SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-005057-94T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER ARTHUR,
Defendant-Appellant.
________________________________
Submitted December 20, l
995 Decided January 31, 1996
Before Judges Shebell, Wallace and Newman.
On appeal from Superior Court of New Jersey,
Law Division, Union County.
Susan L. Reisner, Public Defender, attorney
for appellant (M. Virginia Barta, Assistant
Deputy Public Defender, of counsel and on
the letter brief).
Deborah T. Poritz, Attorney General of New Jersey,
attorney for respondent (Deborah Bartolomey, Deputy
Attorney General, of counsel and on the letter brief).
The opinion of the court was delivered by
NEWMAN, J.A.D.
Defendant Christopher Arthur appeals from an order denying his motion to suppress. Following that denial, defendant entered a guilty plea to third degree possession of cocaine, N.J.S.A. 2C:35-l0(a)(l), pursuant to a plea agreement which recommended a three-year probationary sentence. Defendant was later sentenced to three years of probation, five hours of community service per
month during his probationary term, periodic urine monitoring and
participation in an outpatient drug program. A $l,000 DEDR
penalty, a $50 lab fee, a $50 VCCB penalty and a suspension of
driving privileges for six months were also imposed.
The focus of the motion to suppress was whether or not the
Plainfield police, while conducting an undercover surveillance of
a high narcotic area during the middle of a June day, had an
articulable suspicion to stop defendant when he left the area in
his automobile and order him out of the automobile. We conclude
that the police did not and reverse.
The relevant facts follow. On June 26, l993, Detective
Smallwood, an experienced narcotics officer with the Plainfield
Police Department, was conducting an undercover surveillance of
the ll00 block of West Third Street. The area was considered one
of high narcotic activity. Equipped with binoculars and
supported by a back-up team of four to six police officers
including Detectives Michael Robert Hoose and Wayne Williams,
Detective Smallwood observed a white Ford Tempo drive into the
area and park at about l2:30 p.m. He observed, through
binoculars from about l50 feet away, a male seated in the
driver's seat; he did not recognize the man, whom he later
identified as defendant. One or two minutes later, a female
walked toward the car and got in on the passenger's side.
Detective Smallwood had no prior contact with the female and knew
nothing about either occupant of the car. He observed them for
about five minutes. They were engaged in conversation. The
female, later identified as Deborah Walls, got out of the
automobile, looked around in every direction in what was
described by Detective Smallwood as a suspicious manner, with a
brown paper bag in her hand, which she held close to her body
under her right arm like a football player carrying the ball.
The bag was a brown grocery bag with the top rolled down, and was
l0 inches wide by 5 to 6 inches high. The female was wearing a
T-shirt and cut-off jean shorts. Because of her limited
clothing, the detective concluded that she did not have the bag
with her when she entered the car. He had seen on numerous
occasions people transferring and passing narcotics in paper
bags. As he put it, "The way she was looking, and she acted real
suspicious, I just wanted her stopped." Detective Hoose and
Williams were radioed and told to stop her.
Detective Smallwood also broadcast that the white Ford left
the area. A minute later, Hoose spotted the female, jumped out
of his car, ran up to her and immediately grabbed the bag from
her. He looked inside and found a couple of hundred used crack
vials in the brown paper bag. This information was radioed to
Smallwood. He noted that used vials were recycled in the drug
trade and that defendant may have more narcotic paraphernalia or
drugs in the car. He then ordered the other officers to stop
defendant.
Detective Williams, along with his partner, Detective
Hawkins, responded. Detective Williams saw the vehicle coming
towards his patrol car, made a U-turn, activated his emergency
lights and pulled defendant's car over. No traffic violation had
occurred. Detective Hawkins and Williams simultaneously exited
their patrol car with Hawkins approaching the passenger door
while Williams went to the driver's side and ordered defendant
out of the car.
As defendant stepped out of the car, he blurted out to the
detectives that he had "bottles", a street term for glass vials
of cocaine, in his back pants pocket. Three glass vials of
cocaine were retrieved by Detective Williams from defendant's
right rear pants pocket. Defendant was then placed under arrest.
Defendant moved to suppress the vials of cocaine seized from
him. The motion judge found that the police had a clear
articulable suspicion, based on what had been observed by
Detective Smallwood before either Walls or defendant were
stopped, justifying stopping both Walls and defendant to conduct
further investigation. He thus concluded that the police had an
articulable suspicion to stop defendant regardless of whether the
intervening seizure of the brown paper bag from Ms. Walls was
improper. In other words, the police had a right to stop
defendant and ask him to exit the vehicle even if they could not
rely on the evidence seized from Walls. Defendant's post-stop
statement, which was unsolicited, then provided probable cause
for the police to search and arrest him.
On appeal, defendant argues that the motion judge erred by
ruling that the police officers had a reasonable articulable
suspicion that defendant was involved in criminal activity, and
therefore had no right to stop his vehicle to make further
inquiry by requesting that he exit the vehicle. The facts known
to the police and relied on at the time of the stop, defendant
asserts, did not give rise to a reasonable belief that criminal
activity was under way.
An investigatory stop is permissible where the officers have
a particularized and objective basis for suspecting the
particular person stopped of criminal activity. Terry v. Ohio,
392 U.S. l, 88 S.Ct. l868,
20 L.Ed.2d 889 (l968). In
determining whether such a basis exists, we must consider the
totality of the circumstances known to the surveilling police.
United States v. Cortez,
449 U.S. 4ll, l0l S.Ct. 690,
66 L.Ed.2d 62l (l98l); State v. Thomas, ll
0 N.J. 673 (l988).
We first consider whether the motion judge correctly held
that the police had a right to stop defendant without considering
the evidence seized from Walls. We are persuaded that the
totality of the circumstances (not including the evidence seized
from Walls) did not rise to the level of reasonable suspicion but
rather Detective Smallwood acted upon a hunch, which does not
measure up to the required standard. Sibron v. New York,
392 U.S. 40, 64, 88 S.Ct. l889, l903,
20 L.Ed.2d 9l7 (l968); State
v. Demeter, l
24 N.J. 374, 383 (l99l). The high crime area was
the subject of a surveillance on a sunny June day just after
noon. The defendant drove and parked by the curb. A female
later entered his car. No transaction was observed. No exchange
of money took place. No furtive gestures were observed. Two
people were seen conversing in a parked car at noon. Neither
defendant nor Walls was known to Detective Smallwood. No prior
surveillance had been conducted of defendant. Nothing was known
about these individuals other than the fact that their
conversation was taking place in a high crime area known for drug
trafficking.
The facts here are significantly different from those in
State v. Valentine, l
34 N.J. 536, 539 (l994), where observations
were made in a high crime area at midnight and the officer knew
the suspects had a prior criminal history or were routinely
associated with drug dealers. See also, State v. Doss, 254 N.J.
Super. l22, l25 (App. Div.), certif. denied, l30 N.J. l7 (l992).
To be sure, the female did look around in all directions
when she exited the car with a brown paper bag that she did not
have when she entered the car. That, however, is all Detective
Smallwood knew about her when he ordered that she be stopped.
While a brown grocery bag may be used to transport drugs, they
are used to carry innocent items. See, State v. Demeter, supra,
l24 N.J. at 382. A rendezvous between a male and a female in a
parked car in the middle of a summer day, albeit in a high crime
area, does not suggest criminal activity. Purely innocent
connotations may be ascribed to the observed conduct. Therefore,
we disagree with the motion judge's finding that the police had
an articulable suspicion to stop defendant independently of the
evidence seized from Walls.
We now consider whether the stop of defendant was justified
based on consideration by the police of the evidence seized from
Walls. As noted, the police did not have an articulable
suspicion to stop Walls and therefore the seizure of evidence
from her was improper. This is for the same reasons already
discussed that the police did not have a right to stop defendant
without considering the evidence seized from Walls since the
knowledge of the police to be evaluated in each analysis is
exactly the same. The issue then becomes whether the police
could properly use the evidence illegally seized from Walls to
justify its stop and search of defendant. The issue must be
analyzed in the following two parts: (l) whether defendant has
standing to object to the prior illegal search of Walls; and (2)
if defendant does have standing, whether there was a sufficient
nexus between the prior illegality and the seizure of cocaine
from defendant such that the cocaine must be suppressed as the
"fruit of the poisonous tree". See Wayne R. LaFave, 2 Search and
Seizure Sec. 3.2(d) p. 58 (3d ed. l996). Because the motion
judge concluded that the police had an articulable suspicion to
stop defendant aside from the evidence seized from Walls, he did
not address the standing and "fruit" issues. Since we disagree
with the motion judge's conclusion regarding articulable
suspicion by the police in the absence of knowing the paper bag's
contents, we must address these issues. If the police's
consideration of the contents of the bag seized from Walls was
proper, then the existence of an articulable suspicion would be
clear and the stop of defendant would be constitutional.
State v. Alston,
88 N.J. 2ll, 228 (l98l), ruled that an
accused has automatic standing to contest the validity of a
search and seizure when possession of the seized evidence at the
time of the contested search is an essential element of guilt.
Our Supreme Court, "rather than follow the...`legitimate
expectations of privacy in the area searched' standard as applied
in Rakas, Salvucci and Rawlings",See footnote 1 retained "the rule of
standing traditionally applied in New Jersey, namely, that a
criminal defendant is entitled to bring a motion to suppress
evidence obtained in an unlawful search and seizure if he has a
proprietary, possessory or participatory interest in either the
place searched or the property seized." Id. This rule of
standing does not automatically provide a person with standing to
object to prior state action that was directed against another
person. This is true when that action becomes the basis for a
subsequent search and seizure that is in fact directed against
the defendant, eventuating in the subsequent seizure of
incriminating evidence. See, State v. Johnson,
43 N.J. 572, 595
(l965), aff'd,
384 U.S. 7l9, 86 S.Ct. l772, l
6 L.Ed.2d 882
(l966). In assessing defendant's standing here, we therefore
must ascertain the sufficiency of his connection or relationship
to the evidence seized.
A participatory interest in seized evidence extends beyond
the kind of relationship that could otherwise be considered only
proprietary or possessory. In commenting on the scope of a
participatory interest, the Court in State v. Mollica, ll
4 N.J. 329, 339 (l989), said: "It rather stresses the relationship of
the evidence to the underlying criminal activity and defendant's
own criminal role in the generation and use of such evidence."
The "participatory interest" test, unlike the terms "possessory"
or "proprietary" which denote property concepts, "connotes some
involvement in the underlying criminal conduct in which the
seized evidence is used by the participants to carry out the
unlawful activity." Id. at 339-340. See also, State v. Curry,
l09 N.J. l, 8-l0 (l987).
In this case, the participation is unmistakable. Defendant
is the one who presumably gave the paper bag to Walls before she
exited the vehicle and was stopped by the police. Defendant's
connection to the paper bag and its contents is one of direct
involvement. Therefore, his standing to challenge the evidence
seized from Walls is unquestionable.
We must next ascertain whether there is a sufficient nexus
between the prior illegal seizure from Walls and the instant stop
and search of defendant. In other words, we have to determine
whether the cocaine seized from defendant is illegal "fruit of
the poisonous tree". See Wong Sun v. U.S., 37l U.S. 47l, 484,
83 S.Ct. 407, 4l6,
9 L.Ed.2d 44l, 454 (l963). If there was a
sufficient nexus between the prior illegal search and the search
and subsequent arrest of the defendant, the evidence must be
suppressed. However, if the evidence was obtained from defendant
by means sufficiently independent to dissipate the taint of the
illegal conduct, it would not be suppressed. See, State v.
Johnson, ll
8 N.J. 639, 653 (l990) (quoting Brown v. Illinois,
422 U.S. 590, 603,
95 S.Ct. 2254, 226l,
45 L.Ed.2d 4l6, 427 (l975).
In making that determination, the test followed by our
courts is based on three factors: (l) the temporal proximity
between the illegal conduct and the challenged evidence; (2) the
presence of intervening circumstances; and (3) the flagrancy and
purpose of the policeman's conduct. Ibid.
We are satisfied that the taint of the illegal conduct in
searching Walls was not dissipated by the time of the subsequent
arrest of defendant. The temporal proximity between the illegal
conduct and the challenged evidence was immediate. After the
detective learned that Walls was carrying used crack vials, he
radioed to have defendant stopped.
When defendant was stopped, but before he was searched, he
blurted out that he had bottles in his back pocket. That
statement gave the police probable cause to believe the defendant
was carrying drugs. Although this spontaneous statement
intervened between the search of Walls and defendant, it was not
sufficiently independent of the illegal search of Walls to
validate the search of defendant. The only reason the police
stopped defendant was because they found used crack vials in a
bag carried by Walls. As a direct result of that stop, defendant
blurted out that he had bottles. The circumstances are not so
much intervening as they are part of the inter-related events
between the search of Walls and the stop of defendant.
As to the third element, the action of the police in
searching Walls was flagrant, to the extent that no facts could
be pointed to which even sustain an articulable suspicion that
she was carrying drugs. This taint carried over and permeated
the stopping of defendant's vehicle. We are satisfied that a
sufficient nexus existed between the prior illegal search and
seizure of Walls and the stop and search of defendant to taint
the evidence seized from defendant. Therefore, because the
illegal seizure from Walls could not be used by the state in
formulating an articulable suspicion in order to stop defendant
and, as previously stated, without that information, the police
lacked an articulable suspicion to stop defendant, the evidence
seized from defendant must be suppressed.
Reversed and remanded.
Susan L. Reisner, Public Defender, attorney
for appellant (M. Virginia Barta, Assistant
Deputy Public Defender, of counsel and on
the letter brief).
Deborah T. Poritz, Attorney General of New Jersey,
attorney for respondent (Deborah Bartolomey, Deputy
Attorney General, of counsel and on the letter brief).
The opinion of the court was delivered by
NEWMAN, J.A.D.
Defendant Christopher Arthur appeals from an order denying his motion to suppress. Following that denial, defendant entered a guilty plea to third degree possession of cocaine, N.J.S.A. 2C:35-l0(a)(l), pursuant to a plea agreement which recommended a three-year probationary sentence. Defendant was later sentenced to three years of probation, five hours of community service per
month during his probationary term, periodic urine monitoring and
participation in an outpatient drug program. A $l,000 DEDR
penalty, a $50 lab fee, a $50 VCCB penalty and a suspension of
driving privileges for six months were also imposed.
The focus of the motion to suppress was whether or not the
Plainfield police, while conducting an undercover surveillance of
a high narcotic area during the middle of a June day, had an
articulable suspicion to stop defendant when he left the area in
his automobile and order him out of the automobile. We conclude
that the police did not and reverse.
The relevant facts follow. On June 26, l993, Detective
Smallwood, an experienced narcotics officer with the Plainfield
Police Department, was conducting an undercover surveillance of
the ll00 block of West Third Street. The area was considered one
of high narcotic activity. Equipped with binoculars and
supported by a back-up team of four to six police officers
including Detectives Michael Robert Hoose and Wayne Williams,
Detective Smallwood observed a white Ford Tempo drive into the
area and park at about l2:30 p.m. He observed, through
binoculars from about l50 feet away, a male seated in the
driver's seat; he did not recognize the man, whom he later
identified as defendant. One or two minutes later, a female
walked toward the car and got in on the passenger's side.
Detective Smallwood had no prior contact with the female and knew
nothing about either occupant of the car. He observed them for
about five minutes. They were engaged in conversation. The
female, later identified as Deborah Walls, got out of the
automobile, looked around in every direction in what was
described by Detective Smallwood as a suspicious manner, with a
brown paper bag in her hand, which she held close to her body
under her right arm like a football player carrying the ball.
The bag was a brown grocery bag with the top rolled down, and was
l0 inches wide by 5 to 6 inches high. The female was wearing a
T-shirt and cut-off jean shorts. Because of her limited
clothing, the detective concluded that she did not have the bag
with her when she entered the car. He had seen on numerous
occasions people transferring and passing narcotics in paper
bags. As he put it, "The way she was looking, and she acted real
suspicious, I just wanted her stopped." Detective Hoose and
Williams were radioed and told to stop her.
Detective Smallwood also broadcast that the white Ford left
the area. A minute later, Hoose spotted the female, jumped out
of his car, ran up to her and immediately grabbed the bag from
her. He looked inside and found a couple of hundred used crack
vials in the brown paper bag. This information was radioed to
Smallwood. He noted that used vials were recycled in the drug
trade and that defendant may have more narcotic paraphernalia or
drugs in the car. He then ordered the other officers to stop
defendant.
Detective Williams, along with his partner, Detective
Hawkins, responded. Detective Williams saw the vehicle coming
towards his patrol car, made a U-turn, activated his emergency
lights and pulled defendant's car over. No traffic violation had
occurred. Detective Hawkins and Williams simultaneously exited
their patrol car with Hawkins approaching the passenger door
while Williams went to the driver's side and ordered defendant
out of the car.
As defendant stepped out of the car, he blurted out to the
detectives that he had "bottles", a street term for glass vials
of cocaine, in his back pants pocket. Three glass vials of
cocaine were retrieved by Detective Williams from defendant's
right rear pants pocket. Defendant was then placed under arrest.
Defendant moved to suppress the vials of cocaine seized from
him. The motion judge found that the police had a clear
articulable suspicion, based on what had been observed by
Detective Smallwood before either Walls or defendant were
stopped, justifying stopping both Walls and defendant to conduct
further investigation. He thus concluded that the police had an
articulable suspicion to stop defendant regardless of whether the
intervening seizure of the brown paper bag from Ms. Walls was
improper. In other words, the police had a right to stop
defendant and ask him to exit the vehicle even if they could not
rely on the evidence seized from Walls. Defendant's post-stop
statement, which was unsolicited, then provided probable cause
for the police to search and arrest him.
On appeal, defendant argues that the motion judge erred by
ruling that the police officers had a reasonable articulable
suspicion that defendant was involved in criminal activity, and
therefore had no right to stop his vehicle to make further
inquiry by requesting that he exit the vehicle. The facts known
to the police and relied on at the time of the stop, defendant
asserts, did not give rise to a reasonable belief that criminal
activity was under way.
An investigatory stop is permissible where the officers have
a particularized and objective basis for suspecting the
particular person stopped of criminal activity. Terry v. Ohio,
392 U.S. l, 88 S.Ct. l868,
20 L.Ed.2d 889 (l968). In
determining whether such a basis exists, we must consider the
totality of the circumstances known to the surveilling police.
United States v. Cortez,
449 U.S. 4ll, l0l S.Ct. 690,
66 L.Ed.2d 62l (l98l); State v. Thomas, ll
0 N.J. 673 (l988).
We first consider whether the motion judge correctly held
that the police had a right to stop defendant without considering
the evidence seized from Walls. We are persuaded that the
totality of the circumstances (not including the evidence seized
from Walls) did not rise to the level of reasonable suspicion but
rather Detective Smallwood acted upon a hunch, which does not
measure up to the required standard. Sibron v. New York,
392 U.S. 40, 64, 88 S.Ct. l889, l903,
20 L.Ed.2d 9l7 (l968); State
v. Demeter, l
24 N.J. 374, 383 (l99l). The high crime area was
the subject of a surveillance on a sunny June day just after
noon. The defendant drove and parked by the curb. A female
later entered his car. No transaction was observed. No exchange
of money took place. No furtive gestures were observed. Two
people were seen conversing in a parked car at noon. Neither
defendant nor Walls was known to Detective Smallwood. No prior
surveillance had been conducted of defendant. Nothing was known
about these individuals other than the fact that their
conversation was taking place in a high crime area known for drug
trafficking.
The facts here are significantly different from those in
State v. Valentine, l
34 N.J. 536, 539 (l994), where observations
were made in a high crime area at midnight and the officer knew
the suspects had a prior criminal history or were routinely
associated with drug dealers. See also, State v. Doss, 254 N.J.
Super. l22, l25 (App. Div.), certif. denied, l30 N.J. l7 (l992).
To be sure, the female did look around in all directions
when she exited the car with a brown paper bag that she did not
have when she entered the car. That, however, is all Detective
Smallwood knew about her when he ordered that she be stopped.
While a brown grocery bag may be used to transport drugs, they
are used to carry innocent items. See, State v. Demeter, supra,
l24 N.J. at 382. A rendezvous between a male and a female in a
parked car in the middle of a summer day, albeit in a high crime
area, does not suggest criminal activity. Purely innocent
connotations may be ascribed to the observed conduct. Therefore,
we disagree with the motion judge's finding that the police had
an articulable suspicion to stop defendant independently of the
evidence seized from Walls.
We now consider whether the stop of defendant was justified based on consideration by the police of the evidence seized from Walls. As noted, the police did not have an articulable suspicion to stop Walls and therefore the seizure of evidence from her was improper. This is for the same reasons already discussed that the police did not have a right to stop defendant without considering the evidence seized from Walls since the knowledge of the police to be evaluated in each analysis is exactly the same. The issue then becomes whether the police could properly use the evidence illegally seized from Walls to justify its stop and search of defendant. The issue must be analyzed in the following two parts: (l) whether defendant has standing to object to the prior illegal search of Walls; and (2) if defendant does have standing, whether there was a sufficient nexus between the prior illegality and the seizure of cocaine from defendant such that the cocaine must be suppressed as the "fruit of the poisonous tree". See Wayne R. LaFave, 2 Search and Seizure Sec. 3.2(d) p. 58 (3d ed. l996). Because the motion judge concluded that the police had an articulable suspicion to stop defendant aside from the evidence seized from Walls, he did not address the standing and "fruit" issues. Since we disagree with the motion judge's conclusion regarding articulable suspicion by the police in the absence of knowing the paper bag's contents, we must address these issues. If the police's consideration of the contents of the bag seized from Walls was
proper, then the existence of an articulable suspicion would be
clear and the stop of defendant would be constitutional.
State v. Alston,
88 N.J. 2ll, 228 (l98l), ruled that an
accused has automatic standing to contest the validity of a
search and seizure when possession of the seized evidence at the
time of the contested search is an essential element of guilt.
Our Supreme Court, "rather than follow the...`legitimate
expectations of privacy in the area searched' standard as applied
in Rakas, Salvucci and Rawlings",See footnote 2 retained "the rule of
standing traditionally applied in New Jersey, namely, that a
criminal defendant is entitled to bring a motion to suppress
evidence obtained in an unlawful search and seizure if he has a
proprietary, possessory or participatory interest in either the
place searched or the property seized." Id. This rule of
standing does not automatically provide a person with standing to
object to prior state action that was directed against another
person. This is true when that action becomes the basis for a
subsequent search and seizure that is in fact directed against
the defendant, eventuating in the subsequent seizure of
incriminating evidence. See, State v. Johnson,
43 N.J. 572, 595
(l965), aff'd,
384 U.S. 7l9, 86 S.Ct. l772, l
6 L.Ed.2d 882
(l966). In assessing defendant's standing here, we therefore
must ascertain the sufficiency of his connection or relationship
to the evidence seized.
A participatory interest in seized evidence extends beyond
the kind of relationship that could otherwise be considered only
proprietary or possessory. In commenting on the scope of a
participatory interest, the Court in State v. Mollica, ll
4 N.J. 329, 339 (l989), said: "It rather stresses the relationship of
the evidence to the underlying criminal activity and defendant's
own criminal role in the generation and use of such evidence."
The "participatory interest" test, unlike the terms "possessory"
or "proprietary" which denote property concepts, "connotes some
involvement in the underlying criminal conduct in which the
seized evidence is used by the participants to carry out the
unlawful activity." Id. at 339-340. See also, State v. Curry,
l09 N.J. l, 8-l0 (l987).
In this case, the participation is unmistakable. Defendant
is the one who presumably gave the paper bag to Walls before she
exited the vehicle and was stopped by the police. Defendant's
connection to the paper bag and its contents is one of direct
involvement. Therefore, his standing to challenge the evidence
seized from Walls is unquestionable.
We must next ascertain whether there is a sufficient nexus
between the prior illegal seizure from Walls and the instant stop
and search of defendant. In other words, we have to determine
whether the cocaine seized from defendant is illegal "fruit of
the poisonous tree". See Wong Sun v. U.S., 37l U.S. 47l, 484,
83 S.Ct. 407, 4l6,
9 L.Ed.2d 44l, 454 (l963). If there was a
sufficient nexus between the prior illegal search and the search
and subsequent arrest of the defendant, the evidence must be
suppressed. However, if the evidence was obtained from defendant
by means sufficiently independent to dissipate the taint of the
illegal conduct, it would not be suppressed. See, State v.
Johnson, ll
8 N.J. 639, 653 (l990) (quoting Brown v. Illinois,
422 U.S. 590, 603,
95 S.Ct. 2254, 226l,
45 L.Ed.2d 4l6, 427 (l975).
In making that determination, the test followed by our
courts is based on three factors: (l) the temporal proximity
between the illegal conduct and the challenged evidence; (2) the
presence of intervening circumstances; and (3) the flagrancy and
purpose of the policeman's conduct. Ibid.
We are satisfied that the taint of the illegal conduct in
searching Walls was not dissipated by the time of the subsequent
arrest of defendant. The temporal proximity between the illegal
conduct and the challenged evidence was immediate. After the
detective learned that Walls was carrying used crack vials, he
radioed to have defendant stopped.
When defendant was stopped, but before he was searched, he
blurted out that he had bottles in his back pocket. That
statement gave the police probable cause to believe the defendant
was carrying drugs. Although this spontaneous statement
intervened between the search of Walls and defendant, it was not
sufficiently independent of the illegal search of Walls to
validate the search of defendant. The only reason the police
stopped defendant was because they found used crack vials in a
bag carried by Walls. As a direct result of that stop, defendant
blurted out that he had bottles. The circumstances are not so
much intervening as they are part of the inter-related events
between the search of Walls and the stop of defendant.
As to the third element, the action of the police in
searching Walls was flagrant, to the extent that no facts could
be pointed to which even sustain an articulable suspicion that
she was carrying drugs. This taint carried over and permeated
the stopping of defendant's vehicle. We are satisfied that a
sufficient nexus existed between the prior illegal search and
seizure of Walls and the stop and search of defendant to taint
the evidence seized from defendant. Therefore, because the
illegal seizure from Walls could not be used by the state in
formulating an articulable suspicion in order to stop defendant
and, as previously stated, without that information, the police
lacked an articulable suspicion to stop defendant, the evidence
seized from defendant must be suppressed.
Reversed and remanded.
Footnote: 1 Rakas v. Illinois, 439 U.S. l28, 99 S.Ct. 42l, 58 L.Ed.2d 387 (l978); United v. Salvucci, 448 U.S. 83, l 00 S.Ct. 2547, 65 L.Ed.2d 6l9 (l980); Rawlings v. Kentucky, 448 U.S. 98, l 00 S.Ct. 2556, 65 L.Ed.2d 633 (l980). Footnote: 2 Rakas v. Illinois, 439 U.S. l28, 99 S.Ct. 42l, 58 L.Ed.2d 387 (l978); United v. Salvucci, 448 U.S. 83, l 00 S.Ct. 2547, 65 L.Ed.2d 6l9 (l980); Rawlings v. Kentucky, 448 U.S. 98, l 00 S.Ct. 2556, 65 L.Ed.2d 633 (l980).