NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1935-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRAZHON J. LEWER,
Defendant-Appellant. _______________________
Argued April 27, 2026 – Decided May 12, 2026
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 23-11-0811.
Zachary G. Markarian, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Zachary G. Markarian, of counsel and on the briefs).
Thomas M. Caroccia, Deputy Attorney General, argued the cause for respondent (Jennifer Davenport, Attorney General, attorney; Thomas M. Caroccia, of counsel and on the brief).
PER CURIAM Following the denial of his motion to suppress, defendant Brazhon J.
Lewer pled guilty to second-degree possession of a handgun by a certain person
not to have a weapon, N.J.S.A. 2C:39-7(b)(1), and was sentenced to eight years
in prison. Defendant appeals from the February 2, 2024 order denying his
motion and his resulting judgment of conviction. We affirm.
I.
Defendant moved to suppress a handgun seized from a search incident to
his arrest. The court conducted evidentiary hearings on January 29 and February
2, 2024, from which we discern the relevant facts.
At the January 29, 2024 hearing, Officer Fabrice Veloso, a detective in
the Hillside Police Department, testified to the events leading to defendant's
arrest on the evening of October 29, 2021. Veloso stated that at or around 9:39
p.m., while patrolling in a marked police vehicle with his partner, Officer
Amadeu Fernandes Dacruz, he received a call from radio dispatch relaying a 9-
1-1 call reporting "there [were] two black males attempting to gain access into
vehicles by flipping door handles" in a nearby convenience store parking lot.
He testified dispatch clarified that the call described the two individuals as two
A-1935-24 2 black males, "one [of whom] was wearing all black" including a black mask, but
provided no additional details about the other individual. 1
Officer Veloso testified that because the 9-1-1 caller followed the
individuals, the radio dispatch provided contemporaneous updates of where they
were headed, namely "that the two black males [were] proceeding . . . south"
through the parking lot of a neighboring business, then walking east on a nearby
street.2 After Veloso and his partner approached "the immediate area, . . . [they]
encountered . . . the 9-1-1 caller," who, as noted, had "followed the suspects
until he saw police response." He stated that the caller confirmed dispatch's
description of the entirety of the call and that the caller stated he "observed two
black males, one specifically wearing all black, attempting to gain access to
vehicles by flipping the door handles."
1 At the February 2 evidentiary hearing, the State played the initial radio dispatch, which stated "[c]aller states there's two black males that were trying door handles at one of the . . . convenience stores. . . . One is dressed in all black, wearing a black mask." The dispatch also conveys the direction and street on which the individuals were walking. 2 We note the audio recording of the dispatch and computer-aided dispatch (CAD) report both included in the record before us confirm Officer Veloso's testimony regarding dispatch's contemporaneous location updates.
A-1935-24 3 Officer Veloso then testified that while he was speaking to the caller,
Officer Treniece Avent, another nearby officer responding to the radio dispatch,
"tried to conduct a field stop on two males" who matched the description and
were walking in the direction and manner consistent with the dispatch's updates.
After receiving notice over radio that the two individuals "were running" from
Officer Avent, Officer Veloso explained he drove away from the convenience
store toward the street on which Officer Avent had initiated her stop, when he
quickly observed Officer Javier Rodriguez, another nearby officer, "running on
foot in the street" after one of the individuals. Officer Veloso testified, at that
point, he pursued the individual that Officer Rodriguez was chasing, "got out of
[his] vehicle, identified [him]sel[f], and told the suspect to stop running." After
a short foot pursuit over less than half a block, Officer Veloso stated he and
Officer Dacruz apprehended the individual in a residential area where no one
else "was walking around outdoors."
After apprehending the individual, now defendant before us, Officer
Veloso testified the responding officers arrested him and searched him incident
to the arrest where they found a "black Glock handgun." He stated the entire
encounter from when he received notice from the radio dispatch to defendant's
arrest took between "three to five minutes." On a map of the area around the
A-1935-24 4 convenience store provided by the State, Officer Veloso identified and marked
where the convenience store was located, where he observed Officer Rodriguez,
where he understood Officer Avent to have first interacted with the individuals,
and the area where defendant was arrested and searched. The entire interaction
occurred within a two-block radius of the convenience store. Officer Veloso
also explained he was extremely familiar with the area in which this encounter
occurred and stated there was no one else in the immediate area at the time of
the incident.
The State also introduced the body-worn camera (BWC) footage of
Officer Dacruz, which corroborated the testimony from Officer Veloso. 3
Specifically, the BWC footage confirmed his testimony that Officer Avent stated
the suspects were running, his short pursuit of defendant, as well as the
conversation with the 9-1-1 caller, in which the caller, who indicated he has
prior work experience in law enforcement, described the suspects and their
unsuccessful attempts to "pull on the door handles" of several "locked cars."
The State also used the BWC footage to refresh his memory that defendant at
the time of his arrest was wearing a "light-colored sweatshirt" and a mask. He
3 With respect to Officer Dacruz's BWC, we have considered the parties' post- argument supplemental submissions addressing the contents of the video footage. A-1935-24 5 also testified that Officer Avent's initial stop, which should have been recorded
by her BWC pursuant to their department's guidelines, was not.
After the conclusion of Officer Veloso's testimony, the court decided it
was necessary to continue the hearing because it had "an incomplete record, and
[could] not make an informed decision as to whether there [was] a basis for the
stop in this particular situation." The court stated there was, at the least, a field
stop and arrest, but it "need[ed] somebody from [the] scene" to give details such
as "whether it was completely a stop; whether [suspects] stopped to talk to [an
officer], and started to, and they ran; [and] whether [the officers] just got out of
their car and they ran."
At the subsequent February 2 hearing, the court heard testimony from
Officer Rodriguez then Officer Avent, as "officers who . . . actually observed
[defendant] and allegedly another individual," prior to the arrest. Officer
Rodriguez testified that around 9:40 p.m. on October 29, 2021, he responded to
the radio dispatch as "backup" for Officer Avent, who he understood had already
"initiated the actual stop" of the suspects. As he approached Officer Avent's
location in an unmarked vehicle, he observed the individuals were "running
already," at which point, he exited his vehicle and "commenced a foot pursuit."
He testified he chased "one of the males [wearing] a gray . . . hoodie with a face
A-1935-24 6 mask," and noticed the other individual, who was dressed in all black, "ran
behind [him]." As he ran, he noticed Officers Veloso and Dacruz and observed
they "were able to apprehend" the individual in the grey hoodie, but not the
individual dressed in all black. The court also played Officer Rodriguez's BWC
footage, which corroborated his testimony.
Officer Avent also testified and explained that she responded to the
original radio dispatch and observed two individuals matching the radio
dispatch's description walking away from the convenience store. She testified
the radio dispatch described the suspects as two black males, one of whom was
wearing all black. After having her memory refreshed with the CAD report from
the incident, she confirmed that the dispatch also noted the individual wearing
all black was reported wearing a black mask. 4
Acting on this information, Officer Avent testified she "drove around
looking in the area for the individuals that would fit the description" when she
observed two individuals, one of whom was dressed in all black and both
4 The CAD report describes the initial radio dispatch as conveying "[two] black males trying door handles in [the] parking lot of [the convenience store], . . . [one] male all black wearing black mask."
A-1935-24 7 wearing masks.5 She testified no one else was in the area. She stated she
attempted to initiate a "field inquiry" with the individuals but later testified her
initial interaction was likely an "investigatory stop." She further testified she
did, in fact, get out of the car and attempt to ask the individuals where they were
going but later clarified she "did not think [she] got out the car" and "probably
rolled down the window, and asked them a question, and then . . . [she] got out
the car, and that is when they started running."
Officer Avent acknowledged department and Attorney General policies
required her to activate her BWC for certain encounters with the public . She
testified she did not activate her camera until after the individuals began running
because "[e]verything happened so quick[ly]" over the course of only a few
minutes. Officer Avent also testified she participated in detaining a second
individual, after defendant was arrested, who was later released after not being
identified as a suspect. Her testimony was supplemented by the playback of her
5 Although the initial dispatch does not indicate whether defendant was wearing a mask, Officer Dacruz's BWC footage confirms defendant was, in fact, wearing a mask when he was apprehended. A-1935-24 8 BWC footage, which confirmed the sequence of events after the individuals had
already fled.6
After the officers' testimony, the State argued the motion to suppress
should be denied because Officer Avent "had more than reasonable suspicion at
that point to conduct an investigatory stop . . . ." It contended Officer Avent
observed two individuals, one of which matched the radio dispatch description
exactly, and encountered no other individuals in the area near the convenience
store. It further contended this encounter occurred in "a very short distance over
a very short period of time."
Defendant asserted Officer Avent did not have reasonable suspicion
because "the only reason to stop would have been . . . he is a black male." He
contended defendant did not match the description from the 9-1-1 call beyond
his race and gender and asserted Officer Avent's testimony could not be
"corroborated" because of her violation of the BWC policy. He further asserted
the 9-1-1 call itself could not be corroborated because it was similarly not
properly preserved "with no response from the State as to how that happened."
6 Officer Avent's BWC footage confirms that, immediately after defendant was arrested, she announced over the radio to the other responding officers that "there was another [individual] with a black hoodie and a black mask."
A-1935-24 9 After considering the officers' testimony and parties' oral arguments, the
court issued an oral decision. The court agreed with defendant that the State's
failure to preserve the 9-1-1 call and Officer Avent's failure to turn on her BWC
were "violations of the policy," to which defendant was entitled "to an adverse
inference on that violation . . . by statute." The court, however, concluded such
violations did not "change [its] findings of fact in this case." It explained it
"may not have the 9-1-1 call, but [it has] the actual 9-1-1 caller on BWC giving
information in real time," immediately followed by Officer Avent's transmission
that the suspects were fleeing. The court found the entire encounter from
transmission to defendant's arrest was "three to five minutes," which made it
"one of the quickest responses this [c]ourt ha[d] seen."
The court concluded what defendant was wearing "did not matter" because
he "happen[ed] to be with the person [who matched] the very specific
description" and was "one of two people who just came around the corner from
where a crime had been attempted to be committed." The court also found
persuasive the proximity of the convenience store to where defendant was
initially stopped and later arrested. It decided defendant's attempt to flee
constituted "an investigative detention that prompted a probable cause-based
arrest for violating the obstruction or resisting statute." The court found the
A-1935-24 10 officers also had probable cause for attempted burglary, but, in any event, the
officers "had probable cause for arrest, and search incident to arrest."
Regarding the credibility of the officers, the court found all three "to be
extremely credible" and noted Officer Veloso provided a detailed and thorough
description of "the whole scenario, given his response time, and his interviews,
both with the 9-1-1 caller and his apprehension of the suspect." He also found
"no reason to doubt Officer Avent's testimony that they were the only
individuals on the street, and . . . at least one fit the description."
Later that day, the court issued a corresponding order supplemented by a
February 21, 2024 written decision denying defendant's motion to suppress the
evidence in the instant case. In its written decision, the court found "there is no
question that Officer Avent had a reasonable and articulable suspicion to stop
defendant and the man with whom he was walking." The court found the facts
that the 9-1-1 caller followed the suspects around the corner and Officer Avent
"almost simultaneously" observed two men matching the description walking
down an empty nearby street were "sufficient to conduct an investigative
detention." The court rejected defendant's argument that he was racially profiled
as "there [was] nothing in the record to support that assertion," especially in
light of the immediateness of the officers' response.
A-1935-24 11 The court further found that Officer Avent's initial interaction with
defendant was, indeed, an investigatory stop, notwithstanding the fact that she
did not clarify "the manner in which she pulled up next to them and asked where
they were going." The court decided whether it was a "completed stop" was "of
no moment" in light of its conclusion that Officer Avent had reasonable
suspicion that the two men "were involved in the attempted theft." It further
found defendant's flight after the stop was initiated "gave rise to probable cause
to arrest for the attempted burglary as well as obstruction . . . ."
With respect to the missing 9-1-1 call, the court determined "it is clear
. . . defendant was not prejudiced by the loss or destruction of this evidence." It
found the only relevant information was what the officers knew at the time
Officer Avent had initiated the stop, which included the report that two
individuals attempted to break into cars near a convenience store and that one
was wearing all black and a black mask. The court also noted the officers
personally spoke with the caller, who provided "the exact same information,
confirming that dispatch's message was an accurate description of the 9 -1-1
call."
A-1935-24 12 II.
Before us, defendant argues Officer Avent did not have reasonable
suspicion when she initiated an investigatory stop because she detained him
"based only on the dispatch that two black men had been seen pulling car door
handles." He asserts Officer Avent relied on a 9-1-1 call from an "unknown
amount timer earlier" where the caller "reported seeing two black men 'pulling
on [car] door handles'" and one of the two men was "wearing black clothing and
a mask." He contends Officer Avent's actions constituted an "investigatory
detention" when she "stop[ed] her marked police car next to [defendant],
question[ed] him about his direction of travel, and g[ot] out of her car to further
interact with him."
Defendant further maintains New Jersey precedent support his contention
that Officer Avent did not possess reasonable suspicion. Notably, he cites State
v. Caldwell, 158 N.J. 452 (1999) and State v. Nyema, 249 N.J. 509 (2022), for
the proposition that the information known by Officer Avent at the time of her
detention "was just as generic as that known by the officers in Caldwell [and]
Nyema."
Further, defendant contends the behavior described on the call did not
constitute nor suggest criminal activity and maintains "police must take care to
A-1935-24 13 avoid acting on the basis of a 9-1-1 call motivated by racial prejudice."
Defendant asserts officers could not have inferred any criminal activity "without
more information about what the caller had observed." He asserts "the
somewhat generic information provided in the 9-1-1 call was [not] 'simply one
piece of the puzzle.'" (quoting State v. Gamble, 218 N.J. 412 (2014)).
Next, defendant contends Officer Dacruz did not have probable cause to
"escalate[] the encounter into an arrest when he tackled and handcuffed
[defendant], then comprehensively searched his person," as his conduct was
based "on the same facts known to [Officer] Avent." He asserts the "only
additional detail" of which he was aware at the time of the arrest was defendant's
flight, which was not "was not enough to provide Dacruz with probable cause to
arrest [defendant]." Defendant contends our "courts have recognized time and
again that many law-abiding citizens dread and seek to avoid police encounters,
causing them to react in a variety of ways when they become the focus of police
attention." Defendant argues State v. Dangerfield, 171 N.J. 446 (2002) supports
his assertion that merely fleeing from officers does not constitute probable cause
to effectuate an arrest.
Finally, defendant contends a remand is necessary because the court
"failed to apply the rebuttable presumption that exculpatory evidence was
A-1935-24 14 destroyed or not captured in favor of a criminal defendant when Officer Avent
failed to activate her body worn camera prior to initiating the stop." (internal
quotation marks omitted). Defendant argues proper application of the rebuttable
presumption established by N.J.S.A. 40A:14-118.5(q) "would have undermined
[Officer Avent's] testimony that [defendant] was walking with a person
matching the description." Defendant asserts he raised this issue when he "could
not confirm whether Avent had seen [him] with 'someone that could have
matched th[e] description' of a black man wearing dark clothing." We disagree
with all of defendant's arguments.
III.
We begin our analysis by reciting the appropriate standard of review,
followed by the applicable substantive constitutional legal principles that inform
and guide our analysis. Our review of a trial court's decision on a motion to
suppress is limited. State v. Ahmad, 246 N.J. 592, 609 (2021). We will defer
to the trial court's factual findings so long as they are supported by sufficient
evidence in the record, setting them aside only when "clearly mistaken." State
v. Caneiro, 262 N.J. 288, 300 (2025). The trial court's legal interpretations,
however, are reviewed de novo. Ibid.
A-1935-24 15 A.
Both the Fourth Amendment to the United States Constitution and Article
I, Paragraph 7 of the New Jersey Constitution, "guarantee individuals the right
to be free from unreasonable searches and seizures." State v. Carter, 247 N.J.
488, 524 (2021). In recognition of that right, warrantless searches and seizures
are held to be presumptively invalid. State v. Rosario, 229 N.J. 263, 271 (2017)
(citing State v. Elders, 192 N.J. 224, 246 (2007)).
However, "[n]ot all police-citizen encounters constitute searches or
seizures for purposes of the warrant requirement." Rosario, 229 N.J. at 271
(quoting State v. Rodriguez, 172 N.J. 117, 125 (2002)). A field inquiry, for
example, is "essentially a voluntary encounter," in which an individual is not
compelled to answer, or even listen to, police questions. Ibid. Such encounters
need not be proceeded by any "particular suspicion of criminal activity," but are
valid only if the defendant, "under all of the attendant circumstances, reasonably
believed he could walk away without answering." Id. at 272 (first quoting
Elders, 192 N.J. at 246; and then quoting State v. Maryland, 167 N.J. 471, 483
(2001)).
A-1935-24 16 In contrast, an investigative detention or "Terry stop,"7 is a "temporary
seizure" that occurs when "'an objectively reasonable person' would feel 'that
his or her right to move has been restricted.'" Ibid. (quoting Rodriguez, 172 N.J.
at 126). Such stops must be "brief and narrowly circumscribed" and the
"intrusion on the individual [must be] minimal." State v. Dickey, 152 N.J. 468,
477 (1998). They must last no longer and be no more intrusive than necessary
to effectuate "the purpose that justified the stop in the first place." State v. Shaw,
237 N.J. 588, 612 (2019). Provided these criteria are met, police may conduct
an investigative detention based on objectively "reasonable and particularized
suspicion . . . that an individual has just engaged in, or was about to engage in,
criminal activity." Rosario, 229 N.J. at 263 (quoting State v. Stovall, 170 N.J.
346, 356 (2002)).
An investigatory stop does not offend the federal or state constitutions "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." Nyema, 249 N.J. at 527 (quoting Rodriguez, 172 N.J. at 126).
"Determining whether reasonable and articulable suspicion exists for an
investigatory stop is a highly fact-intensive inquiry." Id. at 528. Courts must
7 Terry v. Ohio, 392 U.S. 1 (1968). A-1935-24 17 evaluate "the totality of circumstances surrounding the police-citizen encounter,
balancing the State's interest in effective law enforcement against the
individual's right to be protected from unwarranted and/or overbearing police
intrusions." Ibid. (quoting State v. Privott, 203 N.J. 16, 25-26 (2010)).
"[P]roximity in terms of time and place can certainly be factors in determining
whether reasonable suspicion existed." Id. at 534.
Where, as here, an "anonymous tip is conveyed through a 9-1-1 call and
contains sufficient information to trigger public safety concerns and to provide
an ability to identify the person, a police officer may undertake an investigatory
stop of that individual." State v. Gamble, 218 N.J. 412, 429 (2014). That is
because courts treat anonymous 9-1-1 calls as more reliable than other
anonymous tips, owing to "technological and regulatory features of the 9 -1-1
system which safeguard against false reports." Id. at 430; 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))).
Further, "information imparted by a citizen directly to a police officer will
receive greater weight than information received from an anonymous tipster."
A-1935-24 18 State v. Basil, 202 N.J. 570, 586 (2010). "Thus, an objectively reasonable police
officer may assume that an ordinary citizen reporting a crime, which the citizen
purports to have observed, is providing reliable information." Ibid. This is so
because "we assume that an ordinary citizen 'is motivated by factors that are
consistent with law enforcement goals,'" ibid. (quoting State v. Davis, 104 N.J.
490, 506 (1986)), and thus may be regarded as trustworthy, State v. Hathaway,
222 N.J. 453, 471 (2015).
Our Supreme Court has made clear, however, that a description of the race
and gender of a criminal suspect, without more, is insufficient information to
effectuate an investigatory stop. Nyema, 249 N.J. at 531. Specifically, when
the police act on information provided by a 9-1-1 caller or an informant, the
description must provide information beyond the suspect's race and gender, such
as the suspect's approximate height, weight, age, clothing worn, "or any other
identifying feature that would differentiate the two Black male suspects from
any other Black men in New Jersey." Ibid.; see also Caldwell, 158 N.J. at 454-
55 (invalidating an investigatory stop based on a tip from an informant who told
police that there [were] a black man standing in front of a building). In that
regard, the Court has explained that "vague" descriptions of race and gender are
"'descriptive of nothing'" and insufficient to effectuate an investigatory stop
A-1935-24 19 without more. See id. at 533-34 (quoting Caldwell, 158 N.J. at 468); see also
Shaw, 213 N.J. at 411, 421 (stating "[a] random stop based on nothing more than
a non-particularized racial description of the person sought is especially subject
to abuse").
We are convinced Officer Avent's investigatory detention was justified by
reasonable articulable suspicion in light of the totality of the circumstances. As
confirmed by the BWC, the officers' testimony, and CAD report, Officer Avent,
as she initiated the stop, observed defendant as one of the only two individuals
in the immediate area of the convenience store within minutes of receiving
notice from dispatch, the other of which he was walking beside and matched the
9-1-1 caller's description exactly, including wearing all black and a mask.
Further, as the court notes, the initial investigatory stop by Officer Avent
occurred within a two-block radius of the convenience store, and the individuals
were walking away from the store, in the direction and manner consistent with
the contemporaneous updates to dispatch provided by the 9-1-1 caller, who had
followed the suspects. We note the officers acted immediately upon the
information provided by dispatch without delay, as the entire encounter took
only three to five minutes.
A-1935-24 20 We reject defendant's argument that he was seized solely based on his race
and gender, that 9-1-1 caller's description was generic and unreliable, and his
reliance on Caldwell and Nyema to support his arguments. In Nyema, our
Supreme Court concluded police dispatch alerting officers that the suspects of
an alleged robbery were "two black males, one armed with a gun," was
insufficient to support reasonable suspicion, despite the suspect's alleged
"nervous behavior," which was "subject to many different interpretations." 249
N.J. at 515. In Caldwell, our Supreme Court held officers did not have
reasonable suspicion when acting upon a tip from an informant concerning a
description of a "black man standing in front of a building." 158 N.J. at 454-55.
Defendant himself acknowledges, and we agree, that the caller's
description of the individuals included details beyond race and gender, including
a description of the other individual and their contemporaneous location as they
walked away from the convenience store. Indeed, the record reflects the
dispatch, the officer's testimony, and the CAD report all described the caller as
observing two black males, one of whom was dressed in all black and wearing
a mask. Further, as correctly noted by the State, the tips in Caldwell and Nyema
not only did not include any descriptions beyond the defendants' race or gender,
but also either were not acted upon by police with such rapidity nor did not come
A-1935-24 21 from a 9-1-1 call from a concerned citizen, who, in this case, followed defendant
and provided additional updates to his location.
Finally, we also reject defendant's contention that Officer Avent did not
have reasonable suspicion a crime had occurred in light of dispatch's description
of the call. As testified by Officer Veloso, the responding officers, based on
their experience, understood "flipping door handles" to indicate that the
individuals were attempting to burglarize cars in the parking lot. We are
convinced the dispatch adequately described potential criminal conduct such
that Officer Avent had reasonable suspicion of a crime.
B.
Probable cause is a "a well-grounded suspicion that a crime has been or is
being committed." State v. Pineiro, 181 N.J. 13, 21 (2004) (internal citations
omitted). "It requires nothing more than 'a practical, common-sense decision
whether, given all the circumstances . . . there is a fair probability' " that a crime
has been committed. Dangerfield, 171 N.J. at 456 (internal citations omitted).
A totality of the circumstances standard applies to probable cause
determinations because probable cause is a "fluid concept – turning on the
assessment of probabilities in particular factual contexts – not readily, or even
usefully, reduced to a neat set of legal rules." Schneider v. Simonini, 163 N.J.
A-1935-24 22 336, 361 (2000) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). The
reasonableness of the arresting officers' actions must be considered from "the
specific reasonable inferences which [they are] entitled to draw from the facts
in light of [their] experience." Dangerfield, 171 N.J. at 456 (quoting Terry, 392
U.S. at 27). Probable cause, however "cannot be based upon a mere hunch."
State v. Sansotta, 338 N.J. Super. 486, 491 (App. Div. 2001).
"[F]light alone does not create reasonable suspicion for a stop, let alone
probable cause." Dangerfield, 171 N.J. at 457 (citing State v. Tucker, 136 N.J.
158, 169 (1994)). Indeed, our Supreme Court has noted certain individuals "may
not feel entirely comfortable in the presence of some, if not all, police is
regrettable, but true." Tucker, 136 N.J. at 169. The Tucker court also explained,
however, "'reactions by individuals to a properly limited Terry encounter, . . .
such as flight, may often provide the necessary information, in addition to that
the officers already possess, to constitute probable cause.'" Id. at 168 (citation
omitted); see also State v. Williams, 192 N.J. 1, 4 (2007); State v. Crawley, 187
N.J. 440, 460-61 (2006). Accordingly, a defendant's flight may "'reasonably
justify an inference that [defendant's flight] was done with a consciousness of
guilt and pursuant to an effort to avoid an accusation based on that guilt.'" Ibid.
(citation omitted). In those circumstances, flight can "convert[] articulable
A-1935-24 23 suspicion into probable cause" to justify an arrest. State v. Ramos, 282 N.J.
Super. 19, 22 (App. Div. 1995).
We also note that when the police are involved in a collaborative
investigation, the probable cause analysis is not limited to the knowledge
possessed by the officer who effects the arrest. United States v. Belle, 593 F.2d
487, 497 n.15 (3d Cir. 1979) ("The collective knowledge of the investigating
officers is measured in determining probable cause."); Wood v. Crouse, 436
F.2d 1077-78 (10th Cir. 1971) (same); see also United States v. Hensley, 469
U.S. 221, 229-33 (1985) (holding that officers who detain a suspect in reliance
on a "wanted flyer" do not violate the Fourth Amendment if the flyer-issuing
agency had reasonable, articulable suspicion "that the wanted person has
committed an offense"); Crawley, 187 N.J. at 457-58 ("if the dispatcher in th[at]
case had been provided adequate facts from a reliable informant to establish a
reasonable suspicion that defendant was armed, common sense tells us that the
dispatcher had the power to delegate the actual stop to officers in the field").
We are convinced Officer Dacruz's arrest, and later search incident to that
arrest which produced defendant's handgun, was supported by probable cause.
In light of our conclusion that the officers had reasonable suspicion to initiate
the initial investigatory stop, we find defendant's flight converted reasonable
A-1935-24 24 suspicion to probable cause because the arrest was also supported by all the
noted factors supporting Officer Avent's reasonable suspicion. See Crawley,
187 N.J. at 457-58. In any event, we are satisfied his BWC footage and Officer
Veloso's testimony confirm, at the time of the arrest, Officer Dacruz was also
aware of the information provided by the 9-1-1 call and the temporal and
geographical proximity to the alleged crime. We agree with defendant's
argument that flight alone does not constitute probable cause under our
precedent but find, unlike the arrest in Dangerfield where flight did not convert
reasonable suspicion to probable cause, there are additional factors, of which
Officer Dacruz was aware, to support the arrest.
To the extent defendant contends there was no probable cause because
Officer Avent did not order defendant to stop, we reject it. As the State notes,
this is a case where officers had reasonable suspicion before defendant's flight,
and, further, as the court found, there is probable cause to support defendant's
alleged obstruction but also his attempted burglary in light of the details
described on the 9-1-1 call that two individuals were "flipping" vehicle door
handles in the parking lot. In any event, Officer Dacruz's BWC footage also
confirms defendant was, indeed, ordered to stop.
A-1935-24 25 C.
Under N.J.S.A. 40A:14-118.3(a), "every uniformed State, county, and
municipal patrol law enforcement officer shall wear a [BWC] that electronically
records audio and video while acting in the performance of the officer's official
duties, except" in certain limited circumstances. When an officer fails to turn
on their BWC, N.J.S.A. 40A:14-118.5(q)(2) provides, in relevant part:
If a law enforcement officer, employee, or agent fails to adhere to the recording or retention requirements contained in this act, or intentionally interferes with a body worn camera's ability to accurately capture audio or video recordings:
....
(2) there shall be a rebuttable presumption that exculpatory evidence was destroyed or not captured in favor of a criminal defendant who reasonably asserts that exculpatory evidence was destroyed or not captured.
In State v. Jones, we rejected the trial judge's determination that the
rebuttable presumption set forth in N.J.S.A. 40A:14-118.5(q) is limited to trials
and does not apply to suppression hearings. 475 N.J. Super. 520, 531 -32 (App.
Div. 2023). Hence, the presumption applies here, although it is overcome. In
State v. Seligman, we noted, "nothing in the text of the statute, or in our
interpretation of it in Jones, suggests that a violation the BWC Directive, now
A-1935-24 26 incorporated by reference in N.J.S.A. 40A:14-118.5, warrants automatic
suppression of evidence otherwise lawfully seized under our State and federal
constitutions." 480 N.J. Super. 509, 524 (App. Div. 2025). "[T]he Legislature
clearly knows how to prescribe the suppression remedy for statutory violations,
see, e.g., N.J.S.A. 2A:156A-21, but did not do so with respect to BWC
violations." Ibid.
We are convinced Officer Avent's failure to turn on her BWC and its
triggering of the adverse inference under N.J.S.A. 40A:14-118.5(q)(2) does not
require a remand for additional fact-finding and are satisfied there is ample
evidence in the record to rebut it. In particular, we find Officer Veloso's
testimony, including his conversation confirming the substance of the 9-1-1 call
from the caller himself, and Officer Rodriguez's testimony, including his
perspective of what he observed of the individuals as he chased, corroborate her
account and overcome any inference that exculpatory evidence was destroyed.
If there was any doubt Officer Avent observed an individual wearing all black
and a mask, her BWC and testimony support she described to the other
responding officers that the other individual was dressed in all black and
specifically wearing a mask. Finally, we note the court found both officers, and
Officer Avent's testimony, "extremely credible."
A-1935-24 27 We further are satisfied the court, in both its oral and written description,
expressly acknowledged Officer Avent's failure and discussed the statutory
adverse inference. Accordingly, we reject defendant's argument that the court
did not consider Officer Avent's failure to turn on her BWC and the adverse
inference to which he was entitled.
To the extent we have not specifically addressed any of defendant's
arguments in any of the subheadings, it is because we recommend that the panel
conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
A-1935-24 28