STATE OF NEW JERSEY v. DON C. SHAW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1648-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DON C. SHAW,

Defendant-Appellant.

________________________________________________________________

Submitted May 3, 2011 Decided July 6, 2011

Before Judges Wefing, Baxter and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-09-2247.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a negotiated plea of guilty, defendant Don C. Shaw appeals from his September 3, 2009 conviction on charges of second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. We reverse the denial of defendant's motion to suppress, concluding that defendant's arrest on an outstanding parole warrant did not constitute an independent, intervening circumstance that dissipated any taint from the initial unlawful stop. In light of that disposition, we need not address defendant's contention that the judge should have merged his school zone conviction with the second-degree distribution conviction.

I.

At the hearing conducted on defendant's motion to suppress, the State presented testimony establishing that on the evening of June 11, 2008, two teams of law enforcement officers in Atlantic City were participating in Operation Falcon. Operation Falcon was a nationwide initiative conducted by the United States Marshals Service in conjunction with federal, state and local law enforcement in a concerted effort to execute outstanding arrest warrants and apprehend fugitives. On the night in question, the first team, consisting of Detective Steve Brown of the New Jersey State Police and several other officers, approached an apartment building at 507 Tennessee Avenue in search of an individual who was the subject of an outstanding arrest warrant. The officers knew his name, but did not have his picture or any description, other than that he was a black male. The apartment complex contained multiple units with a common entrance and exit. The officers were armed, and were attired in plain clothes with police markings.

The other Operation Falcon team was led by an Atlantic County Sheriff's Officer, Officer Herbert, who had been deputized as a United States Marshal. Herbert was accompanied by Parole Officer Dan D'Amico and Officer Steve Palamaro of the Atlantic City Police Department. The two teams were in constant radio communication. While Detective Brown's team was en route to 507 North Tennessee Avenue, they contacted Herbert's team by radio to ask them to proceed to that location to provide assistance.

Before the second team arrived, Detective Brown approached the front of the apartment building and saw two men, later identified as defendant and Niam Gardner, exit together from the common doorway. As soon as defendant and Gardner saw police, the two men "separated and went in two different direction[s]." Brown approached defendant and asked him for his name, but defendant mumbled something that Brown was unable to understand. Brown asked defendant for his name a few more times, but defendant remained mute. Brown told defendant he was not free to leave. Brown later testified that he had decided to detain defendant until the other team arrived.

After what Brown described as "a couple of minutes later," Officers Herbert, D'Amico and Palamaro arrived at the scene. Palamaro immediately recognized defendant and Gardner, announcing "that's Don Shaw." Parole officer D'Amico immediately told Officer Palamaro, "he's wanted by us [Division of Parole]."

Detective Brown then arrested defendant on the outstanding parole warrant, handcuffed him, and conducted a search of defendant's person incident to the arrest. The search revealed two "bricks" of heroin, packaged in 649 individually-wrapped baggies that had been placed in a plastic grocery store bag. Another trooper on the scene telephoned dispatch and learned that, in addition to the active parole warrant for defendant's arrest, there were two additional outstanding arrest warrants that had been issued by the Galloway Township Municipal Court. Brown later learned that the fugitive for whom he and the others were searching was someone other than defendant.

Defendant filed a motion to suppress, arguing that the initial field inquiry, which consisted of merely asking defendant his name, had escalated into an investigatory detention without the requisite reasonable and articulable suspicion. In a written opinion issued on April 29, 2009, the judge granted defendant's motion to suppress, reasoning that because the police had not observed defendant engage in any conduct that would have created an objective, articulable suspicion that defendant was involved in criminal activity, the stop was unlawful. The judge concluded that the discovery of the parole warrant came only after defendant "had been unconstitutionally detained" and thus, the subsequent arrest, and search of defendant's person, were invalid.

The State moved for reconsideration, presenting an argument it had not previously advanced. In particular, at the May 26, 2009 hearing on the State's motion, the State argued that regardless of the lawfulness of the initial stop, the pre-existing warrant for defendant's arrest constituted an intervening circumstance and independent basis for taking defendant into custody and searching his person, thus dissipating any taint flowing from the police officers' allegedly illegal initial detention of defendant. After applying the attenuation doctrine articulated by the United States Supreme Court in Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 2416 (1975), the judge evaluated the following three factors: the time that had elapsed between the illegal stop and the discovery of the evidence; the presence of any intervening circumstances; and the purpose and flagrancy of the police misconduct.

Applying the Brown factors, the judge found that: five to seven minutes had elapsed from when the police approached defendant and ordered him to stop, until the time the police learned defendant was wanted on a parole warrant; the discovery of the outstanding warrant or warrants constituted an intervening circumstance that dissipated any possible taint of the initial stop; and there had been no flagrant police misconduct or flagrant disregard of defendant's constitutional rights. The judge therefore "reversed" his earlier grant of defendant's motion to suppress, and concluded that the discovery of the heroin was the result of a lawful search incident to defendant's arrest on the outstanding parole warrant.

The judge also reasoned that as a parolee, defendant had a diminished expectation of privacy in light of the strong societal interest in apprehending those who abscond from parole. The judge held that such interests outweighed any limited expectation of privacy that defendant may have had, especially in a circumstance such as this where the police had "no sinister motive" and engaged in "no flagrant misconduct."

On June 1, 2009, defendant pled guilty to the two crimes we have already noted. In accordance with terms of the negotiated plea agreement, the judge sentenced him to an eight-year term of imprisonment subject to a four-year period of parole ineligibility on the second-degree drug distribution charge, concurrent to an identical extended-term sentence on the third-degree school zone charge.

On appeal, defendant raises the following claims through assigned counsel:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED AS THE FRUITS OF AN UNLAWFUL STOP FOR WHICH THE TAINT OF THE POLICE MISCONDUCT HAD NOT SUFFICIENTLY BEEN ATTENUATED.

A. Because The Investigatory Stop Was Unlawful, The Evidence Seized Must Be Suppressed As Fruit Of The Poisonous Tree.

B. When Applying The Doctrine Of Attenuation, The Facts Do Not Suggest That The Taint Of The Police Misconduct Dissipated When The Evidence Was Discovered.

II. THE SENTENCING JUDGE SHOULD HAVE MERGED THE DISTRIBUTION CONVICTION WITH THE CONVICTION FOR DISTRIBUTION WITHIN 1000 FEET OF A SCHOOL ZONE.

In a supplemental pro se brief, defendant presents an additional contention, namely, that a motion for reconsideration is not cognizable in a criminal court and therefore the judge erred by entertaining the State's motion.

II.

Before analyzing defendant's argument that the judge misapplied the attenuation doctrine and wrongly denied his motion to suppress, we consider the threshold question of whether the initial stop of defendant by Detective Brown and members of his team was lawful. The New Jersey Supreme Court has identified three different types of police encounters with citizens. "A field inquiry is the least intrusive encounter, and occurs when a police officer approaches an individual and asks if the person is willing to answer some questions. A field inquiry is permissible so long as the questions are not harassing, overbearing or accusatory in nature." State v. Pineiro, 181 N.J. 13, 20 (2004) (internal quotation marks and citations omitted). "The person approached, however, need not answer any question put to him; indeed he may decline to listen to the questions at all and may go on his way." Ibid. (internal quotation marks and citation omitted).

The next type of police-citizen encounter is an investigatory detention, frequently known as a Terry stop. See Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 903 (1968). A Terry investigatory stop is valid only "if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. . . . The suspicion need not rise to the probable cause necessary to justify an arrest." Pineiro, supra, 181 N.J. at 20 (internal quotation marks and citation omitted). "An encounter [has become] more than a mere field inquiry when an objectively reasonable person feels that his or her right to move has been restricted." State v. Rodriguez, 172 N.J. 117, 126 (2002). The third type of police-citizen encounter is an arrest, which must be supported by probable cause. Pineiro, supra, 181 N.J. at 21.

Here, because Detective Brown expressly told defendant he was not free to leave, what began as a mere field inquiry unquestionably escalated into a Terry stop, which required "specific and articulable facts giving rise to a reasonable suspicion of criminal activity." Id. at 20.

Because "the right to ignore police questioning has become a part of our constitutional fabric and would become unraveled if its exercise were used to justify a Terry stop," State v. Richards, 351 N.J. Super. 289, 305 (App. Div. 2002), defendant's refusal to provide his name when asked by Detective Brown did not provide an objective, articulable and reasonable basis to justify the stop of defendant. The fact that defendant and Gardner walked in opposite directions when they exited the apartment building was innocuous behavior which, even when combined with defendant's refusal to answer Brown's question, could not, in light of Richards, justify the stop of defendant. Although the police had knowledge that an individual living in that building was wanted on an outstanding warrant, the police had no reason to believe defendant was that person. The police did not learn of defendant's outstanding parole warrant until after the stop of defendant had already occurred. Based on the totality of the circumstances, the police did not have reasonable suspicion that defendant was either engaged in criminal activity or wanted on an outstanding warrant at the time they ordered defendant to stop. Consequently, we affirm the judge's conclusion that the stop of defendant was unlawful.

Therefore, unless the search of defendant can be justified on other grounds, evidence of the heroin found on defendant's person would be inadmissible at trial, as it was the result of the unlawful seizure of defendant's person. State v. Badessa, 185 N.J. 303, 311 (2005) (holding that the "fruits" of an illegal search must be suppressed, and citing Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963) for that proposition). The purpose of the exclusionary rule is to "deter the police from engaging in constitutional violations by denying the prosecution any profit from illicitly-obtained evidence." State v. Williams, 192 N.J. 1, 14 (2007). "Suppressing evidence sends the strongest possible message that constitutional misconduct will not be tolerated and therefore is intended to encourage fidelity to the law." Ibid.

III.

In Point I.B, defendant argues that the judge's reliance on the attenuation doctrine was error. "'[T]he exclusionary rule will not apply when the connection between the unconstitutional police action and the evidence becomes so attenuated as to dissipate the taint from the unlawful conduct.'" Id. at 15 (quoting Badessa, supra, 185 N.J. at 311). See also Wong Sun, supra, 371 U.S. at 487-88, 83 S. Ct. at 417, 9 L. Ed. 2d at 455. In other words, "[i]t is possible . . . for the causal chain between . . . unlawful [police activity] and evidence discovered afterward to be broken." State v. Chapman, 332 N.J. Super. 452, 467-68 (App. Div. 2000), certif. dism'd, 167 N.J. 624 (2001). Courts must determine whether law enforcement officials "have obtained the evidence by means that are sufficiently independent to dissipate the taint of their illegal conduct." State v. Johnson, 118 N.J. 639, 653 (1990) (citing Brown, supra, 422 U.S. at 603, 95 S. Ct. at 2261, 45 L. Ed. 2d at 427). In making this determination, three factors are considered: "(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." Johnson, supra, 118 N.J. at 653; accord, Brown, supra, 422 U.S. at 603-04, 95 S. Ct. at 2261-62, 45 L. Ed. 2d at 427.

We turn now to an analysis of the judge's application of the three-prong Brown/Johnson test. As for the first factor, "the temporal proximity between the illegal conduct and the challenged evidence," Johnson, supra, 118 N.J. at 653, the judge found this factor in favor of the State. He explained, "[a]ll of this happened within five, say seven minutes . . . . [I]t's not a situation where they have two hours in between." As is evident, the judge erroneously believed that the shorter the period of time between the illegal stop and the eventual arrest or search, the more this factor favors the State. If the time factor between the illegal stop and the intervening event is short, this factor will favor a defendant. United States v. Green, 111 F.3d 515, 521 (7th Cir.) (holding that only "five minutes elapsed . . . weighs against finding the search attenuated"), cert. denied, 522 U.S. 973, 118 S. Ct. 427, 139 L. Ed. 2d 328 (1997). Unquestionably, such a short period of time, five to seven minutes, elapsed between the illegal stop and the intervening event that this factor, contrary to the judge's conclusion, clearly favors defendant.

We turn to the second Johnson factor to evaluate the "presence of intervening circumstances." Johnson, supra, 118 N.J. at 653. No New Jersey published decision has addressed the question of whether an arrest on an outstanding parole warrant is an intervening event that dissipates the taint of an unlawful stop. The federal courts that have applied the attenuation doctrine have reached the conclusion that the discovery of an outstanding warrant during an unlawful stop is an "intervening circumstance." Green, supra, 111 F.3d at 521. See also United States v. Simpson, 439 F.3d 490, 495 (8th Cir. 2006); United States v. Hudson, 405 F.3d 425, 440 (6th Cir. 2005); United States v. Johnson, 383 F.3d 538, 546 (7th Cir. 2004).

Several state courts have also reached the conclusion that an arrest of the suspect on an outstanding parole warrant is an "intervening act" that can attenuate the taint of an illegal stop. See People v. Brendlin, 195 P.3d 1074, 1080 (Cal. 2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2008, 173 L. Ed. 2d 1103 (2009); State v. Frierson, 926 So. 2d 1139, 1144 (Fla.), cert. denied, 549 U.S. 1082, 127 S. Ct. 134, 166 L. Ed. 2d 570 (2006); State v. Hill, 725 So. 2d 1282, 1285 (La. 1998). Unquestionably, the arrest, and ensuing search, of defendant were conducted pursuant to the outstanding parole warrant, and were not based on any evidence gleaned from the initial unlawful detention. Thus, the second factor, the intervening event, which is the most important factor for the trial court to consider, Williams, supra, 192 N.J. at 16, favors the State.

The third factor the trial court must consider in conducting a Johnson analysis, is the purpose and flagrancy of the police misconduct. Johnson, supra, 118 N.J. at 653. The judge must evaluate if the police acted in good faith, Williams, supra, 192 N.J. at 16, or whether there were "wholesale violations of [a] defendant's rights," such as an unlawful detention, failure to administer Miranda1 warnings, or violations of the defendant's right to remain silent and right to counsel, Johnson, supra, 118 N.J. at 658, because deterring police misconduct is the very purpose of the exclusionary rule, Williams, supra, 192 N.J. at 14. In concluding that the taint of the police conduct was dissipated by the discovery of the outstanding arrest warrant, the judge remarked that flagrant misconduct is conduct "so egregious that a resulting attenuation of the taint would not work where it's so outrageous and so egregious." The judge followed this somewhat circular remark with an observation that the present circumstances constituted a far less serious violation of a defendant's constitutional rights than a situation where "police tackled him, threw him on the ground, ran his pockets, found drugs, and then asked questions about who he was."

While it is true that the police did not tackle defendant, throw him to the ground, or engage in any other physically aggressive conduct, the fact remains that without knowing defendant was a parolee, or wanted on an outstanding warrant, the officers stopped him illegally to conduct what defendant correctly describes as a "fishing expedition." It is clear from the record that at the time Detective Brown and his team detained defendant, they did not know him, knew nothing of his history, and had no reason to believe he had ever been involved in criminal activity, but detained him nonetheless. This unlawful detention was not an inadvertent error, but was instead a purposeful decision not grounded in any particularized suspicion. We therefore reject the judge's conclusion that this factor favored the State.

In addition to misapplying the first and third prongs of the attenuation doctrine, the trial judge erroneously applied other factors not countenanced by the attenuation doctrine. Specifically, the judge looked to defendant's "diminished expectation of privacy by virtue of [his] status . . . as a parolee." As defendant correctly argues, "[t]his 'diminished expectation of privacy' is a factor to consider when determining the validity of a search," see Samson v. California, 547 U.S. 843, 850, 126 S. Ct. 2193, 2198, 165 L. Ed. 2d 250, 268 (2006), but has no bearing on whether the taint of an invalid search has been dissipated or attenuated.

Here, as a condition of his parole, defendant agreed to submit to a search "conducted by a parole officer at any time the assigned parole officer has a reasonable articulable basis to believe that the search will produce contraband or evidence" (emphasis added). As the judge noted, and as we have agreed, the investigatory stop was invalid because the police did not have reasonable and articulable suspicion. Thus, any diminished expectation of privacy that defendant had as a parolee was inapplicable here because: the parole conditions defendant signed only subjected him to a search supported by a reasonable and articulable basis to believe he was in possession of contraband, and there was no such basis here; and, from a conceptual prospective, defendant's status as a parolee has no bearing on the attenuation analysis.

We therefore conclude that the judge's decision, which we review de novo, State v. Ugrovics, 410 N.J. Super. 482, 487-88 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010), was flawed. The judge misapplied two of the three Johnson factors and applied an additional factor which, as we have noted, has no place in determining whether the initial taint was dissipated. We therefore reverse the denial of defendant's motion to suppress.

We turn now to the remedy. As defendant concedes, the judge was correct when he observed that the police were required to arrest him on the outstanding parole warrant. Even though the officers were required to arrest defendant once they discovered that warrant, the fruits of the search incident to arrest must be suppressed because the police initially stopped defendant in violation of his constitutional rights, and the taint of that improper stop was not dissipated by the attenuation doctrine. Accordingly, although defendant may be prosecuted for the matter in which there was an outstanding warrant, the fruits of the search that occurred as the result of that valid arrest must be suppressed. See Badessa, supra, 185 N.J. at 311.

In light of our disposition of this appeal, we need not reach the sentencing argument advanced in Point II of defense counsel's brief, or the argument concerning reconsideration motions that defendant presents in his supplemental pro se brief.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)