STATE OF NEW JERSEY v. TYRESE BUTLER,

NOT FOR PUBLICATION WITHOUT THE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-2122-17T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

TYRESE BUTLER, a/k/a
JACQUAN BUTLER, JACQUAN
R. BUTLER, JAQUAN BUTLER,
TYRICE BUTLER, TYRICE L.
BUTLER, TYRICE R. BUTLER,
TYRECE BUTLER, and TYRESE
BUTLER,

     Defendant-Appellant.
_____________________________

                   Submitted December 9, 2019 – Decided September 16, 2020

                   Before Judges Ostrer and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 16-04-0305.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Alicia J. Hubbard, Assistant Deputy Public
                   Defender, of counsel and on the brief).
              Lyndsay V. Ruotolo, Acting Union County Prosecutor,
              attorney for respondent (Timothy M. Ortolani, Special
              Deputy Attorney General/Acting Assistant Prosecutor,
              of counsel and on the brief).

PER CURIAM

      Because defendant is short and the attempted burglar police sought was

said to be tall, defendant contends he was seized unlawfully, and the drugs he

possessed should have been suppressed. We are unconvinced. The totality of

circumstances determines if police have a reasonable and articulable suspicion

to conduct an investigative detention. A mismatched descriptor is just one

circumstance.     Its significance depends on how the remaining, matching

descriptors distinguish the perpetrator from the general population and how the

mismatch tends to exclude the defendant as a suspect. A court must also

consider the probability the victim made a mistake, or the suspect altered his

appearance.     And, the court must weigh circumstances, apart from the

description, tending to create reasonable and articulable suspicion. Viewing the

totality of such circumstances in this case, we conclude the police lawfully

seized defendant.

                                       I.

      One January morning in Elizabeth, a woman told a 911 dispatcher that a

tall black man wearing dark pants, a puffy jacket, and a hood, was trying to gain

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entry to her house. Informed of the report, two uniformed police officers in a

marked patrol car spotted defendant a short time later walking on the otherwise

empty street opposite the victim's house. A black male, defendant was wearing

dark pants, a black puffy jacket, and a hood. But, he is not tall.

         Before the officers exited their vehicle, defendant immediately ran off

while putting his hands in his pockets. Police then chased, and one officer

ordered him to stop and get on the ground. Defendant ignored the command and

as he ran he twice discarded what turned out to be packages of drugs. The

officers soon caught defendant. As he resisted, defendant tried again to empty

his pockets. Once police subdued defendant, they found more drugs under his

thigh.

         The victim told police that the man who tried to enter her house was taller

than defendant. Police did not charge defendant with the attempted burglary,

but they did charge him with multiple drug-related crimes and resisting arrest.

         After indictment, defendant moved to suppress the drugs the police seized.

At the suppression hearing, an arresting officer — the sole witness — recounted

the facts we have described. He said he pursued defendant because "he matched

the description" of the attempted burglar. The officer acknowledged defendant

was not tall, as he stood in the courtroom. The officer recalled that defendant


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                                          3
was just ten feet away when the officers started to chase him, but "in that instant"

when defendant took off, the officer said he could not discern defendant's height.

      The officer did not expressly say that defendant began to run before police

ordered him to stop. He stated that once police noticed defendant, "immediately

we stopped and he began to run." Asked on cross-examination if he ordered

defendant to stop "as soon as [he] saw" defendant, the officer did not respond

directly, stating, "We got out of the car and he started running. . . . Well, he

actually started running before we got out of the car."

      The officer could not say how long it took to arrive on the victim's block.

Pressed, he said it was possible that five minutes elapsed. Notably, the victim

was still on the phone with the dispatcher when the police arrived .

      Defendant argued the stop was unreasonable because he did not match the

attempted burglar's reported height.

      The court denied the motion. The court acknowledged that the dispatcher

reported the suspect was tall, and defendant was not. Nonetheless, the court

found that the officers had reasonable suspicion to detain defendant.           The

circumstances supporting that finding were: he "match[ed]" the victim's

description of the suspect; he was just "a few homes away" from the victim's

house; no one else was on the street; and defendant started to run after he noticed


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                                         4
the police vehicle. 1 The judge found the seizure of the drugs was not unlawful

because the drugs were abandoned while defendant ran, and were lawfully

seized incident to a lawful arrest for drug possession and resisting.

      Defendant then pleaded guilty to possessing drugs with the intent to

distribute them in a school zone,  N.J.S.A. 2C:35-7. Consistent with his plea

agreement, the court sentenced him to a five-year term, with thirty months of

parole ineligibility.

      On appeal, defendant presents the following point for our consideration:

             EVEN THOUGH THEY WERE RESPONDING TO
             AN EARLIER CALL OF AN ATTEMPTED BREAK-
             IN BY A TALL BLACK MAN, WHEN POLICE SAW
             MR. BUTLER, A SHORT BLACK MAN, WALKING
             DOWN THE OTHER SIDE OF THE STREET, THEY
             ORDERED HIM TO STOP THEN CHASED HIM
             THROUGH THE RESIDENTIAL NEIGHBORHOOD.
             THAT MR. BUTLER WAS WEARING TYPICAL
             WINTER CLOTHES ON A WINTER DAY AND THE

1
   The judge did not clearly decide whether defendant ran before the officer
commanded him to stop. Recalling the officer's testimony, the judge wrote, "He
testified that police yelled for the person to stop and put his hands up. He
testified that the suspect began to run away and that he gave chase." Addressing
defendant's argument, the judge also wrote, "The officers tried to initiate a stop,
but the individual allegedly fled." Although these three sentences suggest a
finding that defendant ran after police commanded him to stop, the judge also
suggested a finding that defendant ran before the command to stop, writing that
"[a]fter noticing the police vehicle, the suspect immediately started to run," and
"when the individual saw the officers, and before the officers were able to detain
him, he immediately fled on foot."

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                                        5
            BREAK-IN SUSPECT WAS WEARING GENERIC
            WINTER CLOTHES AND WAS ALSO A BLACK
            MAN, DID NOT PROVIDE POLICE WITH
            REASONABLE SUSPICION THAT HE WAS
            INVOLVED IN ANY CRIME. THEREFORE, THE
            FRUITS OF THE ENCOUNTER MUST BE
            SUPPRESSED. U.S. CONST. AMENDS. IV AND
            XIV; N.J. CONST. ART. I, PAR. 7.

      Essentially, defendant contends the difference between his height and the

attempted burglar's was more significant that his match of other descriptors. 2

Defendant also highlights that the police did not recognize him from prior

encounters, nor did they observe him engage in unlawful or suspicious behavior.

                                        II.

      The following observations are not controversial. Police seized defendant

when they gave chase, commanding him to stop and get on the ground. See

State v. Tucker,  136 N.J. 158, 166 (1994) (although the record did not disclose

if police commanded defendant to stop running, foot-chase of defendant

constituted seizure, since "a reasonable person [would] believe that the police

wanted to capture him and not just . . . speak with him"). If the stop of defendant

was lawful, so was the seizure of the drugs defendant discarded as he ran. See



2
   Defendant argues on appeal that he is five-feet five-inches tall. But, he
introduced no competent evidence of his precise height at the suppression
hearing.
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                                        6
State v. Ramos,  282 N.J. Super. 19, 22-23 (App. Div. 1995) (denying

suppression of drugs discarded during lawful investigative stop); State v.

Farinich,  179 N.J. Super. 1, 6-7 (App. Div. 1981) (holding lawfully stopped

suspect abandoned suitcase when he dropped it and fled), aff'd o.b.,  89 N.J. 378

(1982); cf. Tucker,  136 N.J. at 172 (suppressing drugs discarded during unlawful

seizure of fleeing defendant).     And, as defendant's refusal to obey while

discarding various items created probable cause to arrest, see State v. Williams,

 192 N.J. 1, 11 (2007) (stating a person commits the crime of obstruction by

fleeing from an investigatory stop), the police were authorized to seize the drugs

under defendant's thigh, see State v. Pena-Flores,  198 N.J. 6, 19 (2009) (stating

that "[u]nder the search incident to arrest exception, the legal seizure of the

arrestee automatically justifies the warrantless search of his person and the area

within his immediate grasp"), overruled on other grounds, State v. Witt,  223 N.J.
 409, 450 (2015).

       The question is whether the stop was authorized. "[I]f police have a

reasonable suspicion, grounded in specific and articulable facts, that a person

they encounter was involved in or is wanted in connection with a completed

felony, then a Terry3 stop may be made to investigate that suspicion." United


3
    Terry v. Ohio,  392 U.S. 1 (1968).
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                                        7
States v. Hensley,  469 U.S. 221, 229 (1985). The police may rely on their

training and experience, and "rational inferences" from the facts before them.

See Terry,  392 U.S.  at 21; State v. Arthur,  149 N.J. 1, 8 (1997). "Reasonable

suspicion is less than proof . . . by a preponderance of evidence, and less

demanding than that for probable cause, but must be something greater than an

inchoate or unparticularized suspicion or hunch." State v. Barrow,  408 N.J.

Super. 509, 517 (App. Div. 2009) (internal quotation marks omitted) (citing

United States v. Sokolow,  490 U.S. 1, 7 (1989)). "[T]he bar is low, [but] it is a

bar nonetheless." State v. Atwood,  232 N.J. 433, 448 (2018).

      In determining whether reasonable and articulable suspicion supports an

investigative detention, a court must consider the "totality of the circumstances."

State v. Pineiro,  181 N.J. 13, 22 (2004). The "totality of the circumstances" may

justify an investigative detention although each fact, standing alone, would not .

Id. at 25. Also, an officer may rely on facts "'consistent with guilt,'" even if

"'purely innocent connotations can be ascribed'" to them. State v. Citarella,  154 N.J. 272, 279-80 (1998) (quoting State v. Arthur,  149 N.J. 1, 11 (1997)).

      An officer may generally assume a crime victim's veracity and reliability

in describing a suspect. See State v. Amelio,  197 N.J. 207, 212-13 (2008).

When a crime victim gives a reasonably detailed description of a criminal, police


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                                        8
will usually have a reasonable and articulable suspicion to stop a person who

matches the description. See, e.g. State ex rel. H.B.,  75 N.J. 243, 248 (1977)

(sustaining Terry frisk of person who matched anonymous tipster's "precisely

accurate" description of "black individual wearing a black hat, black leather coat

and checkered pants" in a particular restaurant); see also United States v. Brown,

 448 F.3d 239, 247 (3d Cir. 2006) (stating "[t]he fact that 'every detail provided

[in a description] matched the details observed by the officers' can contribute to

a finding of reasonable suspicion" (quoting United States v. Nelson,  284 F.3d 472, 483 (3d Cir. 2002))).

      However, police may not rely solely on a "generic description" that does

little to distinguish a suspect from the general population. See State v. Shaw,

 213 N.J. 398, 411, 421 (2012) (stating "[a] random stop based on nothing more

than a non-particularized racial description of the person sought is especially

subject to abuse"). See also Brown, 448 F.3d at 247-48; In re T.L.L.,  729 A.2d 334, 340 (D.C. 1999) (stating that description of two black teenagers, one with

a dark complexion and one with a medium complexion "could have fit many if

not most young black men" and was insufficient to justify investigative stop);

United States v. Turner,  699 A.2d 1125, 1128-29 (D.C. 1997) (stating that "a




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                                        9
description applicable to large numbers of people will not suffice to justify the

seizure of an individual").

      In this case, the clothing the victim described was not especially

distinctive for January, but the combination of a puffy jacket, as opposed to a

slim one, plus a hoody, and dark pants, did narrow the universe of possible

suspects. Identifying the attempted burglar's race and height further limited

possible suspects, although Elizabeth has a significant black population, and

"tall" is subject to interpretation.4   Yet, we need not decide whether the

description in this case adequately distinguished the perpetrator from the general

population, and provided reasonable and articulable suspicion to detain someone

who matched the description. Defendant did not perfectly match the victim's

description.

      "The fact that a part of the description does not fit is . . . obviously a

negative factor." Brown v. United States,  590 A.2d 1008, 1018 (D.C. 1991).

For example, the Third Circuit held police lacked reasonable suspicion to stop

two bearded black men, twenty-eight and thirty-one years old, when the suspects


4
    Almost twenty percent of Elizabeth's population is "Black or African
American alone." See U.S. Census Bureau, Quick Facts: Elizabeth, New Jersey,
https://www.census.gov/quickfacts/elizabethcitynewjersey. The record does
not say if the racial makeup of the victim's neighborhood varied from that, one
way or the other.
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                                        10
were said to be between fifteen and twenty, and the description did not mention

facial hair. Brown, 448 F.3d   at 248. Even if a partial match justifies a stop, an

officer may be obliged to terminate the stop once a mismatch appears. See

United States v. Bey,  911 F.3d 139, 146 (3d Cir. 2018) (holding it was

reasonable for officers to approach defendant from the back as his clothes

matched suspect's description, but they should have ceased the encounter once

they turned him around and realized his facial features and age were not a

match).

      But, "[n]ot every discrepancy is fatal." Brown, 590 A.2d   at 1018. "[A]n

imperfect match between a suspect and a description does not necessarily make

an officer's suspicion unreasonable." Torry v. City of Chicago,  932 F.3d 579,

588 (7th Cir. 2019). See also State v. Kyles,  607 A.2d 355, 368 (Conn. 1992)

(stating that "[t]he police . . . are not required to confirm every description of

the perpetrator that is broadcast over the radio"). As Professor LaFave has

observed, officers "must be allowed" to consider that the victim or witness got

a descriptive factor wrong, or that "a change of circumstances or efforts at

concealment" rendered the factor inapplicable. 4 LaFave, Search & Seizure §

9.5(h) (5th ed. 2019). "What must be taken into account is the strength of those

points of comparison which do match up and whether the nature of the


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                                       11
descriptive factors which do not match is such that an error as to them is not

improbable." 4 LaFave, Search & Seizure § 9.5(h) (5th ed. 2019).

      While a partial match may still arouse suspicion, a particular mismatch

may tend to exclude a person as a suspect more than the matching factors tend

to include him. One may imagine a suspect described as white, in blue jeans

and a hoody, medium height and build, with a large scar on his forehead. The

scar is the most distinctive characteristic. An officer would obviously have a

weaker basis to stop someone without the scar, than someone without the hoody.

Indeed, if the victim had not observed the perpetrator's face, the scar-less person

would be subject to greater suspicion than if the victim had.

      Considering the totality of circumstances, police must also be able to

consider factors apart from the imperfectly matched description that tend to

support or undermine reasonable suspicion. In State v. Privott,  203 N.J. 16, 21

(2010), police stopped a man who imperfectly matched a caller's description of

a man with a gun. Like the person described, he was tall, thin, dark-skinned and

wore a black and red cap. But, his jacket was red, not black as the caller

described. Notwithstanding that mismatched descriptor, the Court held the stop

was reasonable.     The Court noted the defendant "partially matched the

description given"; the officer knew the defendant had been arrested before and


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                                       12
was involved in gangs; and, as the officer approached, the defendant appeared

nervous, and began to walk away while moving one hand toward his waistband,

where weapons are commonly concealed. Id. at 28-29.

      In this case, we must consider the power of remaining, matching

descriptors to distinguish defendant from the general population; the power of

the height discrepancy to exclude defendant as a suspect; the possibility the

victim made a mistake about the mismatched descriptor; and circumstances apart

from the description tending to create reasonable and articulable suspicion. 5

      Defendant's matching clothing, race and sex were significant, if not

sufficient factors, to justify the investigative detention. As we have noted,

although each item of clothing was not especially distinctive, in combination

they served to distinguish defendant from others. The arresting officer testified

that he did not have a chance to determine if defendant was tall, before he started

running. So, from the officer's perspective, height was a non-factor, as opposed

to an excluding factor. The trial judge made no finding whether the officer was

credible on that point. But see United States v. Watson,  787 F.3d 101, 105 (2d

Cir. 2015) ("A material difference in . . . height is not something that takes a



5
  Since height is not easily hidden and changes very slowly, we do not consider
the possibility of concealment or a change of circumstances.
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                                       13
long time to process").     Yet, even assuming the officer noticed upon his

approach, or while in pursuit, that defendant was not tall, the victim may have

been mistaken in her description. A person may view another's height relative

to one's own. An assessment of height may be affected by one's angle or sight.

In any event, the general description that the perpetrator was tall was not so

distinctive that defendant's less-than-tall stature was enough to quell reasonable

suspicion.

      The totality of other circumstances engendered reasonable and articulable

suspicion that defendant was the attempted burglar.         Temporal and spatial

proximity both supported reasonable suspicion. See United States v. Goodrich,

 450 F.3d 552, 562 (3d Cir. 2006) (holding that "geographical and temporal

proximity . . . to the scene of the reported theft" supported reasonable suspicion);

State v. Reynolds,  124 N.J. 559, 569 (1991) (affirming finding that "defendant's

proximity to the crime in both time and space and that his similarity to the

general description of the suspect were sufficient to generate a reasonable

suspicion"). Defendant was found across the street from the victim's home. He

was the only person on the street in the middle of the morning. It may have

taken the officer five minutes to arrive. He said that was possible. But, the

victim was still on the phone with the dispatcher, indicating not much time had


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                                        14
passed. There was also no evidence that the attempted burglar was on the run,

which would have made it unlikely he would still be so close to the victim's

home after five minutes. The partial match, along with the temporal and spatial

proximity, established reasonable and articulable suspicion to conduct an

investigatory stop.

      Even if that were not enough, defendant also fled from the officers. If he

did so before the officers commanded him to stop, then such flight provided an

additional element, as part of the totality of circumstances, justifying the initial

command to stop. We recognize that "flight alone does not create reasonable

suspicion for a stop." State v. Dangerfield,  171 N.J. 446, 457 (2002). However,

it may support reasonable and articulable suspicion "in combination with other

circumstances." Pineiro,  181 N.J. at 26. Applying that principle, we held in

State v. Ruiz,  286 N.J. Super. 155, 163 (App. Div. 1995), that police had

reasonable and articulable suspicion to stop suspect based on his flight from

police and other factors.6


6
  One might argue that defendant's refusal to stop constituted an intervening act
of obstruction, authorizing police to arrest him for that offense and to seize
evidence incident thereto. See State v. Williams,  192 N.J. 1, 16 (2007) (stating
that "[c]ourts of this State have held that eluding the police and resisting arrest
in response to an unconstitutional stop . . . constitute intervening acts and that
evidence seized incident to those intervening criminal acts will not be subject to

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                                        15
      In sum, based on the totality of circumstances, police stopped defendant

lawfully, because they had reasonable and articulable suspicion that defendant

was the attempted burglar the victim described. The fact that the attempted

burglar was tall, and defendant was not, was not enough to quell the reasonable

and articulable suspicion that the other factors created. The trial court properly

denied defendant's motion to suppress.

      Affirmed.




suppression"); State v. Crawley,  187 N.J. 440, 458 (2006) (stating "a person has
no constitutional right to endanger the lives of the police . . . by fleeing or
resisting a stop, even though a judge may later determine the stop was
unsupported by reasonable and articulable suspicion"). However, as the State
does not rely on Williams and Crawley, we do not address the argument.
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                                       16