STATE OF NEW JERSEY v. TROY FRIDAY

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0441-17T1
STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

TROY FRIDAY,

     Defendant-Respondent.
_____________________________

              Argued April 10, 2018 – Decided April 27, 2018

              Before Judges Reisner and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              16-08-1361.

              Monica do Outeiro, Assistant Prosecutor,
              argued the cause for appellant (Christopher
              J. Gramiccioni, Monmouth County Prosecutor,
              attorney; Monica do Outeiro, of counsel and
              on the brief).

              Michael   Denny,   Assistant   Deputy   Public
              Defender, argued the cause for respondent
              (Joseph E. Krakora, Public Defender, attorney;
              Michael Denny, of counsel and on the brief).

PER CURIAM

        By leave granted, the State appeals from an August 3, 2017

order, granting defendant Troy Friday's suppression motion.                        We
affirm substantially for the reasons stated by the motion judge

in her thirty-three page written opinion.          We add these comments.

      According to Tinton Falls Detective Wilson, the Ocean County

Prosecutor's     Office     (OCPO)   asked   the   Tinton   Falls      police

department to participate in a drug investigation, centered on two

adjacent rooms on the second floor of a Red Roof Inn (motel) in

Tinton Falls.    The OCPO investigation began on February 10, 2016.

According to a search warrant affidavit, which the judge described

in   her   opinion,   the   investigation    included   video   and     photo

surveillance.1

      Wilson testified that on February 12, 2016, the OCPO held a

briefing for the Tinton Falls detectives, who were expected to

assist in looking for three suspects who were staying at the motel.

Wilson testified that during the briefing, the OCPO detectives

only said they were looking for two black men and a black female,

with no more specific description of the suspects.



1
   We find no abuse of the judge's discretion in considering facts
drawn from the search warrant affidavit, which defendant set forth
in his pre-hearing brief. The State did not contest those facts
in its responding pre-hearing brief, and the judge could reasonably
treat the facts as uncontested. As set forth in Rule 3:5-7(c),
an evidentiary hearing is required on a suppression motion to
resolve material facts that are in dispute. If the State believed
that defendant's brief inaccurately described the contents of the
affidavit, it should have so stated, or produced the affidavit at
the hearing. However, even now, the State does not contest the
accuracy of defendant's description of the affidavit.

                                      2                               A-0441-17T1
     Wilson claimed that as he was knocking on the door of one of

the two adjacent motel rooms, which were on the west end of the

second-floor hallway, he saw defendant, a black man, walking toward

him from the east end of the hallway.     When defendant reached a

staircase in the middle of the hallway, he went down those stairs.

Wilson thought it was suspicious that defendant chose to walk down

the middle stair case after seeing a police officer, but he did

not clearly explain why he thought it was suspicious.        Wilson

claimed he had no idea what the suspects looked like, other than

their race.

     Wilson followed defendant into the motel parking lot, stopped

him, and took his driver's license.     Wilson then made defendant

wait while he called dispatch and checked the identification with

an OCPO detective on the scene.   The detective told Wilson to let

defendant go because he was not "involved in the investigation."

A minute or two later, dispatch called Wilson back and told him

there was an outstanding warrant for defendant on an unrelated

matter.   Wilson called another officer on the scene (the second

officer) to stop defendant again.

     The second officer testified that he saw Wilson standing

behind some bushes and told him to stop, but did not tell him he

was under arrest.   According to the officer, defendant ran away

but somehow reappeared in the same bushes a moment later.        The

                                  3                         A-0441-17T1
officer arrested defendant and, according to the officer, he found

a gun underneath an air conditioning unit in the bushes.

     Defendant moved to suppress the evidence of the gun, asserting

that Wilson had conducted an investigatory stop with no reasonable,

articulable suspicion that defendant was involved in criminal

activity.

     The motion judge "found . . . it incredible that during a

three-day investigation, . . . the Ocean County Prosecutor's Office

would not have . . . told [the Tinton Falls] officers what the

suspects looked like." She was skeptical that the OCPO would not

have described any "particular attributes, distinguishing marks

or features, of these suspects, such as skin tone, tattoos, hair

style, dreadlocks, etc."   She also reasoned that if the OCPO did

not pass on that information, but merely told the local police to

be on the lookout for black males, they were in effect authorizing

the suspicion-less stop of any black males at the motel.

     The judge further noted that, on the morning of February 12,

2106, the OCPO investigators knew that one of the male suspects

and the female suspect had already left the motel.   She concluded

that, based on the conduct of the police, "every black male

appearing at the Red Roof Inn or at least who had the misfortune

to appear on the second floor of the Red Roof Inn was subject to

being stopped by the police."

                                4                           A-0441-17T1
     The judge did not believe Wilson's testimony that he did not

pat defendant down for weapons.           She also concluded that when

Wilson then took defendant's driver's license and required him to

wait until Wilson showed the license to an OCPO detective, no

reasonable person in defendant's position would have believed that

he was free to leave.    See State v. Rosario, 
229 N.J. 263, 273-74

(2017).   The   judge    concluded       that    the   stop   constituted    an

investigative   detention,   unsupported          by   any    reasonable    and

articulable suspicion.

     Based in part on State v. Shaw, 
213 N.J. 398 (2012), the

judge further concluded that the State was not entitled to the

benefit of the attenuation doctrine.            She stated:

          On the facts of this case, this trial court
          finds . . . that the police stop is the type
          of purposeful or flagrant misconduct that
          weighs against the [warrant] serving as a
          determinative intervening circumstance. The
          police stop of defendant was a random stop of
          a person based simply on [his] race.

The judge also did not credit portions of the second officer's

testimony, including defendant's allegedly running around the

building and reappearing in the bushes.

     On this appeal, we defer to the trial court's findings so

long as they are supported by substantial credible evidence.                See

State v. S.S., 
229 N.J. 360, 379-81 (2017).              We must appreciate

that the trial court had the opportunity to observe the witnesses

                                     5                                A-0441-17T1
first-hand, to judge their credibility, and to get a feel for what

really occurred during this incident.     See State v. Elders, 
192 N.J. 224, 243-44 (2007); State v. Locurto, 
157 N.J. 463, 471

(1999).    The motion judge was plainly unconvinced by the police

testimony.    We find no basis to second-guess her evaluation.      In

fact, even on a reading of the cold record, there are parts of the

testimony that do not seem believable.

        The judge's factual conclusion, that defendant was stopped

because he was a black man, rather than for any other reason, is

supported by substantial credible evidence.    See State v. Minitee,


210 N.J. 307, 317 (2012).    Based on the facts as the judge found

them to be, her legal conclusions are correct.

       Given all of the surrounding circumstances, we agree with the

judge's conclusion that what occurred here was an investigatory

stop, based on race and unsupported by a reasonable, articulable

suspicion.    See Rosario, 
229 N.J. at 277; Shaw, 
213 N.J. at 411-

12.    Given the flagrancy of the violation, the discovery of the

warrant was not sufficiently attenuated from the improper stop to

justify denying the suppression motion.       See Shaw, 
213 N.J. at
 422.   Finally, we infer from the judge's decision that she did not

credit the second officer's testimony about defendant's alleged

flight after being told to stop.

       Affirmed.

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