State of New Jersey v. Ezell Miller

• Court: New Jersey Superior Court Appellate Division
• Decided: February 1, 2024
• Docket: A-2297-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2297-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EZELL MILLER, a/k/a IZEAOL MILLER, SCOOTER MILLER, ISEOL MILLER, TERRENCE WASHINGTON, and TERRANCE WASHINGTON,

Defendant-Appellant. ______________________________

Submitted December 20, 2023 – Decided February 1, 2024

Before Judges Accurso, Gummer and Walcott- Henderson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 18-08-1158, 20-01-0076, and 21-02-0097.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (David Michael Liston, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of his motions to suppress evidence seized in two

warrantless searches, defendant Ezell Miller pleaded guilty to third-degree

possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1),

under Indictment 18-08-1158 for which he was sentenced to five years in State

prison; third-degree possession of a controlled dangerous substance with intent

to distribute, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(3) and 2C:2-6 under

Indictment 20-01-0076 for which he was sentenced to eight years to be served

concurrently; and fourth-degree contempt, N.J.S.A. 2C:29-9(a) under

Indictment 21-02-0097 for which he received a concurrent six month sentence;

amounting to an aggregate eight-year term. He appeals, raising the following

issues for our consideration.

POINT I

THE MOTION COURT ERRED IN DENYING MILLER'S MOTION TO SUPPRESS UNDER INDICTMENT NUMBER 18-08-01158-I.

A. Miller was subjected to a Terry stop when the officer turned on his overhead lights and parked behind Miller's car blocking his exit.

A-2297-21 2 B. The [Confidential Informant's] tip — entirely lacking in veracity, basis of knowledge, and hard to know or predictive facts — failed to provide a reasonable articulable basis for the police to stop Miller.

C. The State failed to identify any exception to the warrant requirement or establish probable cause to validate the search of Miller's person or alternatively, that Miller was armed and dangerous to justify a frisk.

POINT II

THE MOTION COURT ERRED IN DENYING MILLER'S MOTION TO SUPPRESS UNDER INDICTMENT NUMBER 20-01-00076-I.

A. Miller was subjected to a Terry stop when two officers parked their cars to block him in on the street, and one officer activated his overhead lights and the other got out and pointed a gun at him.

B. The anonymous 9-1-1 tip alone did not establish reasonable suspicion to stop Miller at gunpoint.

C. Miller's supposedly furtive movements, and failure to comply with the commands of an officer — who suddenly appeared from behind shouting and pointing a gun at him — within six seconds, did not create probable cause to search the car.

We agree the court erred in denying defendant's suppression motions and, thus,

reverse both orders on appeal.

Indictment 18-08-1158

A-2297-21 3 The State presented two witnesses at the suppression hearing, the Edison

detective who received information from a confidential informant and set up

surveillance and the patrol officer working with him who arrested defendant.

At the time of defendant's arrest in June 2018, the detective had been working

as a narcotics detective for only about a year and participated in only a dozen

or so investigations. He had never received any training about working with a

confidential informant, and the informant who provided information about

defendant was the first informant the detective developed himself. The

detective testified he'd worked with the informant on only one other

investigation, which had not resulted in an arrest or a conviction. According to

the detective, the informant had provided reliable information in that matter,

but the investigation had been cut short after the target was arrested by another

agency.

The detective testified his informant telephoned him sometime near the

start of the detective's shift at 3:00 p.m. on June 26, 2018, to say "there might

be a drug deal going down" in the area of the 7-Eleven on Lafayette Avenue

near the Woodbridge border. The informant told the detective that "S-Dot," "a

larger Black male with a bald head," whom the informant knew to sell heroin

and cocaine, "commonly . . . accompanied by a [different] female," would "be

A-2297-21 4 in that area for the purpose of selling narcotics." The informant couldn't tell

the detective what kind of car the bald, Black male would be in "because [the

informant] said [the suspect is] always in a vehicle that most likely belongs to

one of those females."

Besides not telling the detective the kind of car S-Dot would be driving,

the informant didn't tell the detective what S-Dot would be wearing or how the

informant knew S-Dot would be selling drugs at the 7-Eleven. And although

the detective wrote in his report that the informant told him in the call that

S-Dot was already on-site selling drugs, the detective testified the informant

didn't "give [him] any time frame."

According to the detective, he set up a "roving surveillance" at about

4:30 or 5:00 p.m., driving up and down Lafayette Avenue and through various

parking lots in the vicinity of the 7-Eleven. He arranged for patrol officers in

an unmarked unit to be parked nearby but out-of-sight to provide assistance as

needed. At around 10:30, six hours after he had begun surveilling the

7-Eleven, the detective spotted a large, bald, Black male, later identified as

defendant, on the sidewalk in front of the 7-Eleven talking on his cell phone.

When queried about the vagueness of the tip in terms of the time on cross-

examination, the detective said he knew "a general time frame," but "from

A-2297-21 5 [his] time in narcotics [he's] realized that time, you know, really means

something different from you and I to this world, people are never really on

time, so it could take three hours, two hours, five minutes."

The detective testified he observed defendant for about a minute-and-a-

half before seeing him move toward a black Audi in the parking lot and

directed the patrol units to move in and "make contact," concerned defendant

would leave. The Audi was parked partially in a handicapped spot, and there

were two women inside. According to the detective, neither defendant nor

either woman went in or came out of the store. The detective testified that

during the minute-and-a-half he watched, defendant merely paced back and

forth on the sidewalk in front of the store windows talking on his cell phone.

The detective never saw anyone approach defendant and did not witness a drug

transaction.

The patrol officer testified he was unable to see the front of the 7-Eleven

from where he was parked. When the detective advised him to move in, he

and his partner pulled behind the Audi with their emergency lights activated,

blocking it in. The officer testified he walked over to where defendant was

sitting in the driver's seat of the Audi, while his partner approached the

passenger side. Defendant provided the officer the car registration and

A-2297-21 6 insurance card but delayed handing over his license. The officer testified

defendant eventually handed him an identification card but continued to

"fumbl[e] around by his right pants pocket." The officer noticed an open beer

bottle in the cup holder in the center console.

The officer testified his partner, who had a better view into the car , told

him to "pull him out," and the officer asked defendant to step out of the car.

According to the officer, as defendant did so, he "stuffed his right hand deep

down into his right pocket." The officer immediately ordered defendant to

take his hand out of his pocket. When defendant failed to comply after being

told a second time, the officer put his hand on defendant's wrist and "guided

his hand" to the roof of the car. When defendant opened his hand, a small bag

of suspected CDS slid down the back window. 1

On cross-examination, the officer conceded the details about the open

container, defendant "fumbling around by his right pants pocket" and the

officer's partner telling him to pull defendant out of the car were not

mentioned in the report he'd written two-and-a-half years earlier. What was

noted, however, is that a sergeant in narcotics told the patrol officers to turn

1 Both passengers were released at the scene. A subsequent search of the car did not reveal any contraband. A-2297-21 7 off their body-worn cameras for this investigation, which the officers did.

Thus, there is no law-enforcement video of this stop. 2 The officer explained

that even though he and his partner were in uniform, it was department policy

not to activate body worn cameras when there were "either confidential

informants . . . or undercover officers" present. There was no testimony at the

hearing that either the confidential informant or any undercover officer was

involved in the surveillance or present at the scene.

Defendant presented the testimony of two witnesses, the investigator

who secured the video from inside the 7-Eleven admitted in evidence and one

of the passengers of defendant's car, who identified herself and defendant as

the individuals depicted in the video standing inside the store making

purchases at the counter. The video begins at 10:25 p.m. with defendant

standing at the counter with items, including a bag of chips, in front of him.

Seven or eight seconds later, the witness entered the store, walking past

2 The officer testified he was not sure whether there was a dash camera in his unmarked car. He conceded he would have had to turn the camera off when he turned on the overhead lights if one were installed, and he would have done so for the same reason he turned off his body-worn camera. The rebuttable presumption provided a defendant under certain circumstances by N.J.S.A. 40A:14-118.5(q) when stop video is not recorded, although applicable to suppression hearings, State v. Jones, 475 N.J. Super. 520, 531 (App. Div. 2023), was not available here as the stop pre-dated the statute. A-2297-21 8 defendant and out of the frame. She reappears, walking over to the counter at

10:25:41. Defendant completed his purchase and turned to walk out of the

store, apparently talking on his cell phone, which he was holding near his

chest. He left the store at 10:26:18. The witness completed her purchase and

left the store at 10:26:37. Less than two minutes later, at 10:28:33, flashing

red and blue lights can be seen in the parking lot.

The Law Division judge denied defendant's suppression motion

regarding this stop in an amended written decision of March 22, 2022.3 He

found the detective received a tip from an informant "at approximately 10:30

p.m." while "on plain clothes duty in an unmarked vehicle . . . that a male,

known as 'S-Dot', was in the parking lot" of a local 7-Eleven on Lafayette

Avenue. As the detective and two patrol officers converged on the parking lot,

the detective saw "a large, Black male with a bald head" matching the

description provided him, standing next to a car talking on a cell phone.

The judge described the stop and search, noting defendant had "20 folds

of heroin and a baggie of cocaine" in his hand when he was arrested. The

judge did not refer to the video or the testimony of defendant's witnesses. He

found the officers had "probable cause to question and ask [defendant] to step

3 The original April 20, 2021 decision is not in the record. A-2297-21 9 out of his vehicle based on the information provided by the confidential

informant," and "[g]iven the totality of the circumstances there was probable

cause based on the informant's tip, corroborated by law enforcement, to

apprehend [defendant]."

Specifically, the judge found the "informant's basis of knowledge was

detailed enough to describe the area" where defendant "could be found and

whom he would be with" and that he would be accompanied by a woman in a

car not belonging to him. Although the judge noted his agreement with the

defense that the description provided of "a large, bald, Black male" was

"vague," he found the informant had provided additional "more specific facts,"

leading the officers to conclude defendant was S-Dot. The judge concluded

the "officers were within their rights to stop and question [defendant], at which

point it was [his] action that ultimately led to further suspicion and eventually

a search, revealing he was indeed carrying CDS."

Finally, the judge concluded "the informant's veracity is of no

consequence" as the detective testified "he took measures to corroborate the

information provided" by the informant during the prior investigation and it

"was proven to be accurate" albeit there was no arrest made by Edison police.

The judge found the detective's "testimony to be truthful and ha[d] no reason

A-2297-21 10 to believe the information he provided was false" allowing the judge to

conclude "based on the informant's veracity and basis of knowledge, along

with police corroboration, [that] law enforcement had enough probable cause

to question [defendant], as well as to ask him to step out from his vehicle."

Indictment 20-01-0076

The only two witnesses to testify at the suppression hearing were the

New Brunswick officers who responded to a dispatch about an anonymous

caller reporting a man with a gun. The call, which lasted about a minute, came

in at approximately 1:30 on a Saturday afternoon in late October 2019. The

caller claimed he was walking down Lee Avenue when a light-skinned, bald

guy in a white Toyota Corolla parked on Baldwin Street between Lee and

Remson Avenues "pulled a gun out." Two patrol cars were nearby, and both

responded to the scene.

The officers arrived within seconds of one another, about two minutes

after the 911 call, positioning their patrol cars so as to block in the suspect car,

a white Toyota Camry, parked in a line of cars on the street. Acknowledging

at the hearing it was contrary to standard operating procedure, the first officer

to arrive did not activate his dash cam. Thus, the only video of the stop is

from the second patrol car.

A-2297-21 11 The first officer testified he radioed in that he'd found a car matching the

description and saw a man, later identified as defendant, sitting in the driver's

seat. After making that radio call, the officer claimed he got out of his patrol

car, asking dispatch to "hold the air for any unnecessary transmissions," and

walked the fifteen or twenty feet to the white Camry.4 The officer approached

the car from the rear on the driver's side from where he could "see much of the

interior of the car," "[n]early the whole thing."

According to the officer, both defendant and the woman the officer saw

sitting directly behind defendant were startled by the officers' arrival and

immediately began twisting around in their seats to try to see what was going

on. The officer testified defendant was plainly "startled, scared, and surprised"

at the officers' arrival. The officer initially testified he drew his service

weapon only when he was about six feet from the Camry after defendant had

refused his command to show both hands. The officer claimed defendant had

his left hand up but was reaching between the seats with his right hand where

the officer couldn't see it, causing him to draw his gun.

4 The officer canceled that hold a minute or two later, explaining he did so "after everything was safe." A-2297-21 12 The officer was on cross-examination with defense counsel having him

explain his movements step-by-step when the court broke for lunch. When

defense counsel resumed his cross-examination after the lunch break, the

officer asked if he could "walk back" his testimony about the exact sequence

of events, conceding it was at odds with what he'd seen on the dash cam video

over the break.5

The second officer testified he was about two blocks away when the call

came in from dispatch of "a report of a male inside a white Toyota possibly a

Camry who may have brandished or pointed a handgun." The officer testified

he activated his overhead lights, which activated his dash cam, and headed to

the scene as backup. According to the second officer, as he pulled up near the

front of the Camry, he saw the first officer step out of his patrol car and

5 The judge reminded the officer before the lunch break that he was still under oath on cross-examination and cautioned him not to "discuss the case with anyone." After lunch, when it became clear the witness was aware his prior testimony was admittedly inconsistent with both his report and the dash cam video, the assistant prosecutor conceded he'd shown the officer the video over the break. The prosecutor claimed he didn't understand the long-standing proscription against a witness discussing the case with anyone during a break in his testimony extended to him. See Perry v. Leeke, 488 U.S. 272, 282 (1989) (holding "it is entirely appropriate for a trial judge to decide, after listening to the direct examination of any witness, whether the defendant or a nondefendant, that cross-examination is more likely to elicit truthful responses if it goes forward without allowing the witness an opportunity to consult with third parties, including his or her lawyer"). A-2297-21 13 immediately draw his service weapon, which the dash cam video, admitted in

evidence, confirmed.

The second officer likewise testified defendant was startled by the

officers' arrival. According to that officer, in the "couple of seconds" it took

him to reach the Camry's door, defendant kept his left hand up above the

steering wheel in response to the command to show his hands but kept his right

hand "at his side, along the side of the driver seat," where the officer couldn't

"see what he was doing with it," and started to open his car door. As the

second officer got closer, he saw a woman in the backseat with a baby and a

car seat. He testified "when [he] saw the individual behind the driver's seat

and the driver's failure to raise both hands, [he] assumed that they were

passing something to one another."

The second officer announced "there's a kid in the car" and motioned for

the first officer to holster his weapon. The second officer ordered defendant to

stay in the car as he ordered the passenger in the back seat to get out, which

she did holding the baby. The first officer followed the passenger to the

sidewalk on the opposite side of the car. The second officer approached the

driver's open door and asked him to step out. When defendant stepped out, the

officer directed him to turn around inside the open door and place his hands on

A-2297-21 14 the roof of the car, prompting defendant to ask, in a conversational tone,

"What's wrong?" Both defendant and his passenger were cooperative.

As the officer began his pat down, he explained that "somebody just

called in that a Black male in a white Toyota pulled a gun on him." Both

defendant and his passenger reacted to that, with the passenger shouting,

"What?" and defendant expressing surprise and denial. As the passenger

continued to loudly question the second officer from the sidewalk, he asked

both to "calm down, okay," telling defendant "let me just check you." As the

officer continued his pat down, he asked defendant "did you have an argument

with somebody," to which defendant responded "nah." Completing his pat

down of defendant, the second officer, still standing in the open door with

defendant, again addressed the passenger, saying "ma'am, listen. We got a

call, okay. I don't mean to scare your daughter, but we have to do this, okay?

I just want everybody to calm down."

The second officer then addressed defendant, asking "did you get into an

argument with a woman?" Defendant responded: "Nah, I didn't get into an

argument with no woman." The officer then asked for defendant's driver's

license, but quickly determined he didn't need to see it because defendant

wasn't "operating the vehicle." Continuing to address defendant, the officer

A-2297-21 15 said: "understand that my partner here, we gotta do what we gotta do. It's just

for our safety. Now that we know we're safe, he put his gun away and

everybody is gonna remain calm." Defendant remained cooperative but

wanted to know who'd told the officers he had a gun. The officer asked

defendant to "please sit over here on the curb, alright, and relax for a second,

so I can check your car and make sure there's nothing in there." Before he did

so, however, the officer contacted dispatch to allow defendant to hear from

dispatch what the 911 caller had reported.

The second officer began his search at the driver's door. He then picked

up a jacket off the backseat and went through the pockets. The officer then

searched the passenger's purse and baby bag, which were also on the backseat,

and returned them to her. Asked by the assistant prosecutor why he gave the

passenger back her purse given it could conceal a handgun, the officer

responded that he'd "searched it" and found "nothing."

When the officer searched the map pocket on the back of the driver's

seat, he found a clear sandwich bag with sixty folds of heroin and thirteen bags

of cocaine. The officer testified he searched behind the driver seat because he

"believed that the driver passed something off to the rear passenger, which is

A-2297-21 16 why [the driver's] hand was concealed for the majority of the time I asked for

him to show me his hands." The officers did not find a gun in the car.

The judge put an opinion on the record immediately after hearing the

testimony, denying defendant's suppression motion. The judge found the

anonymous 911 report of a light-skinned, bald male flashing a gun in a white

Toyota, in the immediate area the caller reported, justified the officers

investigative stop of the car. He found, however, that "what trigger[ed] the

officers' actions [was] the defendant being non-responsive to their commands"

in a call about a gun, "plain and simple."

Specifically, defendant, "in a dark vehicle, reaches down with one hand

away from the officers while the officers, at least one if not both are telling

him to show [his] hands, to do whatever he's doing in the center console." The

judge found it was not clear what defendant was doing with his right hand

when he wasn't presenting it to the officers. He noted it was plain defendant

was not hiding a gun, as no gun was found. The judge allowed it was "maybe"

possible defendant was hiding the drugs, and "[m]aybe he was adjusting his

seat belt." Regardless, defendant was "reaching down to do something other

than what the officers are telling him."

A-2297-21 17 Considering whether that conduct was "enough" to allow the officers "to

go ahead and search the vehicle" the judge found turned on "the totality of the

circumstances, and more important, was the conduct of the police reasonable. "

The judge noted that even though "the car had not been searched . . . and it was

not established yet whether there was a gun on the scene," the second officer

"had the wherewithal" to tell the first officer "hey, lower your gun, there's a

baby in here." The judge found "the officers [were] able to fully control the

situation" once defendant and his passenger and her child were out of the car,

but that it was certainly reasonable for the officers to "at least search[] the

center console of that car, before [they] put anybody back in it, to ensure that

the people aren't gonna get back into that car and drive away and maybe take a

pot shot at the officers on their way out."

The judge found "the officers did everything they were supposed to do"

to ensure both their safety and the passenger's safety, noting the possibility that

defendant had pointed a gun at her, and "get the search done and get in and out

as quickly as possible. So, if in fact there's nothing to be found in that car,

they don't have to inconvenience those people and that child any more than

they did." The judge declared if there was "an issue to be had" about the

sufficiency of the circumstances "to trigger [the officers'] ability to search that

A-2297-21 18 car, I point right to [defendant] who remained non-responsive, non-compliant

to commands," specifically, "to the civil commands of showing [his] hands,

hands that he arguably already had on the steering wheel when the officers

arrived and then only decided to reach for something else when they arrived,

instead of following what they said" to do.

The judge found that had defendant merely waited in his car with his

hands raised, "there would have been no reason to search that vehicle."

Although the judge acknowledged the defense's argument that the first officer

"was too quick to pull his gun," resulting in the startled movements of

defendant and his passenger, which the officers then relied on to search the

car, the judge found it reasonable that the officer pulled his gun "because this

is a gun call." The judge found that even if the first officer got out of his car

with his gun drawn, he would not have found it unreasonable for the officer to

have drawn his weapon, standing some distance from defendant's car while the

second officer got into position.

Finally, in response to counsel's question of whether the judge was

ruling the officers could have searched the entire car "even in places where a

gun could potentially not have been [hidden], such as the map pocket," the

judge responded that there'd been no testimony about the size and shape of the

A-2297-21 19 map pocket and whether it was too tight to have accommodated a gun. The

judge was satisfied the officers' testimony that the woman in defendant's

backseat was not sitting upright but was leaned over, likely attending to the

baby, supported the suspicion that defendant had passed something to her from

the front seat, making a search of that area reasonable. The judge concluded

his opinion by noting that even though "they didn't find a gun, they still were

able to resolve this search rather quickly."

Our standard of review on a motion to suppress is well established.

State v. Nyema, 249 N.J. 509, 526 (2022). We defer to the trial court's factual

findings on the motion unless they were "clearly mistaken" or "so wide of the

mark" that the interests of justice require appellate intervention, State v.

Elders, 192 N.J. 224, 245 (2007) (internal quotations omitted), mindful it's the

trial judge who saw and heard the witnesses testify, see Trusky v. Ford Motor

Co., Lincoln-Mercury Div., 19 N.J. Super. 100, 104 (App. Div. 1952) (likening

the transcription of oral testimony to a dehydrated peach). Our review of the

trial court's application of the law to the facts, however, is plenary. State v.

Hubbard, 222 N.J. 249, 263 (2015).

Stated differently, although "a reviewing court should take care both to

review findings of historical fact only for clear error and to give due weight to

A-2297-21 20 inferences drawn from those facts by resident judges and local law

enforcement officers," the trial court's "determinations of reasonable suspicion

and probable cause should be reviewed de novo on appeal." Ornelas v. United

States, 517 U.S. 690, 699 (1996). Applying those principles here, we conclude

the trial court erred in denying both suppression motions, albeit for different

reasons.

The 7-Eleven stop

Although we would be remiss in not remarking on the trial court's failure

to consider the evidence defendant presented at the suppression hearing,

particularly the video of defendant inside the 7-Eleven, in assessing the

lawfulness of this stop, the judge's fact-finding is not our focus. See State v.

Ahmad, 246 N.J. 592, 609 (2021) (noting an appellate court owes no deference

to conclusions not based on factual findings). Defendant was no doubt

"seized" within the meaning of the Fourth Amendment when the police

blocked in his car in front of the store. See State v. Rosario, 229 N.J. 263, 274

(2017). Thus, the issue is only whether "the encounter was 'justified at its

inception' by a reasonable and articulable suspicion of criminal activity." Id.

at 276 (quoting State v. Dickey, 152 N.J. 468, 476 (1998)). Our focus is on

A-2297-21 21 whether the judge was correct that the facts he found supported reasonable

suspicion for the stop.6 See Ornelas, 517 U.S. at 699.

That question here turns entirely on whether there was a substantial basis

for crediting the informant's tip that S-Dot might be engaged in a drug deal at

the 7-Eleven on Lafayette Avenue. See State v. Smith, 155 N.J. 83, 92 (1998).

New Jersey courts analyze the reliability of an informant's tip based on the

totality of the circumstances, paying particular attention to the informant's

veracity and the basis of her knowledge. State v. Novembrino, 105 N.J. 95,

123 (1987); Illinois v. Gates, 462 U.S. 213, 230 (1983). "A deficiency in one

of those factors 'may be compensated for, in determining the overall reliability

of a tip, by a strong showing as to the other, or by some other indicia of

reliability.'" State v. Zutic, 155 N.J. 103, 110-11 (1998) (quoting Gates, 462

U.S. at 233). It is, however, difficult, if not impossible, to overcome a

deficiency in both factors, as was the case here. See id. at 113.

6 The judge found the officers had probable cause to stop and question defendant and order him to step out of the car, that is, proof sufficient to arrest — a well-grounded suspicion a crime has been committed and defendant committed it. See Rosario, 229 N.J. at 272. Because the officers needed only reasonable, articulable suspicion of criminal activity to affect this stop, we analyze it under the lower standard. See State v. Rodriguez, 172 N.J. 117, 127 (2002). A-2297-21 22 Although the judge stated the detective received the informant's tip at

10:30 p.m., "that there might be a drug deal going down" at the 7-Eleven on

Lafayette Avenue, the parties agree the informant called the detective at 3:00

p.m., about six-and-a-half-hours earlier. The detective testified the informant

had not told him when the drug deal was to happen and provided him only a

street name for the dealer, preventing the officer from performing a

background check on the suspect. The detective also couldn't look up the car

S-Dot would use to sell drugs because the informant said S-Dot would use "a

different vehicle every time." The detective apparently never queried his

informant about how he knew S-Dot would be selling cocaine and heroin at the

7-Eleven, because when the judge asked the detective specifically about the

basis of the informant's knowledge, the detective failed to answer his question,

responding vaguely that "when you work with confidential informants,

information is provided and — and that's — . . . ."

The failure of a confidential informant to identify the basis of his

knowledge is not fatal if "a reliable basis of knowledge may nonetheless be

inferred from the level of detail and amount of hard-to-know information

disclosed in the tip." Id. at 111. But no reasonable inference can be drawn

here. The tip is notable for its lack of detail, limited as it was to the street

A-2297-21 23 name of "a larger Black male with a bald head," who sold heroin and cocaine,

often accompanied by a different woman. Although the informant provided a

location, he did not provide a time, what the suspect would be wearing, his real

name, the car he would be driving, or the identity of anyone who would be

with him.

As the Supreme Court has explained, "[i]n the absence of a statement

detailing the manner in which the information was gathered, it is especially

important that the tip describe the accused's criminal activity in sufficient

detail" that a judge executing a search warrant — or a court reviewing a

warrantless search — "is relying on something more substantial than a casual

rumor circulating in the underworld or an accusation based merely on an

individual's general reputation." Smith, 155 N.J. at 94 (quoting Novembrino,

105 N.J. at 113). Here, the informant failed to provide any information that

might suggest he had personal information about S-Dot's affairs or could

predict his movements, failing to satisfy the "basis of knowledge" factor in a

totality-of-circumstances analysis. There was simply not enough evidence in

the record, including the few details corroborated by the police, to allow the

court to determine the intelligence the informant had provided was "obtained

in a reliable way." Ibid.

A-2297-21 24 "Because the information contained in an informant's tip is hearsay and

must be invested with trustworthiness to be considered as probative evidence,

corroboration is an essential part" of any analysis of the reliability of an

informant's tip under the totality-of-the-circumstances test. Id. at 95. Here,

the detective could not corroborate any details of the tip in advance of

surveillance, and the only information he could corroborate in the ninety

seconds he observed defendant on the sidewalk in front of the 7-Eleven, after

over six hours of surveillance of the location, was that he was "a larger, Black

male with a bald head" and there were two women in his car. Although the

detective later learned the car was registered to a woman, specifically

defendant's wife who was not one of the women in the car, he had not run the

Audi's license plate and, thus, was not aware of that before the patrol unit

effected the stop. See Rosario, 229 N.J. at 277 (noting information

subsequently obtained cannot "be used, post hoc, to establish the reasonable

and articulable suspicion required at the outset of the investigative detention");

State v. Bruzzese, 94 N.J. 210, 221 (1983) ("Facts learned by the authorities

after the search and seizure occurs will not validate unreasonable intrusions").

The detective's ability to corroborate only "the suspect's description and

location did not bolster the tip's reliability or add to its weight." See Smith,

A-2297-21 25 155 N.J. at 99. The detective did not observe defendant engage in a drug

transaction or indeed do anything other than stand on the sidewalk in front of

the 7-Eleven talking on his cell phone. "The informant could have easily

known defendant's description" and that he frequented the 7-Eleven "without

being privy to criminal activity, and police corroboration of that neutral

information does not alone or with all the surrounding circumstances suggest

that the defendant was engaged in criminal activity." Ibid.; Florida v. J.L., 529

U.S. 266, 272 (2000) (explaining "reasonable suspicion . . . requires that a tip

be reliable in its assertion of illegality, not just in its tendency to identify a

determinate person").

We disagree with the trial court's statement that "the informant's veracity

is of no consequence" here. The Court has described an informant's veracity

as a "highly relevant, if not essential" factor in assessing the reliability of an

informant's tip under a totality-of-the-circumstances analysis. Smith, 155 N.J.

at 93. "An informant's veracity may be shown by demonstrating that the

informant proved to be reliable in previous police investigations." State v.

Sullivan, 169 N.J. 204, 213 (2001).

Here, the informant had never provided the police with information

leading to arrests or convictions of other targets. State v. Keyes, 184 N.J. 541,

A-2297-21 26 557 (2005). The detective testified he'd worked with the informant in only one

other investigation, which had been cut short by the suspect's arrest by another

agency. And although the detective testified the information the informant

provided in that "previous investigation was truthful and accurate" up to the

point of its suspension, and the court found no reason to believe the

information [the detective] provided was false, the detective's testimony was

insufficient to establish the informant's veracity.

The Court has made clear that conclusory statements about a

confidential informant's reliability will not establish an informant's veracity.

Zutic, 155 N.J. at 111. It's not enough that a detective considers an informant

reliable; there must be evidence in the record to allow the court to "make an

independent evaluation of the informant's veracity." Ibid. Because the

detective never specified the information the informant had previously

provided and how the detective had corroborated it, there was no evidence in

this record to permit the court to conduct that independent evaluation. That

the detective had worked in narcotics for only a year, had established only this

one confidential informant, and had done so without any training in managing

such an informant, distinguishes this case from others in which a detective's

extensive experience in narcotics interdiction informed the court's assessment

A-2297-21 27 of reasonable suspicion. See State v. Rodriguez, 172 N.J. 117, 132 (2002)

(commenting on the role officer experience can play in assessing information

received from an informant in search and seizure cases); State v. Stovall, 170

N.J. 346, 363-71 (2002) (upholding Terry7 stop of airline passenger based

substantially on officer's experience and corroboration of information received

from a drug enforcement agent).

Having reviewed the record, we are convinced the court erred in its

application of the totality-of-the-circumstances test in assessing the reliability

of the informant's tip based on the facts here. The State's failure to establish

the informant's veracity or the basis of knowledge for his tip under well-settled

precedent, as well as the detective's inability to corroborate anything other than

the informant's vague description of the suspect and that he was in a car with

two women at the 7-Eleven, information not suggestive of criminal activity,

makes clear there was no substantial basis to credit the informant's tip that

defendant was engaged in "a drug deal" at the 7-Eleven on Lafayette Avenue.

As that tip was the sole basis for the officers converging on defendant's car, we

conclude the officers lacked reasonable and articulable suspicion of any

criminal activity, requiring the suppression of the drugs recovered from

7 Terry v. Ohio, 392 U.S. 1 (1968). A-2297-21 28 defendant.8 See State v. Herrerra, 211 N.J. 308, 330 (2012) (explaining

evidence seized in an unlawful search or seizure is subject to suppression

under the exclusionary rule).

The gun call stop

This stop and ensuing search, based on the anonymous 911 call, presents

a closer question than the stop based on the tip by the confidential informant.

Our courts view tips to police from identifiable "concerned citizens"

differently than we do tips from police informants and tips from anonymous

911 callers differently still. "'[A] report by a concerned citizen' or a known

person is not 'viewed with the same degree of suspicion that applies to a tip by

a confidential informant' or an anonymous informant." State v. Amelio, 197

N.J. 207, 212 (2008) (quoting Wildoner v. Borough of Ramsey, 162 N.J. 375,

8 Although the police noted at least two motor vehicle code violations, parking in a space reserved for persons with disabilities, N.J.S.A. 39:4-138(o), and having an open container, N.J.S.A. 39:4-51(a), they did not cite defendant or block in his car for either. The detective testified he directed the patrol officers to converge on defendant based only on the detective's suspicion that defendant was selling drugs on the tip from the confidential informant. Thus, this stop was not based on the detective's reasonable suspicion that defendant had committed a minor traffic code violation as in State v. Bacome, 228 N.J. 94, 103 (2017) (holding the detectives' subjective intent to continue their narcotics investigation was irrelevant in light of the detectives' observation of the Title 39 violation that prompted the stop). The detective was not aware of the parking or open-container violations when he ordered the patrol units to prevent defendant from leaving the 7-Eleven parking lot. A-2297-21 29 390 (2000)). The reason is obvious; police informants are many times

criminals themselves and offer information to the police often "in exchange for

some concession, payment, or simply out of revenge against the subject,"

demanding "some evidence of their credibility and reliability be shown." State

v. Lakomy, 126 N.J. Super. 430, 435 (App. Div. 1974) (quoting State v.

Paszek, 184 N.W. 2d 836, 842 (Wis. 1971)). An "ordinary citizen," however,

with "no ties or connections with the underworld" would on the other hand "be

expected to be motivated by factors which are consistent with law enforcement

goals," thus imparting a citizen's tip with an expectation of trustworthiness,

"not especially entail[ing] further exploration or verification of his personal

credibility or reliability before appropriate police action is undertaken. " Ibid.;

Stovall, 170 N.J. at 362 (noting when the informant is an "ordinary citizen,"

veracity is assumed).

Although it's long been the law that "[a]n anonymous tip, standing alone,

is rarely sufficient to establish a reasonable articulable suspicion of criminal

activity," Rodriguez, 172 N.J. at 127, our courts view anonymous 911 calls as

more reliable than other anonymous tips, as "the 9-1-1 system provides the

police with enough information so that users of that system are not truly

anonymous even when they fail to identify themselves by name." State v.

A-2297-21 30 Golotta, 178 N.J. 205, 219-21 (2003) (permitting "reduced corroboration" of

an anonymous 911 call reporting erratic driving given "[t]he risk to life and

safety posed by an intoxicated or erratic driver").

Nevertheless, the Court in Golotta took pains to explain its analysis of

the reliability of 911 calls reporting erratic driving should not be applied

"blindly to other search-and-seizure questions that ordinarily would turn on

principles or considerations not implicated" in that case. Id. at 220. The Court

further stressed it was deciding only "the narrow question [of] whether there

was a sufficient basis to stop the vehicle, not whether grounds existed for the

police to search its contents or arrest its driver. Those more intrusive forms of

conduct are governed by existing case law, the validity of which remains

undisturbed by our holding in this case." Id. at 226.

Our Supreme Court has defined the standard for a "more intrusive"

protective sweep of an automobile in two cases, State v. Lund, 119 N.J. 35, 48

(1990), in which the Court adopted the protective-sweep exception to the

warrant requirement articulated in Michigan v. Long, 463 U.S. 1032 (1983),

but invalidated the search, and State v. Gamble, 218 N.J. 412 (2014), in which

the Court applied Long and Lund to uphold a sweep for weapons following an

anonymous 911 call about a man with a gun.

A-2297-21 31 Lund involved a routine traffic stop on the Turnpike, after dark, by a

trooper riding alone. 119 N.J. at 41. As he pulled in behind the car on the

shoulder, the trooper saw the driver turn around and reach for the back seat.

Ibid. The trooper's angle "did not allow him to see what the driver was doing."

Ibid. When the driver could not produce the car's registration and kept

nervously looking toward the back seat, where the trooper noticed a

windbreaker stuffed into a corner on the same side he'd seen the driver reach,

the trooper asked both the driver and his passenger to step out and patted them

down for weapons. Id. at 41-42.

Finding no weapons, the trooper had the two stand on the shoulder

watched by another trooper who'd arrived in the interim, while he returned to

the car. Id. at 42. Removing the windbreaker, the trooper saw a towel sticking

out from the back seat. Ibid. Reaching into the crevice of the seat, the trooper

felt a hard object and retrieved a large manilla envelope. Ibid. Believing the

hard object inside to be a weapon or drugs, the officer opened the envelope

and found a large quantity of cocaine. Ibid.

Although acknowledging there are "[o]bviously . . . some cases in which

'furtive' movements or gestures by a motorist, accompanied by other

circumstances," including such things as "evasive action," lying, "other

A-2297-21 32 incriminating information" about the driver or passengers, lack of

identification "and even lateness of the hour" can "ripen into a reasonable

suspicion that the person may be armed and dangerous," the Court found "it is

not uncommon for drivers and passengers alike to be nervous and excited and

to turn to look at an approaching police officer" when pulled over by police.

Id. at 47-48 (quoting State v. Schlosser, 774 P.2d 1132, 1137 (Utah 1989)).

Thus, "ordinarily '[m]ere furtive gestures of an occupant of an automobile do

not give rise to an articulable suspicion suggesting criminal activity. '" Id. at

47 (quoting Schlosser, 774 P.2d at 1137).

Although commending the candor of the trooper, noting he hadn't

testified "that he feared he was in danger but rather only that he was taking

steps to make sure he could not be threatened," the Lund Court concluded the

record did "not establish a specific particularized basis for an objectively

reasonable belief that the defendants were armed and dangerous." Id. at 48. It

accordingly invalidated the search and suppressed the cocaine.

In Gamble, Irvington police officers responded to a high-crime

neighborhood on a dispatch report of "shots fired" close to 11:00 p.m. 218

N.J. at 419. Shortly thereafter, they "received another dispatch in response to

an anonymous 9-1-1 call reporting an individual seated in a tan van with a gun

A-2297-21 33 in his lap." Ibid. The caller provided no other information. Ibid. On seeing

the van in the area reported, the officers pulled behind it and shone a spotlight

into the interior, setting off a scramble inside. Ibid. Approaching the van with

their guns drawn, they saw "the occupants moving frantically inside the

vehicle, 'as if trying to hide something.'" Ibid.

The front-seat passenger complied with the officers' order to step out of

the van. Id. at 420. The driver began to do so as well but then lunged back

into the driver's seat. Ibid. Fearing the driver "might be trying to retrieve a

weapon," the officer struck the driver and pulled him out of the van. Ibid.

When a protective frisk of the occupants did not reveal a weapon, one of the

officer's returned to the driver's door and saw "the handle of a handgun

protruding from the van's middle console 'as he entered the vehicle.'" Ibid.

Before he could retrieve it, however, he had to chase down the driver, who had

attempted to flee when the officer walked back to the van. Ibid.

The Court held the anonymous calls, at least one a 911 call identifying

the color and type of vehicle as well as its approximate location, the lateness

of the hour, the high-crime area, and the officers' ability to see into the car

with their spotlight, which revealed the occupants moving around as if trying

to hide something, provided reasonable and articulable suspicion "sufficient to

A-2297-21 34 justify an investigatory stop." Id. at 431. "In addition to the totality of the

circumstances that warranted the investigatory stop," the Court found the

"[d]efendant's retreat to the driver's seat as [the officer] got closer created a

reasonable suspicion that defendant was dangerous and could gain immediate

access to a weapon, specifically the handgun that had been reported in the

9-1-1 call," justifying a protective frisk. Id. at 432.

Finally, and most important for our purposes, the Court found the

"defendant's conduct, enhanced, rather than allayed, the officers' concern that

there was a weapon in the van." Id. at 432. Judge Cuff, writing for the Court,

explained "[t]he officers' reasonable suspicion that there was a gun in the van

that would be within easy reach when defendant and his passenger returned to

the vehicle, and the officers' reasonable concerns for their safety and the safety

of others did not evaporate when they failed to find a weapon on either

defendant or his passenger" given their conduct after the stop. Id. at 432-33.

A-2297-21 35 Applying the rationale of Maryland v. Buie 9 and State v. Davilla10 permitting

police to execute a protective sweep inside a home when they have reasonable

articulable suspicion that an individual dangerous to them lurks inside, the

Court held police may likewise execute a "cursory" sweep of a motor vehicle

for weapons "limited in scope to the location where the danger may be

concealed" before allowing the occupants to return to their car. Id. at 433.

Applying that standard to the facts, the Court in Gamble found the officer's

"narrowly confined visual sweep of the passenger compartment, which

revealed a handgun protruding from the center console, was permissible."

Ibid.

Applying those principles here provides no basis for overturning the trial

court's finding that the 911 call provided the officers a reasonable basis for an

investigative stop of defendant's car, although the facts certainly present a

9 Maryland v. Buie, 494 U.S. 325, 332 (1990) (applying the rationale of Michigan v. Long, which "[i]n a sense, . . . authorized a 'frisk' of an automobile for weapons," to permit a protective sweep inside a home when officers executed an arrest warrant). 10 State v. Davila, 203 N.J. 97, 102 (2010) (applying the rationale of Buie to permit a protective sweep "when (1) police officers are lawfully within private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger"). A-2297-21 36 much closer case than in Gamble. The anonymous 911 caller's description of

the suspect as a "light-skinned, bald male" was vague, and a report that a

person possesses a gun does not present the same public-safety concerns as a

report of "shots fired." Nevertheless, we're satisfied the additional information

about the color and make of the car, as well as its location, gave the officer's

sufficient information to undertake an investigative stop. Id. at 429

(explaining when 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. Matthews, 398 N.J. Super. 551,

559 (App. Div. 2008) (holding anonymous tip at 2:30 a.m. "that someone in a

burgundy Durango with a temporary tag was flashing a gun" supported "an

investigatory stop to permit the police to inquire as to what the occupants of

the Durango were doing").

We are, however, far less sanguine than the trial court about the first

officer drawing his weapon and pointing it at defendant as the officer exited

his patrol car. The officers were, of course, "authorized to take such steps as

were reasonably necessary to protect their personal safety and to maintain the

status quo during the course of the stop." United States v. Hensley, 469 U.S.

A-2297-21 37 221, 235 (1985). The threat to police officers posed by motorists armed with

guns is real and seemingly ever increasing. See State in the Int. of H.B., 75

N.J. 243 (1977). But the circumstances matter. Unlike in Gamble, this stop

did not take place late at night in a high-crime area following one report of

shots fired and another on an individual with a gun. While the anonymous

caller reported seeing a man with a gun, there was no report of a shooting, and

the stop took place on a Saturday afternoon in broad daylight in an area not

noted for crime.

Although we are not prepared to say that the officer having drawn his

service weapon at the inception of this stop converted it from an investigative

detention to a de facto arrest, see Dickey, 152 N.J. at 478 (noting "an

investigative stop becomes a de facto arrest when 'the officers' conduct is more

intrusive than necessary for an investigative stop'") (quoting United States v.

Jones, 759 F.2d 633, 636 (8th Cir. 1985)), requiring probable cause, State v.

Basil, 202 N.J. 570, 584-86 (2010), "the degree of fear and humiliation that the

police conduct engenders" is a factor in distinguishing an investigative stop

from an arrest. Dickey, 152 N.J. at 479 (quoting United States v. Bloomfield,

40 F.3d 910, 917 (8th Cir. 1994) (quoting United States v. Lego, 855 F.2d 542,

543, 544-45 (8th Cir. 1988) (noting "it would be an unhappy day for us all if

A-2297-21 38 police officers could point a weapon at any individual that they had an

'articulable reasonable suspicion' of engaging in criminal conduct"))).

The fear factor is particularly problematic here where there is no dispute

that two police cars coming from different directions, one with its overhead

lights on, converged on a car lawfully parked on a residential street occupied

by a man, a woman and a young child in the middle of the day, boxing them in,

and the officers, one with his gun drawn, leapt from their cars and immediately

shouted commands at them to show their hands. The officers, both of whom

are white, testified defendant and his passenger, both of whom are Black, were

obviously "startled, scared, and surprised" at those events, twisting around in

their seats to try to understand what was happening. And the State's sole basis

for the protective frisk of the driver, and the subsequent search of the car for

weapons, was the anonymous 911 call and defendant's failure to fully comply

with the order to show his hands as he tried to get out of the car in the few

seconds it took the second officer to get to his door.

Those facts, which are undisputed, allow the defense to make a credible

argument that it was the officers' actions — prompting fear and confusion in

defendant, as they reasonably might in most citizens — that resulted in the

startled movements of defendant and his passenger, which the officers then

A-2297-21 39 relied on to frisk defendant and search his car, especially as defendant was not

otherwise uncooperative.

We are, of course, mindful, that this was "a gun call," but we disagree

with the trial court that fact standing alone makes the officer's act of drawing

his service weapon at the inception of this stop reasonable or otherwise renders

circumstances usually considered under the totality of the circumstances

irrelevant. As the United States Supreme Court has made clear, there is no

"firearm exception" to the Fourth Amendment's warrant requirement. J.L., 529

U.S. at 272; State v. Goree, 327 N.J. Super. 227, 245 (App. Div. 2000)

("declin[ing] to embrace a 'man with a gun exception' to the rule of

individualized reasonable suspicion to 'stop and frisk'").

The Court has acknowledged that "[f]irearms are dangerous," explaining

that's why Terry allows for "protective police searches on the basis of

reasonable suspicion rather than demanding that officers meet the higher

standard of probable cause." J.L., 529 U.S. at 272. But allowing police

officers to conduct investigative detentions "on the basis of bare-boned tips

about guns," Justice Ginsberg wrote in J.L., "would enable any person seeking

to harass another to set in motion an intrusive, embarrassing police search of

A-2297-21 40 the targeted person simply by placing an anonymous call falsely reporting the

target's unlawful carriage of a gun." Ibid.

The point is that the usual rules of conducting car stops are not altered

because an anonymous 911 caller has reported, falsely as it appears here, that

the driver flashed a gun. The court must still "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." State v.

Davis, 104 N.J. 490, 504 (1986). And it's axiomatic that the court must

evaluate each separate step of the encounter, here the stop, the frisk, and the

protective sweep of the car, to ensure the officers possessed reasonable and

articulable suspicion for each one. See State v. Chisum, 236 N.J. 530, 546

(2019) (noting a "detention must be reasonable both at its inception and

throughout its entire execution") (quoting State v. Coles, 218 N.J. 322, 344

(2014)).

We agree with the trial court that the reason for this stop — reasonable

suspicion the driver was in possession of a gun based on the anonymous 911

call — justified the officers having defendant step out of the car and subject

himself to a protective pat down for weapons. Our Supreme Court has

A-2297-21 41 acknowledged there are instances where "the right to conduct a protective

search flows directly from the basis for the investigatory stop ," harkening back

to Justice Harlan's concurrence in Terry, stating "the right to frisk must be

immediate and automatic if the reason for the stop is, as here, an articulable

suspicion of a crime of violence." State v. Thomas, 110 N.J. 673, 680 (1988)

(quoting Terry, 392 U.S. at 33 (Harlan, J. concurring)).

Although there was no suspicion of violent crime here, the Court has

acknowledged that "courts are more likely to approve of an 'automatic'

protective search when officers, before they even approach the suspect, have a

specific and objectively credible reason to believe the suspect is armed ." Ibid.

There is, however, no such thing as an "automatic" car search based on an

anonymous 911 call about a man with a gun. See State v. Robinson, 228 N.J.

529, 546 (2017) (noting the Court upheld a protective sweep of a car "[i]n the

distinct factual setting of Gamble," but finding the facts insufficient to support

the same type of sweep in Robinson).

The question in this case is whether the officers' failure to find a gun on

defendant when they frisked him allayed, or should have reasonably allayed,

their concerns that defendant was armed and dangerous. See Matthews, 398

N.J. Super. at 559-60 (holding a dispatch of an anonymous call of a man in a

A-2297-21 42 car with a gun justified an investigative stop but not a pat down search of the

driver and passengers or a search of the car). In other words, following the pat

down of defendant, did the officers still possess reasonable and articulable

suspicion that he "was dangerous and could gain immediate access to a

weapon, specifically the handgun that had been reported in the 9-1-1 call,"

thereby permitting them to sweep the interior of the car for weapons. Gamble,

218 N.J. at 432. Viewing the totality of the circumstances, the record does not

establish "a specific and particularized" basis for an objectively reasonable

belief that defendant was dangerous to the officers after they patted him down.

See Lund, 119 N.J. at 48.

The facts here are very different from those in Gamble. As we've

already noted, this stop was not conducted at night in a high crime area. It was

conducted mid-day in an urban, residential neighborhood. Neither officer

testified about any crime in the area. Importantly, there'd been no report of

anyone hearing shots fired, which, of course, had heightened the concern of

the officers in Gamble about the second 911 report of a gun in the van — and

their failure to find it after frisking the van's occupants. In addition, the

officers in Gamble testified seeing "the occupants moving frantically inside the

A-2297-21 43 vehicle, 'as if trying to hide something,'" as the officers approached, a far cry

from what the officers testified they witnessed here. Gamble, 218 N.J. at 419.

Indeed, the officers in Gamble had to subdue the driver after he initially

tried to return to the driver's seat and then tried to flee after being patted down

for weapons. Here, defendant was completely cooperative when the second

officer asked him to step out and allow the officer to pat him down. He made

no effort to avoid the officers, duck into his car or flee as did the defendant in

Gamble.

The dash cam video in evidence shows the second officer conducted his

pat down of defendant inside the driver's open door. In other words,

defendant's hands were on the roof of the car over the driver's seat with the

driver's door open, allowing access to the interior. The officer continued to

speak with defendant there, not moving him away from the car until the officer

started his search. The passenger, although directed to stand on the sidewalk

holding her child, was not even patted down. The officers also didn't insist on

seeing the defendant's driver's license or identification to relay to dispatch,

which could have searched the usual databases for information on defendant.

See Robinson, 228 N.J. at 537 (describing National Crime Information Center

A-2297-21 44 (NCIC) database search performed by dispatch and its access to the Judiciary's

Automated Complaint System (ACS) for warrants).

Neither officer testified they feared they were in danger from defendant

after the first officer holstered his weapon when told by the second officer

"there's a kid in the car." And although the first officer asked dispatch to "hold

the air" for any unnecessary transmissions as he exited his patrol car, he

canceled that hold a minute or two later, explaining he did so "after everything

was safe." The second officer, after patting down defendant and explaining

why they stopped him, told defendant: "understand that my partner here, we

gotta do what we gotta do. It's just for our safety. Now that we know we're

safe, he put his gun away and everybody is gonna remain calm." Immediately

after declaring the officers safe, the second officer asked defendant to "please

sit over here on the curb, right, and relax for a second, so I can check your car

and make sure there's nothing in there."

The trial judge did not refer to those facts in deciding whether the

officers had a specific and particularized basis for an objectively reasonable

belief that defendant was dangerous to the officers and could gain immediate

access to a gun in the car under the totality-of-the-circumstances test. If the

officers had a specific and particularized basis to believe defendant continued

A-2297-21 45 to be dangerous to them after their pat down did not reveal a weapon, they did

not testify to it.

As the Court noted in Robinson, "[t]he protective sweep exception . . .

does not turn solely on the potential presence of a weapon in a vehicle." 228

N.J. at 548. It is addressed to "the imminent danger to police when a driver or

passenger will be permitted access to a vehicle that may contain a weapon or

may be in a position to evade or overpower the officers at the scene." Ibid. As

the Court has many times admonished, these cases are exquisitely fact-

sensitive and turn on a careful analysis of the entire picture, that is, the totality

of the circumstances the police confronted. See State v. Nishina, 175 N.J. 502,

512 (emphasizing a court must take into account "the whole picture" (quoting

United States v. Cortez, 449 U.S. 411, 417 (1981))).

Here, however, both the State and the judge focused almost exclusively

on only one fact, defendant's failure to raise both his hands in the first

moments of the stop, before the pat down, with the judge remarking that "you

can't fault the officers" for defendant's failure to show his hands and instead

"reach for something else when they arrived." But leaving aside that

defendant's failure to raise both his hands occurred in the several seconds after

his car was blocked in by two police cruisers, one with flashing overhead

A-2297-21 46 lights, and one of the officers pointing a gun at him, the Court has held — in

the context of a protective sweep of an automobile — that "furtive gestures

may, in conjunction with other objective facts, justify a Terry search, but

ordinarily" will not themselves "'give rise to an articulable suspicion

suggesting criminal activity.'" Lund, 119 N.J. at 47 (quoting Schlosser,

774 P.2d at 1137).

Here, not only was defendant's immediate failure to raise his right hand

the only objective fact the officers identified, beyond the anonymous 911 call,

to raise their suspicion, 11 neither officer testified to seeing defendant engage in

any furtive gesture with that hand. Both testified unequivocally that they

simply could not see defendant's right hand, which he held "at his side along

the side of the driver seat." The first officer, who testified he could see nearly

the entire interior of the car as he approached, did not testify he saw defendant

appear to hide something between the front seats or pass anything to the

passenger seated behind him, and the second officer testified he only "assumed

that they were passing something to one another," given her position in the car

and defendant's failure to raise both hands. The officers simply failed to

11 The second officer speaking with a colleague after a full search of the car is recorded on the dash cam agreeing "there's no legitimate reason to stop this car" outside the 911 call. A-2297-21 47 provide any basis beyond the 911 call for an objectively reasonable belief that

defendant's car contained a gun that could be used against them. Viewing the

totality of the circumstances confronting the officers, it is clear this case is not

The judge found the officers would have

engaged in . . . unreasonable conduct, risking their lives by letting the two people who matched the description of a 911 call get back into a car that they were originally seen sitting in, consistent with that 911 call, that was a male brandishing a gun against another female, and let those people drive away without checking that car. [12]

We do not agree. As Judge King wrote over twenty years ago, "these

anonymous-tip gun and drug cases, especially gun cases, are close and

difficult, wafting about in a 'no-man's land' of nuances." Goree, 327 N.J.

Super. at 244. Applying the standard for the protective sweep of a car the

Supreme Court laid down in Lund and Gamble, we conclude the search of this

car was unconstitutional. Although we have no doubt about the good faith of

12 The 911 caller did not say there was a passenger in the car or that there was "a male brandishing a gun" against a woman. The caller reported only that the light-skinned, bald "guy he just pulled a gun out." When the officers, after frisking defendant but before searching the car, contacted dispatch to ask specifically what the caller had reported, the dispatcher recalled a third-party caller said a "male, light-skinned, bald, raised a gun at a female or a passerby and he wants to remain anonymous." A-2297-21 48 these officers, and know, as Justice O'Hern wrote in Lund, "how hard it is for

an officer on patrol to make split-second decisions that have to be analyzed

months, if not years, later on a constitutional dimension," 119 N.J. at 49,

validating this search would allow the protective sweep of a car based only on

a bare-boned anonymous 911 call about a man with a gun, something our

courts have never permitted.

Finally, even were we not convinced that the protective sweep here was

unconstitutional, which we are, we would still invalidate this search as

exceeding the legitimate scope of a protective sweep. See State v. Cohen, 254

N.J. 308, 320 (2023) (noting "a search which is reasonable at its inception may

[nonetheless] violate the Fourth Amendment by virtue of its intolerable

intensity and scope") (quoting Terry, 392 U.S. at 18). The law has long been

settled that "the investigative methods employed [in a Terry stop] should be

the least intrusive means reasonably available to verify or dispel the officer's

suspicion in a short period of time." State v. Privott, 203 N.J. 16, 31 (2010)

(quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). In upholding a

"narrowly confined visual sweep of the passenger compartment," the Court in

Gamble held a protective sweep of a car "must be cursory and limited in scope

to the location where the danger may be concealed." 218 N.J. at 433.

A-2297-21 49 The trial court never referred to this search as a protective sweep. When

asked by defense counsel whether the court had ruled the officers "could look

in the entirety of the car even in places where a gun could potentially not have

been, such as the map pocket," the judge noted there had been no testimony

about "how tight this map pocket [was]." Nevertheless, the judge pronounced

himself satisfied that whether it was too tight to contain a pen or lose enough

to hold multiple pairs of shoes, the officer's search of it was reasonable

because "it's a pocket, it's used to store something."

We disagree the officers could validly search areas of the interior of a

car that were not reasonably capable of storing the gun for which they were

searching. The Court in Gamble specifically limited the scope of a protective

sweep "to the location where the danger may be concealed." 218 N.J. at 433.

Although we obviously cannot know whether the map pocket could reasonably

have stored a gun, the dash cam video and the testimony of the officer

conducting the sweep make clear this search was not the "narrowly confined

visual sweep of the passenger compartment" the Court upheld in Gamble.13

13 The State argues on appeal that the drugs discovered in the map pocket "were in plain view for constitutional purposes and thus subject to seizure

A-2297-21 50 The dash cam video shows the second officer beginning his "sweep" by

picking a jacket off the back seat of the car and seemingly searching the

pockets, not simply patting them or testing the weight of the jacket to gauge

whether it could contain a gun. See Robinson 228 N.J. at 539 (recounting the

officer moving a purse during the protective sweep to check the seat under it

and feeling "a very heavy object" matching "the outline of a gun"). Further the

officer testified he returned the passenger's bag to her only after he "searched

it" and found "there was nothing in it." The Court in Gamble limited the car

search authorized under the protective-sweep exception to the warrant

requirement to "a protective frisk of the passenger compartment." Id. at 431-

32. The State failed to carry its burden here that the scope of the officer's

protective sweep was "cursory and limited . . . to the location where the danger

may be concealed." Id. at 433.

Because we conclude that neither search conducted in this case met

constitutional requirements, we reverse the orders denying defendant's

suppression motions and remand for further proceedings consistent with this

opinion. We do not retain jurisdiction.

without a warrant," relying on State v. Hamlett, 449 N.J. Super. 159 (App. Div. 2017). Hamlett involved the search of a center console for driving credentials. We do not accept it as instructive here. A-2297-21 51 Reversed and remanded.

A-2297-21 52