STATE OF NEW JERSEY v. DAVINE J. RICE

NOT FOR PUBLICATION WITHOUT THE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-5495-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DAVINE J. RICE, a/k/a
LATEEF J. HICKS, MILL RICE,

        Defendant-Appellant.


              Submitted November 29, 2017 – Decided January 30, 2018

              Before Judges Alvarez and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              15-03-0732.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Michael Denny, Assistant Deputy
              Public Defender, of counsel and on the
              briefs).

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Sarah D. Brigham,
              Deputy Attorney General, of counsel and on the
              brief).

PER CURIAM
     Defendant Davine J. Rice appeals the denial of his motion to

suppress evidence, after which he entered a guilty plea to second-

degree   certain   persons   not       to     have   weapons,     
N.J.S.A.

2C:39-7(b)(1), count twelve of an Atlantic County indictment.1             On

July 15, 2016, defendant was sentenced to five years imprisonment,

subject to a five-year term of parole ineligibility.            See ibid.

     At the suppression hearing, the State presented one witness —

Atlantic City Police Officer Ermindo Marsini.          He testified that

on January 2, 2015, at 12:51 p.m., he and a partner were patrolling

a section of the city that he characterized as "one of the most

violent areas . . . ."   Marsini and his partner were in uniform

and riding in a marked patrol car.          They saw two men and a woman

walking down the sidewalk.   Marsini's attention was drawn to "the

way their open hand was covering their waistband area[.]"                  He

described the men's hands as resting flat at the waist.          There was

no bulge at their waistbands.   When the men saw the officers, they

continued to walk quickly and went out of sight between two

buildings.   When the officers "pursue[d] them[,] . . . they

disregarded [the officers'] orders to stop and . . . [continued]


1
  The guilty plea was packaged with other charges not at issue in
this appeal:    an unrelated violation of probation, an amended
disorderly persons simple assault, 
N.J.S.A. 2C:12-1(a), and third-
degree drug distribution, 
N.J.S.A. 2C:35-5.       The recommended
sentence for the certain persons charge was the lengthiest term
of imprisonment.

                                   2                                A-5495-15T4
walk[ing.]"    The officers followed the men, believing them to be

"possibly in possession of a handgun."    Marsini said the men were

stopped for that reason.

      Marsini described the encounter as a Terry2 investigative stop

— "[W]e had reason to believe they were possibly in possession of

a handgun.    We ordered them to stop to investigate it.   They kept

going."   According to the officer, at the time of the stop, the

men were not free to go.    He stated unequivocally that he and his

partner were not conducting a field inquiry, they were conducting

an investigative stop.     Once the men were detained, they would be

directed to place their hands on their heads and submit to a pat-

down for safety reasons.

      When the officers caught up with the men, Marsini's partner

grabbed co-defendant Leon Valentine's arm.    The two struggled, and

Marsini's partner cried out "he's got a gun."      Marsini glimpsed

the handle of a gun in Valentine's waistband.          He held the

suspect's arms, and a firearm fell to the ground.    Other officers

had arrived by then, and they stopped defendant before he could

approach Valentine.   Marsini saw defendant being arrested, and saw

a second handgun and drugs removed from defendant's person.




2
    Terry v. Ohio, 
392 U.S. 1 (1968).

                                   3                         A-5495-15T4
     Defendant and Valentine filed motions to suppress.                            Only

defendant appeared at the hearing.

     Based    on    Marsini's   testimony,       the    judge       found   that   the

officers intended to perform an investigatory stop and subsequent

pat-down search.       The judge reasoned that, pursuant to State v.

Crawley,     
187 N.J.   440,     460      (2006),     the        issue    of    the

constitutionality of the stop was moot so long as the police were

lawfully performing an official function.               He also cited to State

v. Williams, 
192 N.J. 1, 11 (2007), for the proposition that a

citizen has no right to take flight or otherwise obstruct officers

in the performance of their duty.               He determined that once the

officers, whether justified or not, ordered the defendants to

stop, and the order was disregarded, defendants' conduct "provided

the officers probable cause to arrest them for obstruction."

     The judge concluded that the seizure of the evidence was

"sufficiently      attenuated     from    the   taint    of     a    constitutional

violation" and was thus admissible.             He opined that of the three

factors to be considered in making the determination, the second

and third outweighed the first, the only factor which favored the

defendants.        The three factors were:             the temporal proximity

between police conduct and the challenged evidence, the presence

of intervening circumstances, and the flagrancy and purpose of the

police misconduct.      The judge found defendant's action in ignoring

                                         4                                    A-5495-15T4
the order to stop and continuing to "retreat from the officers,

as well as Valentine's physical resistance" were intervening acts

that attenuated the seizure of the evidence from the Terry stop.

He further found that the officers were acting in good faith while

trying to perform their official duty.   Accordingly, even if the

investigatory stop was unconstitutional, he viewed the seizure of

the evidence as attenuated from the initial stop because defendants

obstructed the officers in the performance of their duty.       Thus

the judge held that the evidence should not be suppressed as the

search of each defendant was justified incident to their arrest

for violating 
N.J.S.A. 2C:29-1.

                                  I.

     On appeal, defendant raises the following point:

          POINT I

          THE TRIAL COURT ERRED BY FAILING TO RULE ON
          THE CONSTITUTIONALITY OF THE STOP AND BY
          ERRONEOUSLY   CONCLUDING  THAT   THERE  WAS
          SUFFICIENT ATTENUATION BETWEEN THE STOP AND
          THE RECOVERY OF THE EVIDENCE TO AVOID
          SUPPRESSION

          A.   Failure to Comply With Command To Stop
               Does Not Automatically Render Evidence
               Discovered      Due      To      Initial
               Unconstitutional Seizure Admissible

          B.   The   Police   Lacked     the    Requisite
               Constitutional   Basis    To    Stop   the
               Defendant



                                  5                         A-5495-15T4
            C.   The Defendant Continuing To Walk Away
                 From the Police Does Not Attenuate the
                 Tainted Stop

     On    appeal,   we    review    a    trial     court's    findings    of   fact

deferentially.       State v. Elders, 
192 N.J. 224, 244 (2007) ("a

trial court's findings should be disturbed only if they are so

clearly    mistaken       'that     the       interests   of     justice     demand

intervention and correction.'") (quoting State v. Johnson, 
42 N.J.
 146, 162 (1964)).          The judge's factual findings will not be

disturbed in this case.

     Where we part company with the trial judge is on the question

of attenuation.       Our review of the trial judge's application of

the law to established facts is plenary.                  State v. Gandhi, 
201 N.J. 161, 176 (2010) (on appellate review, the reviewing court is

not deferential to, or bound by, the legal conclusions of a trial

court).

     The seizure of the evidence was not attenuated from the

initial    unconstitutional        stop;      the   motion     should   have    been

granted.   The Supreme Court has defined a field inquiry as "the least

intrusive" form of police encounter, occurring "when a police officer

approaches an individual and asks 'if [the person] is willing to

answer some questions.'"          State v. Pineiro, 
181 N.J. 13, 20 (2004)

(alteration in original) (quoting State v. Nishina, 
175 N.J. 502, 510

(2003)).    "A field inquiry is permissible so long as the questions


                                          6                                 A-5495-15T4
'[are] not harassing, overbearing, or accusatory in nature.'"    Ibid.

(alteration in original) (quoting Nishina, 
175 N.J. at 510).    During

such an inquiry, "the individual approached '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.'"      State v. Privott, 
203 N.J. 16, 24

(2010) (quoting State v. Maryland, 
167 N.J. 471, 483 (2001)).

     In contrast to a field inquiry, an investigatory stop, also

known as a Terry stop, is characterized by a detention in which the

person approached by a police officer would not reasonably feel free

to leave, even though the encounter falls short of a formal arrest.

State v. Stovall, 
170 N.J. 346, 355-56 (2002); see also Terry, 
392 U.S.  at 19.   The Terry exception to the warrant requirement permits

a police officer to detain an individual for a brief period, if that

stop 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."    State v. Rodriguez, 
172 N.J. 117, 126 (2002) (quoting Terry, 
392 U.S. at 21).       Under this

well-established standard, "[a]n investigatory stop is valid only if

the officer has a 'particularized suspicion' based upon an objective

observation that the person stopped has been [engaged] or is about

to engage in criminal wrongdoing."    State v. Davis, 
104 N.J. 490, 504

(1986).

     The officers' observations of two men walking down the middle

of the street in the middle of the day in January awkwardly holding

                                  7                            A-5495-15T4
a hand to their side was an observation that justified a field

inquiry.     But the officers' suspicions were nothing more than a

hunch.     Therefore, the initial detention was improper.

     The doctrine of attenuation does not make admissible the

fruits of searches immediately flowing from improper detentions.

If that were so, the exception might well consume the rule.

     State v. Shaw, 
213 N.J. 398 (2012) is enlightening.                   In that

case, a fugitive special task force arrived at an apartment

building as defendant and another man were leaving.                  Id. at 401.

The officers stopped Shaw because, like "the subject of the arrest

warrant[,]" defendant was an African-American man.              Ibid.       He was

quickly determined not to be the fugitive police were seeking,

however, his name appeared on a separate parole violation list.

Id. at 401-02.        He was arrested, and drugs found on his person

were suppressed.       Id. at 402.

     The    opinion     reiterates     well-settled   law     that    "[p]eople,

generally, are free to go their way without interference from the

government.      That    is,   after   all,   the   essence    of    the    Fourth

Amendment —— the police may not randomly stop and detain persons

without particularized suspicion."            Id. at 409.     Law enforcement

personnel can lawfully conduct field inquiries, but a citizen can

decline to stop or talk and is free to go on his way.                 Id. at 410

(citing Florida v. Royer, 
460 U.S. 491, 498 (1983)).                 The opinion

                                        8                                  A-5495-15T4
turned on application of the attenuation doctrine enunciated in

Brown v. Illinois, 
422 U.S. 590, 604-05 (1975).                  Id. at 414-16.

     The first question is the "temporal proximity between the

unconstitutional detention and the discovery of the [contraband]

. . . ."      Id. at 416.       When the time is brief between the

unconstitutional    detention    and       seizure    of   the    contraband,    it

generally favors the defendant.            Ibid.

     The   second     factor     is     the        presence      of   intervening

circumstances, such as the discovery of the parole warrant in

Shaw, id. at 417-20, or the failure to stop here that resulted in

defendant being charged with obstruction.               An arrest warrant may

present an intervening circumstance only if incidental to the

reason for the unconstitutional detention.                 Id. at 418-19.       But

if the stop occurred because officers were randomly stopping many

in the hopes of arresting a few fugitives, then the attenuation

diminishes.   Ibid.

     The purpose of the stop must be separate and unrelated to the

reason for the arrest.      Id. at 419.            Additionally, as the Court

said, "the intervening circumstances and flagrancy factors can

become intertwined."     Ibid.        When that occurs, as it did here,

that factor weighs heavily in favor of the defendant.                  The point

of this stop was to pat down defendant and his companion.                     That



                                       9                                  A-5495-15T4
they attempted to flee from the officers is no distinction or

intervening circumstance at all.

     With regard to the third factor, the "purpose and flagrancy

of the official misconduct," the Court considered the stop in Shaw

to also weigh heavily towards defendant.   Id. at 421.    It was "[a]

random stop based on nothing more than a non-particularized racial

description."   Ibid.   Certainly there, the officers had, as the

Law Division observed, no malice towards defendant and appeared

to be merely doing their job.   That is a different conclusion than

the one required with regard to whether the officers acted in good

faith within the meaning of the Fourth Amendment.        They did not

in Shaw or this case.   Based on nothing more than a hunch — even

if a hunch not based on any ill-will — they detained men walking

down the street who did not appear to be engaged in criminal

activity, but only holding their hands at their waist in a manner

the officers found suspicious.       That third factor here favors

defendant.

     Even if we take into account Marsini's statement that the men

were in one of the most violent areas of the City, that does not

elevate the hunch to something more.     The evidence seized by the

officers was the "product of the 'exploitation of [the primary]

illegality' — the wrongful detention" and thus should have been



                                10                            A-5495-15T4
suppressed.   Id. at 413 (alteration in original) (citing Wong Sun

v. United States, 
371 U.S. 471, 488 (1963)).

    Reversed.




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