NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5901-05T35901-05T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
HASSAN DUNELL,
Defendant-Respondent.
__________________________________________________________
Submitted November 29, 2006 - Decided
Before Judges Wefing, C. S. Fisher and Messano.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 06-03-699.
Paula T. Dow, Essex County Prosecutor, attorney for appellant (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).
Yvonne Smith Segars, Public Defender, attorney for respondent (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
By leave granted, the State of New Jersey (the State) appeals the motion judge's order suppressing evidence seized from defendant, Hassan Dunnell. Relying primarily upon State v. Tucker, 136 N.J. 158 (1994), the judge concluded that defendant's flight from an attempted police investigative detention required exclusion of all evidence seized at the scene of the initial encounter and later at the point of the defendant's arrest in his apartment. We have carefully reviewed the record and conclude that the motion judge: a) improperly restricted the testimony of the State's witness resulting in an incomplete record for review; and, b) failed to make adequate findings of fact as to the entire sequence of events culminating in the police seizure of evidence in defendant's apartment. We therefore reverse and remand the matter to the motion judge for further proceedings consistent with this opinion.
At the hearing on the motion to suppress, the State's only witness, Sheriff's Officer Mohammed Tamimi (Tamimi), testified that on November 30, 2005, he was on duty with the Essex County Anti-Crime Partnership, a multi-jursidictional law enforcement task force that was assisting the Irvington Police Department. At approximately 3:30 p.m., he and other members of the task force were dispatched to 333 17th Avenue in Irvington, a multi-family apartment building. The following sequence in the testimony then took place:
Q. [Assistant Prosecutor]. And did you respond there in response to any particular complaint?
A. [Tamimi]. Received a complaint through my sergeant that a landlord . . .
[Defense Counsel]. Objection.
[The Court]. Well, this is not -- that--objection is sustained because it effectively -- it's a Bankston argument that suggests the offering of hearsay.
[Assistant Prosecutor]. Well, your Honor, I'm not offering the hearsay for the truth of it but as to the officer's state of mind when he did arrive at the location.
. . . .
[The Court]. Suffice it to say that I understand the facts as have been alleged, that apparently there was [] some contact from the landlord who made certain observations.
But that in any event, as a result of information received, you arrived at the premises. You may continue from that point, okay?
Tamimi claimed the general area to be a "high narcotics area." With another nine officers, all in plain clothes and in a total of five unmarked police vehicles, he proceeded to the address. They alighted from their vehicles en masse with their badges displayed around their necks intending to question defendant and others who were outside the building. Defendant immediately began to flee upon seeing the officers and Tamimi ordered him to stop. Defendant did not heed Tamimi's command and instead fled toward the front door of the building discarding an object to the ground as he did.
The following testimony then transpired:
Q. [Assistant Prosecutor]. And what was your purpose in going towards [defendant]?
A. [Tamimi]. Initially --
Q. At that point?
A. [I]t was the trespassing. The letter we received from the landlord.
Q. What about the trespassing, with regard to this defendant?
A. At the time, the letter states that the people were trespassing --
[Defense Counsel]. Objection.
[The Court]. We're back into that again.
. . . .
Q. Upon information that you had received, when you arrived at the scene was there anything you wanted to investigate with regards to the people outside the building?
A. Yes, the area is known for a high narcotics area.
. . . .
And you know, we've had numerous arrests there for narcotics, and you know, the -- again, what the letter states that the people --
[Defense Counsel]. Objection.
[The Court]. Don't tell us about what the letter says.
Tamimi testified as he chased defendant, he was advised by a fellow officer that the object thrown to the ground by defendant was probably narcotics. At that point, his purpose in pursuing defendant was because, "He threw drugs to the ground." The motion judge, however, determined
Detective Tamimi was straight-forward in advising this court that his purpose throughout this process was to interrogate a defiant trespasser.
When if at all [Tamimi] became aware of the existence of the possibility of contraband C.D.S., is just not apparent enough for me to determine that the . . . officer was conducting a hot pursuit to secure the arrest of an individual who was in violation of the State's narcotics laws.
Because the motion judge determined that the initial encounter between defendant and Tamimi fatally tainted the events that followed, he did not make any factual determinations as to when Tamimi learned that the discarded item was probably narcotics and what transpired after defendant entered the building with Tamimi in pursuit.
In that regard, Tamimi testified that defendant continued to evade his pursuit and ran into an apartment on the second floor of the building. Tamimi also entered the apartment, followed defendant into the rear bedroom, and arrested him. As he escorted defendant out of the bedroom, he observed on a counter near the television set, a paper bag that contained a plastic bag with clear vials in it. Tamimi seized it and found one hundred and sixty vials containing twenty-four grams of suspected rock cocaine. The object discarded by defendant outside the building at the start of the pursuit was seized by another officer and found to be a bag containing seven vials of suspected cocaine.
In suppressing the seized evidence, the motion judge reasoned that the initial encounter was more than a "field inquiry," and was "more along the lines of a Terry stop in which demands or orders are issued." He continued, "Arrival at the scene with ten officers and five police cars pursuing an individual who does nothing more, at least initially . . . than vacate the premises, and ordering that individual to halt . . . is an encounter between the police and the citizenry that is much more than a field inquiry." Because there was no "particularized suspicion" and no "objective manifestation that the suspect was . . . involved in criminal activity," he suppressed all the evidence seized at the property.
As noted, the motion judge repeatedly sustained objections to the assistant prosecutor's attempts to elicit Tamimi's knowledge of the contents of a letter that ostensibly provided the genesis for this encounter. This was an unnecessary limitation upon the State's attempt to elicit potentially critical information and the absence of this information, and, as a result, the absence of an evaluation of that evidence by the motion judge, has hampered our review.
In Bankston, supra, 63 N.J. at 266-67, the Court affirmed the reversal of defendant's conviction based upon the admission, before the jury, of hearsay testimony regarding the details of an informant's tip. The Court endorsed the use of the general phrase, "upon information received," if the prosecution wished to explain police actions and defend them against a charge of arbitrary conduct. Id. at 272. While we recognize the vitality and import of that decision, it has no application to the introduction of evidence by the State at a hearing held on defendant's motion to suppress.
It has long been recognized that evidence that is inadmissible at trial may nonetheless provide the factual support for the validity of a warrantless search and seizure of evidence. In State v. Contursi, 44 N.J. 422 (1965), the Supreme Court noted,
Further, the issue is not whether the information which reached the officer was true or false but only whether the officer was reasonable in accepting the information as true. And in reaching his 'belief' the officer is not limited to evidence admissible in the courtroom. For example, hearsay will do if coupled with something to give it credit, and evidence deemed too dangerous at trial, i.e., prior arrests and convictions, may be accorded probative effect.
[Id. at 430.]
The Bankston Court itself differentiated the use of hearsay evidence, on the one hand admitted to determine the officer's state of mind during an evidentiary hearing on a motion to suppress, and on the other, improperly admitted to prove guilt before the jury. In distinguishing two cases cited by the State in support of the notion that the informer's tip was admissible, the Court concluded,
We are satisfied that these cases are inapposite. In both cases the testimony was produced at hearings on motions to suppress evidence. It was admitted solely for the purpose of showing that the officers had probable cause to arrest the defendant and not to prove his guilt of the crime.
[Bankston, supra, 63 N.J. 270-71.]
The extent of the police officer's knowledge is but one factor to consider in determining whether the "totality of the circumstances - the whole picture," State v. Stovall, 170 N.J. 346, 361 (2002) (quoting United States v. Cortez 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981)), support the propriety of a police encounter with a citizen on the street. The police officer's state of mind is particularly relevant in considering the propriety of a warrantless, investigative detention. As the Supreme Court explained in State v. Davis, 104 N.J. 490, 504 (1986),
An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.
(Emphasis added.)
While it is true that during cross-examination, Tamimi blurted out some of the contents of the letter in general terms, the motion judge's rulings denied the State the opportunity to adduce the full contents of the letter. During his decision, the motion judge never made factual findings regarding the actual contents of the letter. He repeatedly characterized Tamimi's conduct as "investigating a trespassing complaint;" yet, we discern from the full record, the letter contained additional allegations specifically known by Tamimi before he exited his police vehicle on the day in question. Thus, the record is incomplete and inadequate for our review.
We cannot discern whether the motion judge actually considered the full contents of the letter in reaching his conclusion. He relied upon Tucker, supra, 136 N.J. at 158, in which the Supreme Court suppressed evidence discarded by the defendant as he fled from approaching police officers. Id. at 162. Recognizing law enforcement's obligation to investigate suspicious activity, the Court noted, "[A] police officer on patrol, as these officers were, having an articulable suspicion that citizens are engaged in illegal activity, has the right to question the suspects." Id. at 167; See State v. Sheffield, 62 N.J. 441, 446, cert. denied, 414 U.S. 876, 94 S.Ct. 83, 38 L.Ed.2d 121 (1973) (street interrogation is proper when officer's experience suggests suspicious activity). However, the Court continued, "The difficulty with this case is that the sole basis asserted for police action was the youth's flight." Tucker, supra, 136 N.J. at 168-69. See also, State v. Dangerfield, 171 N.J. 446, 457 (2002) (flight alone cannot support reasonable suspicion, much less probable cause to arrest).
However, in Tucker, the Court distinguished the limited facts before it from those in State v. Doss, 254 N.J.Super. 122, certif. denied, 130 N.J. 17 (1992), which it cited with approval. Tucker, supra, 136 N.J. at 170. In Doss, plain clothes narcotics officers entered a known drug trafficking area where approximately twenty people had congregated on a cold evening at 11:30 p.m. Doss, supra, 254 N.J. Super. at 125. As they did, some people recognized the unmarked cars as police vehicles and shouted a warning. Ibid. The defendant and a group of four of five others began to run and the police followed defendant as he ran down an alley. Ibid. As they ordered him to stop, one officer recognized the defendant as someone seen in the past conversing with known drug dealers. Ibid. The defendant continued to flee, tripped, was seized by the police and placed under arrest. Ibid. In his hand was a baseball cap containing a substance later positively identified as cocaine. Id. at 126.
In affirming the denial of the defendant's motion to suppress the evidence, we stated,
Under the circumstances, although the police did not have probable cause to arrest and search defendant, they would have been remiss if they had not attempted to stop and interrogate him. They were legally entitled to order defendant to halt, and they were entitled to use non-lethal force to compel compliance with their command.
[Id. at 127-28.]
In short, flight alone may not support a "reasonable, articulable suspicion" that validates an investigative stop, but it is a factor along with the other totality of factors that the court may consider. See State v. Citarella, 154 N.J. 272 (1998) (flight one factor in justifying police chase of bike rider who was known narcotics offender and acting in a suspicious manner); State v. Morrison, 322 N.J. Super. 147 (App. Div. 1999) (police justified in stopping fleeing suspect based upon high narcotics area and resident complaints of his involvement in drug sales); State v. Ruiz, 286 N.J. Super. 155, 163 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996) (police justified in stopping fleeing suspect based upon prior arrests and suspicious conduct); In Re J.B., 284 N.J. Super. 513 (App. Div. 1995) (citizen telephone tip of narcotics sales in high trafficking area coupled with juvenile's immediate flight and concealment justified stop and investigatory detention).
Here, consideration of whether Tamimi's order to stop and subsequent pursuit of the defendant was based upon a reasonable suspicion must be examined in light of the totality of the circumstances, including all the officer knew before he acted as he did. We do not suggest that the Court's consideration of the full contents of the letter will necessarily change the result previously reached. Because we do not know what the ultimate result would be, we remand the matter back to the motion judge for further proceedings. In this regard, the motion judge shall permit the introduction of further evidence by the State and defendant as necessary so that the record is complete.
In addition, because the motion judge concluded that the initial encounter between defendant and Tamimi tainted all that followed, he chose not to make explicit findings of fact as to the events that transpired after defendant fled. Thus, we are unable to determine whether the evidence seized in defendant's apartment should have been suppressed. We note that whether Tamimi's pursuit of defendant through the hallway of the apartment building and into his apartment was justified may turn on the question of whether probable cause existed to arrest defendant for violation of the narcotics laws or some other offense. "Probable cause exists if at the time of the police action there is 'a well grounded suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). The resolution of that issue depends upon a peculiarly fact-sensitive analysis of the totality of the circumstances. See State v. Moore, 181 N.J. 40, 46 (2004) (probable cause is to be determined by examining the totality of the circumstances including officer's experience and high-crime reputation of the area). Since the motion judge did not determine "when, if at all" Tamimi became aware of the narcotics discarded by defendant, and the facts regarding the sequence of events after defendant fled, we cannot determine whether probable cause existed to arrest defendant for narcotics violations or some other offense and for Tamimi's continued pursuit of defendant into his apartment.
Lastly, we recognize that the motion judge did not have the benefit of two developments in the caselaw that may impact upon the reasoning he employed. In State v. Crawley, 187 N.J. 440 (2006), the Court affirmed the defendant's conviction for violating N.J.S.A. 2C:29-1a when he fled from police officers attempting to make an investigatory stop. Crawley, supra, 187 N.J. at 462. Under the facts presented, the Court concluded that because the officers were acting "in objective good faith and under color of their authority," the defendant's flight from their command to halt "obstructed their efforts." Id. at 461-62. And, because of the important public interest served by heeding an officer's command, the defendant could be convicted under the statute "when he flees from an investigatory stop, despite a later finding that the police action was unconstitutional." Id. at 460.
Though Crawley did not address the Fourth Amendment issue, id. at 451, in Doss, we anticipated Crawley's holding as providing an alternative basis that justified police action in pursuing, detaining, and ultimately arresting the defendant. Doss, supra, 254 N.J. Super. at 130. We noted that the defendant's refusal to obey the officer's command to halt was a violation of N.J.S.A. 2C:29-1a and the police "were entitled to arrest him and conduct a search incident to the arrest." Id. at 131.
The second development which the motion judge should be entitled to consider is the holding in State v. Williams, 381 N.J. Super. 572 (App. Div. 2005), certif. granted, 188 N.J. 355 (2006). In Williams, we concluded that the totality of the circumstances including the nature of the neighborhood, an anonymous tip, and the nervousness and flight of the defendant, did not give rise to a reasonable, articulable suspicion that would validate the investigative detention of the defendant. Id. at 589-90. We continued by noting that flight from an unlawful Terry stop could not justify defendant's arrest and subsequent search pursuant to that arrest. Id. at 590-92. We also observe that the majority in Crawley expressed "disapprov[al]" of our statement in Williams, 381 N.J. Super. at 577, that "a citizen's non-violent fight from an [unconstitutional] search and seizure cannot be validly criminalized," but the majority did not express a view as to our holding a "search following [a] defendant's flight [from an unconstitutional stop] cannot be legitimized as incidental to [the] defendant's arrest." Ibid.; see Crawley, supra, 187 N.J. at 460 n.7.
After making the required further factual determinations, the motion judge will need to consider what effect, if any, the Court's decision in Crawley and our holding in Williams may have upon the issues presented.
Lastly, we suggest no particular conclusion as to whether Tamimi's conduct in entering defendant's apartment was appropriate even if probable cause existed for defendant's arrest. That question, too, depends upon the resolution of factual issues never determined by the motion judge at the time of the suppression hearing.
We note, "[W]arrantless searches or arrests in the home must be subjected to particularly careful scrutiny." State v. Bolte, 115 N.J. 579, 583, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed.2d 320 (1989). However, the exigent circumstances of the moment or the "hot pursuit" of someone suspected of having committed a serious criminal offense may justify such a warrantless intrusion. Id. at 598. Moreover, we have noted that "if the police undertake to arrest a person without a warrant in a public place and the suspect flees into his or her home, the police may follow to effectuate the arrest." State v. Nikola, 359 N.J. Super. 573, 584 (App. Div.) certif. denied, 178 N.J. 30 (2003). The motion judge's factual findings regarding the sequence of events after defendant fled from the attempted investigative detention will inform his decision whether Tamimi's entry into defendant's apartment was permissible under these exceptions to the general rule prohibiting warrantless searches of private residences.
The order suppressing the evidence seized is reversed and the matter is remanded to the motion judge for further proceedings consistent with this opinion. We do not retain jurisdiction.
State v. Bankston, 63 N.J. 263 (1973).
Defendant was, in fact, a resident of the building.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Although our decision pre-dated the motion judge's determination, the Supreme Court's grant of the State's petition for certification occurred afterwards.
(continued)
(continued)
17
A-5901-05T3
February 1, 2007