decided

Before Judges Rodr guez and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Accusation No. 05-09-00981.

Dennis A. Cipriano argued the cause for appellant (Mr. Cipriano, attorney; Robert Carter Pierce, of counsel and on the brief).

Johanna Barba Jones, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General; Ms. Jones, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Wendell Mann was convicted of two counts of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); two counts of second-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(2); third-degree hindering apprehension, N.J.S.A. 2C:29-3b; fourth-degree hindering prosecution, N.J.S.A. 2C:29-3b; and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1). After appropriate merger of convictions, the judge imposed concurrent sentences aggregating seven years. Prior to trial, defendant joined in the motion to suppress evidence filed by co-defendant Conner. We now reverse, concluding that the motion to suppress evidence should have been granted.

These are the facts presented by the State at a hearing on the motion to suppress. The State concedes that co-defendant Michael Futch was known by members of Roselle Police Department to be selling marijuana from his home and his green 1993 Lexus. The police had obtained a search warrant for Futch's home and Lexus. Roselle Police Patrolman Barry Laraway was the sole witness for the State. He testified that he was assisting twelve other officers in the execution of a search warrant on a Lexus motor vehicle and the home of co-defendant Futch. On June 1, 2005, at approximately 6:30 p.m., Laraway was in a marked patrol unit observing the Lexus in the parking lot of a fast-food restaurant. According to Laraway, he watched the Lexus for approximately thirty minutes. A GMC Yukon then pulled into the parking lot next to the Lexus. Laraway testified:

I observed the suspect that was the target of the - this Mr. Futch exit his vehicle. He approached the green Yukon that had pulled into the parking lot or the blue Yukon that had pulled into the parking lot. And there was a brief encounter between the driver of that vehicle, who was later identified as Wendell Mann, who had exited that vehicle subsequently as police units converged on the area to make the arrest.

According to Laraway, upon seeing the police vehicle, defendant was visibly nervous and immediately bolted into the fast-food restaurant. Sergeant Brennan yelled to Laraway, "get him!;" and to defendant to "stop." Laraway ordered defendant to stand still. However, defendant ran into the restaurant. Laraway followed defendant into the men's room. There, Laraway recovered plastic bags that defendant was attempting to flush down the toilet. Later, it was determined that the bags contained marijuana and ecstasy tablets.

After defendant was placed under arrest, Laraway checked on the Yukon and its two other occupants, co-defendants Conner and Pringley. Upon looking into the window, Laraway saw what he believed to be illegal narcotics. He ordered Conner and Pringley out of the vehicle and seized the CDS that was on the backseat.

On cross-examination, Laraway testified as follows:

Q. So [Futch] exited the [Lexus] and then talked to [defendant]?

A. No. These individuals [men in Lexus] were actually inside the restaurant, exited, approached the Lexus, and then that was the given moment when the Yukon had pulled in the parking lot.

Q. The three individuals in the Lexus, they went into the [fast-food restaurant] before the Yukon was there?

A. Yes.

. . . .

Q. When the three gentlemen exited the [fast-food] restaurant is it your testimony that one of those gentlemen walked over to the Yukon?

A. Yes.

This testimony was in contrast to Laraway's testimony on direct. The defense presented the testimony of Private Investigator Jose Perez, who took photographs of the Yukon. According to Perez:

A. Well, my observation was that from distances from three to two feet away you could not see clearly into the vehicle. From distances of one foot you still couldn't see - you could only distinguish maybe shapes, but you couldn't clearly see what was in the vehicle.

This was contrary to Laraway's testimony. The judge denied the motion to suppress, finding that Laraway had information that Futch was dealing drugs out of his Lexus and Laraway had "reasonable and articulable suspicion that, in fact, a drug transaction was taking place."
On appeal, defendant contends that:

THE TRIAL COURT ERRED IN DENYING MR. MANN'S MOTION TO SUPPRESS BECAUSE THE POLICE ILLEGALLY DETAINED HIM WITHOUT ANY REASONABLE SUSPICION OF CRIMINAL ACTIVITY.

THE CDS RECOVERED FROM THE YUKON WERE FRUITS OF THE POISONOUS TREE.

There were two seizures of narcotics in this case. The first was the plastic bags seized by Laraway from the toilet bowl in the fast-food restaurant. The second was the marijuana, cocaine and ecstasy tablets from the rear passenger seat of the Yukon. We discuss each one separately.

The first seizure fits very nearly the scenario presented in State v. Tucker, 136 N.J. 158, 165-66 (1994). In Tucker, a person sitting on a curb fled upon seeing a police vehicle. Id. at 162. The first officer radioed a second officer, who cut off the defendant. Ibid. Mr. Tucker continued to run. Ibid. In the process, he discarded an object. Ibid. The object was later identified as crack cocaine. Ibid. The Court held that the defendant could not have felt free to leave and the police action would cause a reasonable person to believe that the police wanted to capture him and not just speak with him. Id. at 166. The Court, therefore, held that the attempted arrest was a seizure within the meaning of Article 1, Paragraph 7 of the New Jersey Constitution. Ibid. In short, although there was a subsequent basis to charge Mr. Tucker, the fact that he ran away was not enough to constitute initial reasonable suspicion. Id. at 168-69. The subsequent plain sight observation was tainted by the lack of reasonable suspicion. Id. at 172.

The court adhered to this holding in State v. Caldwell, 158 N.J. 452 (1999), where Mr. Caldwell was standing on a street when a police vehicle drew close. Id. at 455. Caldwell turned and ran, while the police yelled at him to "stop, police . . . don't run any more." Ibid. The court held that the command was a seizure. Id. at 461.

Here, Laraway had no basis for chasing defendant. He simply saw that defendant was visibly nervous upon seeing the police vehicle. He ran into the restaurant after he was told to stop. Whatever information the police had about Futch is irrelevant with respect to defendant. The fact that two men spoke briefly in the parking lot of a fast-food restaurant, without more, does not transfer suspicion to defendant. There was no testimony of an exchange of object or currency between the two men.

Laraway lacked an objectively reasonable and articulable suspicion to stop the defendant based solely on this conversation. We agree with defendant that Laraway believed Mann to be engaged in a drug transaction with Futch due to the information he received that Futch would deal drugs from his Lexus. Laraway's direct testimony would support that this was a hunch. Moreover, the fact that Futch was exiting the fast-food restaurant (not his Lexus), as he testified on cross-examination, does not support the trial court's conclusion that a drug transaction was taking place. See State v. Love, 338 N.J. Super. 504, 508 (App. Div. 2001) (search found to be improper when based on only a hunch).

In State v. Dangerfield, 171 N.J. 446, 451 (2002), Dangerfield attempted to leave the area, rather than speak to the officer. We held that this departure did not create a reasonable suspicion sufficient to justify the stop of the defendant. Id. at 458.

In State v. Costa, 327 N.J. Super. 22, 26 (App. Div. 1999), two men were sitting in their motor vehicle in the parking lot of a tavern open for business. When they exited the vehicle, a law enforcement officer stopped the two men, which led to the recovery of marijuana. Id. at 26-27. We held that the detention was not supported by reasonable articulable suspicion because the only indication of criminal activity was the manner in which defendant and his companion exited the vehicle. Id. at 32. See State v. Kuhn, 213 N.J. Super. 275, 282 (App. Div. 1986) (holding that simply entering a motor vehicle when a police vehicle passes by itself is not enough to justify a Terry stop).

As for the second seizure of narcotics, it is settled that where there is a violation of the Fourth Amendment to the United States Constitution that results in the discovery of other evidence, that evidence is inadmissible. Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 453-54 (1963); State v. Ercolano, 79 N.J. 25, 34 (1979). Reversed.

 

Defendant was tried jointly with co-defendant Wendell Conner and Jarrod Pringley, both of whom were acquitted by the jury.

Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968).

(continued)

(continued)

8

A-2801-06T4

June 19, 2009