STATE OF NEW JERSEY v. KERRON K. TAYLOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KERRON K. TAYLOR, a/k/a

KARRON R. TAYLOR, KARRON

TAYLOR AND KERRON K. TAYLOY,

Defendant-Appellant.

____________________________

Telephonically Argued October 4, 2013 Decided October 25, 2013

Before Judges Fuentes, Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-01-0183.

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).

PER CURIAM

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:

POINT I

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 investigation and arrest for defendant's act of resisting arrest by flight. This appeal followed.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J.1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15). Additionally, we defer to a trial judge's findings that are "'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. We do not, however, defer to a trial judge's legal conclusions, which we review de novo. Ibid. We also review de novo mixed questions of law and fact. In re Malone, 381 N.J. Super.344, 349 (App. Div. 2005).

"[A]n investigatory stop is valid '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.'" Williams II, supra, 410 N.J. Super. at 555 (quoting State v. Williams (Williams I), 192 N.J. 1, 9 (2007)). "A suspicion of criminal activity will be found to be reasonable only if it is based on 'some objective manifestation that the person [detained] is, or is about to be engaged in criminal activity.'" Ibid. (alteration in original) (quoting State v. Pineiro, 181 N.J. 13, 22 (2004)). "In making this determination, a court must consider '[t]he totality of circumstances.'" Ibid. (quoting Pineiro, supra, 181 N.J. at 22).

"'[F]light alone does not create reasonable suspicion for a stop[.]'" Ibid. (quoting State v. Dangerfield, 171 N.J. 446, 457 (2002)). "However, flight "in combination with other circumstances . . . may support [the] reasonable and articulable suspicion' required to justify a stop." Ibid. (quoting Pineiro, supra, 181 N.J. at 26). Here, there were other circumstances beyond defendant's flight that supported the reasonable and articulable suspicion required to justify the investigatory stop. Unlike in Williams II, Trooper Jones articulated a basis for his belief that defendant had a weapon in his waistband, and the evidence confirms that the troopers had a reasonable concern for their safety when defendant reached for his waistband a second time. Based on the totality of circumstances, the troopers had the right to conduct a limited investigatory stop and in the process pat down defendant for their safety pursuant to Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968). The Terry pat down would have revealed that defendant was carrying an illegal loaded handgun.

Even assuming the initial stop was unconstitutional, defendant's flight, coupled with discarding the handgun in the troopers' presence and continuing to flee, purged any taint from the unconstitutional stop. A person must obey a police officer's commands to stop even if the stop is unlawful. State v. Crawley, 187 N.J. 440, 458-60, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006). Our Supreme Court has recently reiterated that

suspects must obey a police officer's commands during an investigatory stop, even if the stop is unlawful, and test the stop and detention later in court. It is well-settled that defendants have no right to resist arrest, elude or obstruct the police, or escape in response to an unconstitutional stop or detention. For compelling public safety reasons, the law requires that a defendant submit to an illegal detention and that he take his challenge to court. Even though the suspect may have done nothing wrong, he cannot be the judge of his own cause and take matters into his own hands and resist or take flight.

[State v. Herrerra, 211 N.J. 308, 334-35 (2012) (quoting Crawley, supra, 187 N.J. at 455) (internal quotation marks omitted).]

"[E]luding the police and resisting arrest in response to an unconstitutional stop or pat down constitute intervening acts and . . . evidence seized incident to those intervening criminal acts will not be subject to suppression." Williams I, supra, 192 N.J. at 16.

Contrary to defendant's assertion, there was no evidence that the troopers acted in bad faith; rather, the troopers acted in good faith based on their training and experience, which led them to believe that defendant had a weapon in his waistband. When the troopers identified themselves as State Police and ordered defendant to stop, defendant was obligated to comply. Defendant opted instead to run, discard the loaded handgun into a residential yard, and avoid apprehension by continuing to run. These intervening criminal acts purged the taint from the unconstitutional investigatory stop. See ibid. (holding that the presence of intervening criminal events is the most important factor in the significant attenuation analysis). Once the troopers saw defendant discard the gun and continue to run, they had probable cause to arrest him and charge him with unlawful possession of a weapon and resisting arrest.