State of New Jersey v. Sincere Daniels

• Court: New Jersey Superior Court Appellate Division
• Decided: August 1, 2024
• Docket: A-2388-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2388-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SINCERE DANIELS,

Defendant-Appellant. _______________________

Submitted March 18, 2024 – Decided August 1, 2024

Before Judges DeAlmeida and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 22-06-1475.

Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Nadine Kronis, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Sincere Daniels appeals from an order denying his motion to

suppress evidence seized pursuant to a warrantless search. Following our review

of the arguments and applicable law, we conclude the trial court erred in denying

defendant's motion to suppress because the totality of the circumstances does

not establish a reasonable articulable suspicion for the investigatory stop of

defendant. We reverse the order denying defendant's motion to suppress the

evidence, vacate his guilty plea, and remand for an evidentiary hearing.

I.

No evidentiary hearing was held. Therefore, we recite the facts as

represented in the parties' submissions and by the trial court from its in-court-

viewing of the body worn camera footage of Newark Detective Steven Resendes.

The parties stipulated to the facts stated in the incident report prepared by

Resendes.

On March 15, 2022, at approximately 4:15 p.m., a lieutenant from the

Criminal Intelligence section assigned Resendes to investigate an anonymous

tip from the Newark Police Department's Gun Stoppers hotline. The lieutenant

relayed that a tipster provided information that at Columbia Avenue and South

Orange Avenue, "a black male wearing a black sweatsuit and grey sneakers

ha[d] a gun on him" and that "the male was standing near a male who [was]

A-2388-22 2 wearing a grey sweatsuit." No information was provided concerning the tipster

or how the lieutenant obtained the information.

In three unmarked cars, Newark officers dressed in plainclothes and

displaying police badges responded to that intersection. In his report, Resendes

reported that he and his partner approached the intersection of Columbia Avenue

and South Orange Avenue and saw a group of males congregated in front of 773

South Orange Avenue. A black male wearing a black sweatsuit and gray

sneakers, later identified as defendant, stood near the other male wearing a grey

sweatsuit. According to the report, while traveling westbound on South Orange

Avenue, Resendes saw the male in the grey sweatsuit "tap" defendant on the arm

while looking at his police car. Resendes wrote that while traveling toward

Cedar Avenue, defendant turned and faced his police car and "immediately"

turned his back to the car. As Resendes approached Cedar Avenue, defendant

was "still looking" at the police car while holding the front waistband of his

sweatpants.

As three other officers were traveling westbound on South Orange Avenue

from Columbia Avenue, Resendes radioed: "He's right there on the right."

According to the report, as Resendes made a U-turn at the intersection of South

Orange Avenue and Cedar Avenue, defendant began to walk toward the street.

A-2388-22 3 Resendes pulled his car into the parking lot of 773 South Orange Avenue, and

defendant started walking toward the southbound sidewalk of South Orange

Avenue while looking at Resendes's police car with his hand in the front

waistband.

Four officers exited their police car and yelled: "Newark Police stop."

Defendant ran with his cellphone in one hand and his other hand remained in his

front waistband towards Resendes and his partner. As defendant approached the

northbound sidewalk of South Orange Avenue, he fell to the ground, dropped

his cellphone and kept his hand in the front waistband.

The report stated another detective "immediately grabbed" defendant's

right arm and placed it around his back. At the same time, a different detective

attempted to grab defendant's left hand from under his body and shouted the

Newark police code word for "Gun." Resendes assisted the second detective in

lifting defendant's left arm and placed it behind defendant's back. Detectives

picked up defendant off the ground and Resendes retrieved a ".45 caliber Kimber

handgun" loaded with ammunition from defendant's waistband. Defendant was

arrested and placed in the back of the unmarked vehicle. A computer search

revealed the handgun was reported stolen from South Carolina.

A-2388-22 4 A grand jury indicted defendant on charges of second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b)(1); fourth-degree obstructing the

administration of law, N.J.S.A. 2C:29-1(a); fourth-degree resisting arrest,

N.J.S.A. 2C:29-2(a)(2); and third-degree receiving stolen property, N.J.S.A.

2C:20-7(a).

Defendant moved to suppress the evidence obtained during the stop. He

challenged whether the officers responding to the anonymous tip had a

reasonable suspicion of criminal activity to justify the stop pursuant to Terry v.

Ohio, 392 U.S. 1 (1968). Defendant argued that the anonymous tipster was not

reliable and provided only a description of clothing worn by defendant and

another male. He also relied on State v. Tucker, 136 N.J. 158, 169 (1994),

arguing that flight alone is not ample evidence of reasonable suspicion.

In a written opinion, the court denied defendant's motion, finding that the

totality of the circumstances, based on the officers' training and experience,

which was not included within the report, as well as the anonymous tip and

defendant's actions, justified a reasonable suspicion to stop and frisk defendant.

At the outset, the court rejected the State's argument that the plain view

exception to warrantless searches applied. The court then analyzed the veracity,

reliability, and the basis of knowledge of the anonymous tip. The court citing

A-2388-22 5 State v. Matthews, 398 N.J. Super. 551, 559 (App. Div. 2008), reasoned that

"unlike a tip from an ordinary citizen, an anonymous tip alone generally lacks

the veracity, reliability, and basis of knowledge needed for an officer to have

the reasonable suspicion required for a stop." The court concluded that tip was

unreliable because it provided information about defendant's appearance and

location and no other information that explained why defendant possessed a gun.

Nevertheless, the court found that under the totality of the circumstances,

the officers had a reasonable suspicion of criminal activity because "other

evidence arose before the seizure began [that] corroborate[d] the tip." In

particular, after defendant was alerted of the officers' presence, he began

walking away with his hand in the front waistband of his sweatsuit. The court

determined that action "suggested defendant was trying to prevent an object too

heavy for a waistband to constrain from falling out of the bottom of his

sweatpants." That conclusion, however, was not stated in the police report.

Following the denial of the motion, defendant pleaded guilty to second-

degree unlawful possession of a weapon and was sentenced in accordance with

the plea agreement to a four-year prison term with one year of parole ineligibility

pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).

A-2388-22 6 On appeal, defendant argues the trial court erred in denying his motion to

suppress because the police lacked a reasonable and articulable suspicion for the

stop.

Our review of the denial of a suppression motion is limited. State v.

Handy, 206 N.J. 39, 44 (2011). We apply our familiar deferential standard of

review. State v. Nyema, 249 N.J. 509, 526 (2022). "'[A]n appellate court

reviewing a motion to suppress must uphold the factual findings underlying the

trial court's decision so long as those findings are supported by sufficient

credible evidence in the record.'" State v. Ahmad, 246 N.J. 592, 609 (2021)

(alteration in original) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). In

contrast, the trial court's interpretation of the law and the legal "'consequences

that flow from established facts'" are reviewed de novo. Ibid. (quoting State v.

Hubbard, 222 N.J. 249, 263 (2015)); State v. Tiwana, 256 N.J. 33, 40 (2023).

The Fourth Amendment to the United States Constitution and Art. I § 7 of

the New Jersey Constitution protect the right of individuals from unreasonable

searches and seizures. State v. Smart, 253 N.J. 156, 164 (2023) (quoting Nyema,

249 N.J. at 527). The parties do not dispute that an investigatory stop occurred.

The Terry stop, or an investigative stop, "involves a relatively brief

detention by police during which a person's movement is restricted." State v.

A-2388-22 7 Goldsmith, 251 N.J. 384, 399 (2022); see also State v. Rosario, 229 N.J. 263,

272 (2017). An investigative stop or detention "is constitutional only '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.'" Elders, 192 N.J. at 247 (quoting State v. Rodriquez, 172 N.J. 117,

126 (2002)).

The State has the burden to establish that a stop was valid. State v. Mann,

203 N.J. 328, 337-38 (2010); State v. Pineiro, 181 N.J. 13, 19-20 (2004). The

standard of reasonable suspicion is less rigorous than probable cause to warrant

an arrest. Terry, 392 U.S. at 26-27; State v. Shaw, 213 N.J. 398, 410 (2012). If

there was no reasonable suspicion of criminal activity to justify the stop,

evidence discovered because of the stop is subject to exclusion. State v. Chisum,

236 N.J. 530, 546 (2019).

In considering whether the officer had a reasonable suspicion to stop

defendant, we begin our review of the anonymous tip provided to the Gun

Stoppers hotline. "In determining the reliability of a tip, a court must consider

an informant's 'veracity,' 'reliability,' and 'basis of knowledge.'" State v. Stovall,

170 N.J. 346, 362 (2002) (quoting Alabama v. White, 496 U.S. 325, 328-29

(1990)). To determine the informant's "basis of knowledge," "the nature and

A-2388-22 8 details revealed in the tip may imply" that the knowledge of the criminal activity

comes from a "trustworthy source." Stovall, 170 N.J. at 362. "In determining

whether reasonable suspicion exists, a court must consider 'the totality of the

circumstances-the whole picture.'" Id. at 361 (internal citations omitted). The

reliability of the tip is part of the totality of the circumstances analysis. Id. at

361-62.

In that regard, our Supreme Court has held that an anonymous tip without

more "is rarely sufficient to establish a reasonable articulable suspicion of

criminal activity." Rodriquez, 172 N.J. at 127 (internal citation omitted). "An

'anonymous tip standing alone cannot justify a Terry stop.'" State v. Richards,

351 N.J. Super. 289, 303-04 (App. Div. 2002). "To justify action based on an

anonymous tip, the police in the typical case must verify that the tip is reliable

by some independent corroborative effort." Rodriquez, 172 N.J. at 127 (citing

White, 496 U.S. at 329-30). Here, the trial court found the anonymous tip was

based on a description of the clothing worn by defendant and another male with

no other facts. Accordingly, the court correctly ruled the anonymous tip was

unreliable because it provided no explanation or basis of knowledge regarding

defendant's appearance, location, and that he had a gun. Id. at 132-33.

A-2388-22 9 We conclude reasonable suspicion did not exist under the totality of the

circumstances for the investigatory stop. As noted above, defendant was

stopped based solely on an unreliable anonymous tip. With nothing more than

the anonymous tip, Resendes did not have "an articulable [and reasonable]

suspicion that criminal activity had occurred or would shortly occur." State v.

Davis, 104 N.J. 490, 505 (1986).

In considering the video and the police report, the court found that

defendant's avoidance of a "possible" police encounter when he was alerted to

police presence and his grip on his waistband was sufficient evidence to

corroborate the anonymous tip and establish reasonable suspicion. The State

contends that there was sufficient corroboration based on the other male alerting

defendant, followed by defendant walking away holding his waistband.

We disagree with the court's finding and the State's contention because

the combination and sequence of facts does not provide a reasonable articulable

basis for the stop. The police report did not state that Resendes saw the presence

of a gun or that defendant was armed and dangerous. The fact that a group of

males were "congregating" in front of a building does not suggest any unusual

or nefarious activity. On the record before us, the totality of the circumstances

A-2388-22 10 lacked an objectively reasonable and articulable basis for the investigatory stop

of defendant and seizure of the handgun.

Even if the court considered defendant's flight after the police identified

themselves and directed him to stop, the court did not consider and apply the

factors to determine whether there was a "significant attenuation" between the

unconstitutional stop, the flight by defendant from police, and the seizure of the

handgun from defendant to purge the unlawful stop. State v. Williams, 410 N.J.

Super. 549, 552. (App. Div. 2009); Shaw, 213 N.J. at 415.

Lastly, we note the trial court made two credibility determinations and

two factual findings regarding reasonable suspicion based on a review of the

police report and video recording. In that regard, the court found (1) the

suggestion that "defendant was trying to prevent an object too heavy for a

waistband to constrain from falling out of the bottom of his sweatpants" and

reasonable suspicion was "based on the officers' knowledge and experience."

Those facts were not presented by the State in the police report or testimony.

"We ordinarily will not disturb the trial court's factual findings unless they are

'so clearly mistaken "that the interests of justice demand intervention and

correction."'" Goldsmith, 251 N.J. at 398 (quoting State v. Gamble, 218 N.J.

412, 425 (2014)). In this matter, factual findings were made without the court

A-2388-22 11 having the opportunity to hear and see witnesses. See State v. Parker, 459 N.J.

Super. 26, 30 (App. Div. 2019). We, therefore, do not give deference to the

court's factual findings.

We vacate the January 27, 2023 order denying defendant's suppression of

the handgun and remand the matter for a full evidentiary hearing. On remand,

we direct that a different judge conduct the hearing because the judge who

decided defendant's motion has already engaged in weighing the evidence and

rendered an opinion on the credibility of the defendant and officers .

Vacated, reversed, and remanded. We do not retain jurisdiction.

A-2388-22 12