NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1442-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT O. GOODSON, a/k/a BOBBY EARLY, and BOBBY GOODSON,
Defendant-Appellant. _________________________
Argued October 30, 2019 – Decided December 3, 2019
Before Judges Koblitz, Whipple and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 16-11-0780.
Zachary G. Markarian, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Zachary G. Markarian, of counsel and on the brief).
Milton S. Leibowitz, Special Deputy Attorney General/ Acting Assistant Prosecutor, argued the cause for respondent (Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney; Milton S. Leibowitz, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Robert O. Goodson appeals from his October 27, 2017
conviction after his motion to suppress the evidence was denied. Because the
facts track very closely with those in State v. Rosario, 229 N.J. 263 (2017), we
reverse, suppressing the evidence found in defendant's car and home, vacating
his guilty plea, and remanding for further proceedings.
I. Facts Developed at the Suppression Hearing.
On August 6, 2016, Plainfield Detective Pierre McCall and three other
officers were traveling in a police SUV, which, although unmarked, was a "well
known police vehicle," equipped with lights and sirens. At approximately 9:00
pm, on the "hot night," the officers turned onto Sumner Avenue, a narrow
residential street known to law enforcement as a "high crime narcotic area."
Immediately after turning, they "observed a brown Honda parked on the
west side of the street, facing southbound." The Honda was lawfully parked
outside of defendant's residence and was "occupied by a black male," later
identified as defendant, who was "sweating heavily." McCall testified that as
A-1442-17T4 2 the officers passed defendant's car, "it appeared that he leaned back to shield
himself out of our view." The officers then "backed up alongside [defendant's
car]."
McCall and another officer shined their "really bright" LED flashlights
inside, and McCall asked defendant "his reason for being in the area."
Defendant told the officers that he came out to the car to retrieve a tablet.
McCall "believed there was more to it" because he could not see the tablet from
where he was seated in the police SUV, so he stepped out of the SUV and
approached defendant's driver's side door, shining his flashlight into the car.
McCall asked defendant his address and defendant responded that he lived
where he was parked.
McCall could see a clear plastic baggie containing a green pill on the
driver's side door armrest. He reached inside the car to retrieve the pill and
ordered defendant out. As defendant exited, another officer smelled marijuana
and asked defendant if he had any marijuana. Defendant replied he had
marijuana in his pocket. Meanwhile, a third officer searched the car, finding a
container of pills and heroin.
A-1442-17T4 3 McCall placed defendant under arrest, handcuffed him, read him the
Miranda1 warnings, and asked if defendant would consent to a search of his
home. Defendant refused to provide consent. McCall then informed defendant
he would obtain a warrant.
Another police SUV arrived containing four additional officers.
Defendant's child's grandmother left the home, and an officer began to question
her. Defendant then said he did not want anyone else involved and would
consent to a search of the home.
Because defendant had a foot injury and thus did not want to accompany
officers to his third-floor apartment, he provided them with his keys and
instruction. The officers recovered additional narcotics, paraphernalia, and a
handgun. Defendant was subsequently indicted for various drug charges as well
as illegal possession of the handgun.
Defendant pled guilty pursuant to a negotiated plea agreement to second-
degree possession of a firearm in the course of committing a drug offense,
N.J.S.A. 2C:39-4.1(a), and was sentenced on October 27, 2017, to eight years in
prison with a forty-eight month parole disqualifier.
Defendant raises the following issues on appeal:
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-1442-17T4 4 POINT I: THE COURT SHOULD HAVE APPLIED THE SUPREME COURT'S DECISION IN STATE V. ROSARIO AND GRANTED THE MOTION TO SUPPRESS BECAUSE MR. GOODSON WAS DETAINED WITHOUT REASONABLE SUSPICION AFTER OFFICERS SAW HIM SITTING IN A LAWFULLY PARKED VEHICLE OUTSIDE OF HIS HOME SWEATING ON A HOT SUMMER EVENING.
A. MR. GOODSON WAS DETAINED WHEN OFFICERS STOPPED THEIR SUV IN THE ROAD ALONGSIDE HIS PARKED VEHICLE AND QUESTIONED HIM WHILE SHINING FLASHLIGHTS AT HIM.
B. OFFICERS LACKED REASONABLE ARTICULABLE SUSPICION OF CRIMINAL ACTIVITY TO JUSTIFY THE INVESTIGATIVE DETENTION OF MR. GOODSON.
C. BECAUSE THE INVESTIGATIVE DETENTION WAS UNLAWFUL AND NO EXCEPTION TO THE EXCLUSIONARY RULE APPLIES, THE CONTRABAND SUBSEQUENTLY DISCOVERED BY THE OFFICERS MUST BE SUPPRESSED.
POINT II: BECAUSE MR. GOODSON WAS ARRESTED, HANDCUFFED, INITIALLY REFUSED CONSENT, AND DENIED GUILT, AND THERE WAS AN OVERWHELMING POLICE PRESENCE OUTSIDE HIS HOME WHEN POLICE REPEATEDLY REQUESTED CONSENT, MR. GOODSON'S CONSENT WAS NOT VOLUNTARY.
POINT III: A REMAND FOR RESENTENCING IS REQUIRED BECAUSE THE JUDGE FAILED TO INDIVIDUALLY CONSIDER MR. GOODSON AT
A-1442-17T4 5 SENTENCING, AND INSTEAD APPLIED A BLANKET POLICY OF FINDING AGGRAVATING FACTOR NINE IN EVERY CASE.
II. Legal Standards.
"An appellate court reviewing a motion to suppress evidence in a criminal
case must uphold the factual findings underlying the trial court's decision,
provided that those findings are 'supported by sufficient credible evidence in the
record.'" State v. Boone, 232 N.J. 417, 425–26 (2017) (quoting State v. Scriven,
226 N.J. 20, 40 (2016)). It does so "because those findings 'are substantially
influenced by [an] opportunity to hear and see the witnesses and to have the
"feel" of the case, which a reviewing court cannot enjoy.'" State v. Gamble, 218
N.J. 412, 424–25 (2014) (alteration in original) (quoting State v. Johnson, 42
N.J. 146, 161 (1964)). We owe no deference to conclusions of law, which we
review de novo. State v. Watts, 223 N.J. 503, 516 (2015).
The Fourth Amendment of the United States Constitution, and Article I,
Paragraph 7 of the New Jersey State Constitution, provide that "[t]he right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated." U.S. Const. amend.
IV; N.J. Const. art. I, ¶ 7. "Warrantless searches and seizures presumptively
violate those protections, but '[n]ot all police-citizen encounters constitute
A-1442-17T4 6 searches or seizures for purposes of the warrant requirement.'" Rosario, 229
N.J. at 271 (alteration in original) (citation omitted) (quoting State v. Rodriguez,
172 N.J. 117, 125 (2002)).
One such encounter is a field inquiry, "a voluntary encounter between the
police and a member of the public in which the police ask questions and do not
compel an individual to answer." Ibid. "The test of a field inquiry is 'whether
[a] defendant, under all of the attendant circumstances, reasonably believed he
could walk away without answering any of [the officer's] questions.'" Id. at
271–72 (alteration in original) (quoting State v. Maryland, 167 N.J. 471, 483
(2001)).
"In contrast to a field inquiry, an investigative detention . . . occurs during
a police encounter when 'an objectively reasonable person' would feel 'that his
or her right to move has been restricted.'" Id. at 272 (quoting Rodriguez, 172
N.J. at 126); see also United States v. Mendenhall, 446 U.S. 544, 554 (1980)
(plurality opinion) (holding that a person is seized for Fourth Amendment
purposes when, "in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave"). The
crucial distinction is that while a field inquiry does not constitute a seizure for
the purposes of the federal and state constitutions, and thus requires no
A-1442-17T4 7 particularized suspicion of criminal activity, an investigative detention must be
supported by an officer's "reasonable and particularized suspicion . . . that an
individual has just engaged in, or was about to engage in, criminal activity."
State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21
(1968)). An officer's "reasonable and particularized suspicion" should be "based
on the totality of the circumstances." Ibid. An officer's subjective, good-faith
hunch does not justify an investigatory stop, even if that hunch proves correct.
See State v. Arthur, 149 N.J. 1, 8 (1997).
"The United States Supreme Court has defined reasonable suspicion as 'a
particularized and objective basis for suspecting the person stopped of criminal
activity.'" Stovall, 170 N.J. at 356 (quoting Ornelas v. United States, 517 U.S.
690, 696 (1996)). "In justifying an investigatory detention based on reasonable
suspicion, a police officer must 'be able to articulate something more than an
"inchoate and unparticularized suspicion or hunch."'" Id. at 357 (quoting United
States v. Sokolow, 490 U.S. 1, 7 (1989)).
III. The Car Search.
As was the case in Rosario, "[t]he key issue in this case lies in the
distinction between a field inquiry and an investigative detention." 229 N.J. at
272. Here, defendant was sitting in his lawfully parked car on a narrow,
A-1442-17T4 8 residential street directly outside of his home when a police SUV containing
four officers drove by him before backing up to stop alongside his car. The
officers shined bright LED flashlights at defendant and into his car, before
asking him what he was doing. After defendant said he lived there, and was
fetching a reading tablet, one of the officers left the SUV to approach defendant,
flashlight in hand, while another's flashlight also remained on defendant and his
car.
In Rosario, an officer pulled up to and parked his car behind the
defendant's car at a perpendicular angle, effectively blocking the defendant's car
from leaving. Id. at 268. The patrol car's "alley light" was aimed at the parked
car. Ibid. The officer then approached the car, asking for the defendant's
"identification and driver's license." Ibid. Our Court found those circumstances
constituted an investigative detention requiring reasonable and articulable
suspicion. Id. at 273.
The Court rejected the argument that "because [the] defendant was right
outside her residence, she could have left her vehicle, walked away from [the
officer], and entered her home." Ibid.; see also Rodriguez, 172 N.J. at 129 ("[A]s
a practical matter, citizens almost never feel free to end an encounter initiated
by the police."). "[S]uch police activity reasonably would, and should, prompt
A-1442-17T4 9 a person to think that she must stay put and submit to whatever interaction with
the police officer was about to come." Rosario, 229 N.J. at 273.
The State did not negate that defendant here was blocked in by the police
SUV, with other cars parked ahead and behind it. A reasonable person would
not have felt free to leave under these circumstances when a police SUV backed
up to stop alongside his car on a narrow residential street. "Our case law
instructs members of the public to submit to a police officer's show of authority,
not to look for an exit." Id. at 274–75. "Case law tells people to obey words
and deeds of law enforcement that communicate demands for directed behavior
and to raise constitutional objections thereafter." Id. at 275.
The moment Detective McCall stepped out of his SUV, flashlight in hand,
supported by the three other officers, no reasonable person would have felt free
to leave, and such an intrusion on an individual's liberty requires more than an
officer's subjective belief or hunch. See State v. Coles, 218 N.J. 322, 343
(2014).
As our Supreme Court stated,
[a] person sitting in a lawfully parked car outside [his or] her home who suddenly finds [himself or] herself blocked in by a patrol car that shines a flood light into the vehicle, only to have the officer exit his [or her] marked car and approach the driver's side of the vehicle, would not reasonably feel free to leave.
A-1442-17T4 10 [Rosario, 229 N.J. at 273.]
That is almost precisely what occurred here. Thus, "defendant was faced with
an investigative detention" and we must consider "whether, based on a totality
of the circumstances, the encounter was 'justified at its inception' by a reasonable
and articulable suspicion of criminal activity." Id. at 276 (quoting Terry, 392
U.S. at 20).
Being in a high-crime area, as here, is relevant in the totality of the
circumstances analysis. See State v. Pineiro, 181 N.J. 13, 22–27 (2004)
(reviewing precedent). We have, however, "rejected the notion that mere
presence in an area known for its drug activity" in and of itself justifies
reasonable suspicion. State v. Dangerfield, 339 N.J. Super. 229, 238 (App. Div.
2001), aff'd as modified, 171 N.J. 446 (2002).
No compounding indicia of criminal activity existed and defendant was
not known to the officers. Defendant's presence in a high-crime area alone did
not amount to reasonable suspicion. As we stated in similar circumstances, if
that were so, "a significant portion of our urban population would be susceptible
to constant police investigation. In our view that is an entirely unacceptable
proposition." State v. Stampone, 341 N.J. Super. 247, 252 (App. Div. 2001).
A-1442-17T4 11 The fact that defendant was sweating on an August evening is also not
significant. See Arthur, 149 N.J. at 10–11. Detective McCall's perception that
defendant leaned back as the officers passed him in an effort to hide himself is
also not significant; again, Rosario is instructive. There, our Court recognized
the long-standing distinction between furtive movements made during the
course of a legitimate detention, which might give rise to "a reasonable suspicion
that the person may be armed and dangerous or probable cause . . . that the
person possesses criminal contraband," Rosario, 229 N.J. at 277 (quoting State
v. Lund, 119 N.J. 35, 48 (1990), and the use of furtive movements to support a
detention "in the first instance," ibid. The Court stated: "Nervousness and
excited movements are common responses to unanticipated encounters with
police officers on the road, and '[m]ere furtive gestures of an occupant of an
automobile do not give rise to an articulable suspicion suggesting criminal
activity.'" Ibid. (alteration in original) (quoting Lund, 119 N.J. at 47).
Even if Detective McCall's perception that defendant leaned back into his seat
to avoid notice were true, absent other circumstances indicating criminal activity,
defendant's actions were merely a "common response[] to [an] unanticipated
encounter[] with police officers on the road." Ibid. Like the defendant’s movements
A-1442-17T4 12 in Rosario, that is, "'scuffling around' and leaning toward the passenger seat, " ibid.,
defendant's observed action is insufficient to generate articulable suspicion.
Last, McCall's inability to see the tablet was not a basis for reasonable suspicion.
On the stand, McCall admitted the tablet might well have not been visible from his
position in the police SUV, whether it was out of view in the passenger compartment,
or out of sight in a backpack or the glove compartment. Again, this is a purely innocent
fact absent the "objectively reasonable belief that the collective circumstances are
consistent with criminal conduct" sufficient to support reasonable suspicion. State v.
Nishina, 175 N.J. 502, 511 (2003). The law enforcement officers had no reasonable
and articulable suspicion of criminal activity at the time they initiated the investigative
detention of defendant, and thus the encounter was an unlawful infringement of
defendant's constitutional rights.
Because McCall was not lawfully in the viewing area when he saw the
green pill in the vehicle, the plain view exception to the warrant requirement
does not apply. The "plain view doctrine requires the police officer to lawfully
be in the viewing area." State v. Johnson, 171 N.J. 192, 206 (2002). McCall
should not have blocked in defendant's car and approached it on foot. See State
v. Keaton, 222 N.J. 438, 450 (2015) (finding that "items discovered in
defendant's car do not fall within the plain view doctrine, and were illegally
A-1442-17T4 13 seized, because the trooper was not lawfully within the viewing area at the time
of the contraband's discovery"). Thus, the evidence obtained from defendant's
person and car must be suppressed.
IV. The Search of Defendant's Home.
In Rodriguez, our Court firmly held that where a defendant was
unlawfully detained, "the stop's illegality void[ed] [the] defendant's subsequent
consent to search and, as a result, the fruits of the warrantless search must be
suppressed." 172 N.J. at 133. "In view of our conclusion that the officers lacked
a sufficient basis to detain defendant, we need not evaluate whether his consent
to the search was voluntary. The illegal detention voids the consent." Id. at
132.
The State argues that the attenuation doctrine applies. Where the
connection between the unlawful police conduct and the seizure is "so attenuated
as to dissipate the taint" from the unlawful conduct, the evidence need not be
excluded. Brown v. Illinois, 422 U.S. 590, 609 (1975); see also State v. Badessa,
185 N.J. 303, 311 (2005). The factors for determining attenuation are: "(1) 'the
temporal proximity' between the illegal conduct and the challenged evidence;
(2) 'the presence of intervening circumstances'; and (3) 'particularly, the purpose
and flagrancy of the official misconduct.'" State v. Shaw, 213 N.J. 398, 415
A-1442-17T4 14 (2012) (quoting Brown, 422 U.S. at 602–04). The burden of demonstrating
attenuation rests on the State. Brown, 422 U.S. at 604.
With regard to the first factor, the time period here was mere minutes, and
the link explicitly clear. See Shaw, 213 N.J. at 416. As the Court recognized,
"[i]n cases where a confession or consent to search follows shortly after an
unlawful stop, the brevity of the interval ordinarily will work against the State."
Ibid. "[T]he closeness in time between the two may lend credence to the
argument that an unlawful detention was exploited to extract a confession or
consent from a suspect." Ibid.
With regard to the second factor, the presence of intervening
circumstances, it is axiomatic that "[a] consent to search that is attributable to
police misconduct involving the violations of constitutional rights may be
regarded as the product of that unconstitutional conduct and an invalid basis on
which to justify a search." State v. Smith, 155 N.J. 83, 101 (1998).
The third factor looks to the purpose and flagrancy of the official
misconduct. Shaw, 213 N.J. at 420. While no evidence suggests the police
purposefully violated defendant's constitutional rights, violations of "[t]he right
of freedom of movement without unreasonable interference by government
officials . . . weigh[] most heavily against the State." Id. at 421.
A-1442-17T4 15 As the State has failed to demonstrate "the connection between the
unconstitutional police action and the [secured] evidence[s] [was] 'so attenuated
as to dissipate the taint' from the unlawful conduct," the evidence seized from
defendant's home must also be suppressed. Badessa, 185 N.J. at 311 (quoting
Murray v. United States, 487 U.S. 533, 536 (1988)). Because we reverse the
order denying defendant's motion to suppress the evidence seized from his car
and home, we vacate defendant's guilty plea.
Reversed. Remanded for further proceedings consistent with this opinion.
We do not retain jurisdiction.
A-1442-17T4 16