STATE OF NEW JERSEY v. DONTA L. JOHNSON

NOT FOR PUBLICATION WITHOUT THE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-2437-20

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DONTA L. JOHNSON,

     Defendant-Appellant.
_______________________

                   Submitted March 7, 2022 – Decided March 16, 2022

                   Before Judges Sabatino and Rothstadt.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 19-09-2166.

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

                   Grace C. MacAulay, Acting Camden County
                   Prosecutor, attorney for respondent (Natalie A. Schmid
                   Drummond, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).


PER CURIAM
      This appeal from a conviction of a weapons offense solely involves search

and seizure issues. Defendant, Donta L. Johnson, appeals the trial court's denial

of his motion to suppress a gun seized without a warrant. Defendant had

dropped the gun in the course of being chased by a police officer after two

officers stopped him and a codefendant on a public sidewalk.

      Although the trial court found the initial stop was unconstitutional, it

concluded the officer's pursuit of defendant, who ran after being commanded to

remain in place, was attenuated from the illegal stop. We remand this matter for

additional consideration and findings by the trial court concerning the

attenuation issue. Specifically, the trial court on remand shall expressly address

and weigh each of the three attenuation factors prescribed by case law.

      The following sequence of events is reflected in the record, which includes

testimony at the suppression hearing as well as police body-cam recordings that

were presented to the motion judge. 1

      On the afternoon of January 24, 2019, the Camden County Police

Department received an anonymous tip that a male dressed all in black was



1
  We have reviewed the body-cam footage as part of our appellate review, giving
due deference to the motion judge's interpretation of the footage and the
evidence as a whole. State v. S.S.,  229 N.J. 360, 379-81 (2017).
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selling or using drugs from a location in a Camden neighborhood. No further

description of the drug dealer was provided by the tipster.

      An hour after receiving the tip, two police officers went to the location, a

blighted residential street, but saw no drug dealing or using occurring. The

police saw two groups of people. One group consisted of a group of about ten

people. The other group consisted of defendant, who was dressed in all black

clothing, and codefendant Shykill Young, who was dressed in all black except

for a red hoodie. As the police approached, defendant and Young walked in the

other direction, away from view.

      About a half hour later, the two officers again saw defendant and Young

walking down the same street. This time, the officers arranged to have a third

officer park his car nearby to enable him to catch the two men if they fled. The

two officers got out of their marked car and approached defendant and Young

on the public sidewalk. One officer instructed defendant to take his hands out

of his pockets and stand against a house's stairway. Defendant took his hands

out of his pockets and then immediately ran away.

      During the foot chase of defendant, an officer heard a "bang" of a metal

object. That police officer chased defendant into a nearby alley. When he

caught up with him, defendant had apparently fallen, and the officer handcuffed


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him. The officer went back to the spot where he heard the bang and recovered

an apparently discarded gun. The other officer also searched Young, who had

stayed in front of the house where he and defendant were initially stopped. That

officer found on Young a gun, bags of heroin, and other drugs.

      After defendant and Young were charged with various offenses, they

moved to suppress the contraband seized without a warrant.            The judge

conducted an evidentiary hearing at which two of the officers testified. No

defense witnesses testified.

      The court issued a written opinion on February 12, 2020 suppressing all

the evidence against Young but denying the motion as to the evidence against

defendant.

      The court reasoned that under Terry v. Ohio,  392 U.S. 1 (1968), the police

initially lacked reasonable suspicion to conduct an investigatory stop of either

defendant.   The court noted the tipster’s report was not confirmed.         The

description of a male dressed in black was generic. Moreover, Young’s hoodie

was red, not black. The tipster also reported only one man was selling or using

drugs, yet defendant and Young were seen together by the officers at each time.

The court found it insignificant that defendant and his codefendant had initially

walked away from police earlier. The court noted the area was not considered


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a high crime area, although the written opinion later makes a contradictory

finding when discussing defendant.

      The court upheld the officer's second stop of defendant that took place in

the alley, because defendant had disobeyed the police command to stand by the

stairway and instead ran away. On this point, the judge relied on the Supreme

Court’s opinions in State v. Williams,  192 N.J. 1 (2007) ("Williams I") and State

v. Crawley,  187 N.J. 440, 458 (2006), which held that a defendant who disobeys

a police officer’s command to stop, even if that command is unlawful, can still

be guilty of obstruction of justice. The court rejected defendant’s argument that

his flight, which was close in time, was not attenuated from the unconstitutional

Terry stop. The judge also found the gun had been discovered by police in a

public area in plain view, and the search of defendant's person was incident to a

lawful arrest.

      After losing the suppression motion, defendant entered into a plea

agreement to plead guilty to a gun possession count,  N.J.S.A. 2C:39-5(b)(1),

with the State dismissing other counts against him for eluding and other

offenses. By order of the Assignment Judge, the court approved a Graves Act

sentencing downgrade, pursuant to N.J.S.A. 2C:43–6(c). Consequently, the trial

judge sentenced defendant to a five-year term subject to a one-year mandatory


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parole disqualifier. Pursuant to Rule 3:5-7(d), defendant's right to appeal the

suppression ruling was preserved.

       On appeal, defendant's brief argues the following point:

             POINT I

             THE    MOTION    COURT’S    DENIAL   OF
             DEFENDANT’S SUPPRESSION MOTION MUST BE
             REVERSED BECAUSE DEFENDANT’S ACTIONS
             FOLLOWING AN ILLEGAL INVESTIGATORY
             STOP DID NOT ATTENUATE THE TAINTED STOP.

       Upon due consideration of this argument, the existing record, the trial

court's written opinion, and the applicable law, we remand the matter for further

consideration of the attenuation issue. We do so because the trial court's opinion

did not fully analyze the multi-factor legal test for attenuation prescribed by case

law.

       It is well established that the exclusionary rule bars the State from entering

the "fruit of the poisonous tree" into evidence, keeping out any evidence

obtained from an unconstitutional search or seizure. Wong Sun v. United States,

 371 U.S. 471, 485-88 (1963); State v. Shaw,  213 N.J. 398, 412-13 (2012).

Exclusion does not turn on whether the illegal search or seizure was a "but -for"

cause of the State obtaining the evidence a defendant seeks to be suppressed.

Shaw,  213 N.J. at 413.       Rather, courts hearing suppression motions must


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determine whether the evidence "was a product of the 'exploitation of [the

primary] illegality'—the wrongful detention—or of 'means sufficiently

distinguishable to be purged of the primary taint.'" Ibid. (quoting Wong Sun,

 371 U.S. at 488).

      Hence, the exclusionary rule applies not only to evidence obtained "as a

primary result of warrantless conduct, but as a consequence of it" as well. State

v. Atwood,  232 N.J. 433, 449 (2018) (quoting State v. Holland,  176 N.J. 344,

353 (2003)). "During an illegal search, for example, the police might acquire

information that leads to other evidence useful to prosecutors.        Under that

circumstance, the later-derived evidence might be suppressed or excluded as

'fruit of the poisonous tree.'" Ibid. (quoting Holland,  176 N.J. at 353).

      In the present case, the trial court correctly determined that the police

officers' initial stop of defendant and Young on the sidewalk was

unconstitutional. As the court found, the officers lacked a reasonable suspicio n

that the two men had engaged in criminal activity. The court explained at length

in its opinion why the information conveyed to and observed by the officers was

inadequate to provide a reasonable basis to suspect that either defendant or

Young recently had been selling or using drugs at the location reported by the

anonymous tipster. See State v. Rodriguez,  172 N.J. 117, 126 (2002) (requiring


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"specific and articulable facts" to support reasonable suspicion to justify a

warrantless Terry stop).

      Among other things, the tipster's vague and generic description of a single

male dressed all in black selling drugs did not correspond with these two men,

one of whom was wearing a red hoodie. The officers went to the location, more

than an hour after the tip, and they saw no drug activity occurring. The mere

fact that defendants walked away when the police drove by that location is not

in itself indicative of criminality. State v. Ruiz,  286 N.J. Super. 155, 163 (App.

Div. 1995) (noting such movement "signifies nothing more than behavior in

fulfillment of a wish to be [] somewhere else").

      Given these facts, the court's finding that the police illegally stopped

defendant and Young on the sidewalk is consistent with the Supreme Court's

recent opinion in State v. Nyema, __ N.J. __, __ (2022), which invalidated a

warrantless stop of defendants based upon a vague description of their race and

gender and their proximity to the scene of a recent robbery. Indeed, the State

has not cross-appealed the trial court's determination of an illegal stop.

      The State argued, and the trial court agreed, that defendant's flight after

he was told by police to remain in place sufficiently attenuated the illegal stop

from the evidence the police obtained after he fled. Our courts use a three-prong


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analysis for determining if evidence is sufficiently attenuated from an

unconstitutional stop to be admissible, including these factors: "(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." State v. Johnson,  118 N.J. 639, 653 (1990) (citing Brown

v. Illinois,  422 U.S. 590, 603-04 (1975)).

      The trial court's written opinion did not address these three attenuation

factors. Instead, the court appears to have adopted a per se approach, concluding

that defendant's disobedience of a police command broke the chain of causation

and purged the taint of the illegal stop. However, that is not necessarily so.

      To be sure, as the trial court recognized, in Crawley and Williams I, the

Supreme Court held on the facts presented that a defendant's flight disobeying a

police command to stop can attenuate the illegality of the stop and allow the

State to charge such a defendant with obstruction of justice under  N.J.S.A.

2C:29-1. Here, the indictment against defendant did not charge obstruction, but

it did include a count for eluding law enforcement,  N.J.S.A. 2C:29-2(a). We

accept the State's argument, which the trial court adopted, that defendant could

be guilty of eluding if his flight was not attenuated from the illegal stop on the

sidewalk. However, our case law has not construed Crawley and Williams I to


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express a per se rule that any flight by a defendant after an illegal police

command to stop automatically requires the court to admit evidence derived

from the ensuing chase.

      In State v. Williams,  410 N.J. Super. 549 (App. Div. 2009) ("Williams

II"), a case not cited in the trial court's opinion, we clarified that, at times, a

defendant's disobedience of a police command to stop does not necessarily

attenuate the fruits of a search occurring after such a defendant flees.          In

Williams II, the defendant was arrested for obstruction, in violation of  N.J.S.A.

2C:29-1(a). Id. at 554. Police officers responded to a housing complex to

provide a police presence to quell what they perceived to be a looming threat of

retaliatory gun violence. Id. at 552. The defendant was riding his bicycle when

he came upon the officers and looked startled. Ibid. He immediately started

pedaling faster and turned away from them when he saw them. Id. at 553. Then

an officer commanded him to stop. Ibid. He stopped pedaling when he saw

more officers ahead of him, and the officer who ordered him to stop grabbed

him by the arm four or five seconds after the initial command. Ibid. While in

that officer's grasp, defendant threw a box containing drugs from his poc ket to

avoid detection. Ibid.




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      We ruled in Williams II that the officers lacked reasonable suspicion for

the stop. Id. at 558. In analyzing the second attenuation prong, we found that

"there were no significant intervening circumstances between the unlawful

police command to defendant to stop his bicycle and defendant's discard of the

box," id. at 563 (quoting Johnson,  118 N.J. at 653), despite the  N.J.S.A. 2C:29-

1(a) violation. We reasoned that Williams I was not factually on point because

in that case—and the cases upon which the Supreme Court relied in reaching

that decision—the defendant's flight was more violent or otherwise dangerous.

Ibid. In requiring suppression in Williams II, we deemed it important that the

"defendant did not force the officers to engage in a lengthy and dangerous

pursuit to apprehend him or engage in any act of physical aggression against

[the arresting officer]." Ibid.

      Because the trial court in this case strayed from Williams II and instead

used a per se approach to attenuation, we are constrained to remand for the court

to analyze the evidence derived from the pursuit of defendant using the three-

part test prescribed by case law. Specifically, the court should address and

weigh: (1) the immediacy of defendant's flight, as shown on the video; (2) the

presence of intervening circumstances; and (3) the flagrancy and purpose of the

alleged police misconduct.


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      In performing this analysis, the court should not rely on facts that it

already deemed inadequate to support reasonable suspicion for the initial stop.

We do not suggest any outcome, noting that either party may pursue appellate

review if aggrieved by the trial court's remand decision. The trial court shall

have the discretion to have the parties adduce additional testimony or proofs if

that will aid it in its attenuation analysis. 2

      We vacate the denial of suppression and remand for reconsideration. We

do not retain jurisdiction. Pending the outcome of the remand proceedin gs,

defendant's conviction and sentence shall remain undisturbed.




2
  We agree with defendant that the search-incident-to-arrest doctrine does not
authorize the seizure of the gun, which was not on defendant's person or near
him when he was arrested. State v. Eckel,  185 N.J. 523, 530 (2006) (quoting
Chimel v. California,  395 U.S. 752, 763 (1969)) (limiting the search-incident-
to-lawful-arrest exception to searches of the area "within [the] immediate
control" of the arrestee at the time of the arrest). Nor can the State on remand
rely on a theory that the gun was abandoned, as that theory has not been briefed
on appeal by the State. See Telebright Corp. v. Dir., Div. of Tax'n,  424 N.J.
Super. 384, 393 (App. Div. 2012) (treating such a failure to brief an argument
as a waiver).
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