Opinion
DOCKET NO. A-0235-14T2
04-09-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. LAMEL ELLIS, Defendant-Respondent.
Jason Boudwin, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Boudwin, of counsel and on the brief). Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Wilensky, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Ostrer. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-02-0318. Jason Boudwin, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Boudwin, of counsel and on the brief). Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Wilensky, of counsel and on the brief). PER CURIAM
On leave granted, the State appeals from the trial court's order suppressing the fruits of a warrantless search — a .25 caliber handgun. Having considered the State's arguments in light of the record and applicable principles of law, we affirm.
I.
The facts were developed at an evidentiary hearing. The sole witness was Woodbridge police officer Lukas Pepkowski. At around 2:00 a.m. on December 3, 2012, Pepkowski was on patrol in a marked police car with a partner. They were dispatched to Harrell Avenue, a cul de sac in a residential neighborhood. The dispatch was prompted by an anonymous caller, who claimed to have seen two men in a dark Ford Crown Victoria in the area. The caller reportedly asserted the car looked suspicious and the two male occupants were smoking a "blunt" — a thick marijuana cigarette. Pepkowski could not recall if the caller or dispatch identified the race of the two occupants.
Pepkowski entered Harrell Avenue and spotted a Crown Victoria parked at the end, in the cul de sac, perpendicular to lanes of traffic. The street was dark. The record does not reflect whether the Ford's engine was running, or its headlights or interior lights were illuminated. Pepkowski stopped his patrol car with the nose of his car facing the driver's side of the Ford, as if to form a "T". The trial judge retrieved a Google map of the street and asked the officer to confirm that it accurately depicted the street. The judge found that the police car stopped in such a way as to prevent defendant's vehicle from leaving.
Pepkowski illuminated his spotlight, but did not activate his patrol car's on-board video recorder. The patrol car's spotlight was very bright, and everyone in the vehicle turned toward the officers. Pepkowski agreed it prompted a "deer in the headlights" response from the occupants.
Contrary to the anonymous caller's report, Pepkowski observed that there were actually three occupants of the Ford — two African-American men in the front, and a Caucasian woman in the back seat. As Pepkowski and his partner approached the Ford, the woman quickly exited the curb side of the vehicle and started to walk away. Pepkowski did not observe anyone smoking marijuana, nor did he detect the distinctive smell of marijuana, with which he was familiar.
Pepkowski commanded the woman to stop, which she did. Pepkowski admitted that at that point, he had observed no motor vehicle violations, or any other violations of law. His partner approached the woman. According to Pepkowski, "[S]he was very excited and just started to say, 'I was just . . . getting out of the car to give you my ID'. And I hadn't even said anything to her at that point." She disclosed that she lived on the block where the Ford was parked.
Pepkowski then approached defendant, who had remained in the driver's seat. Pepkowski testified that he "[a]sked him what he was doing in the area." Defendant responded that he was dropping off his friend — referring to the woman — and he was "just leaving."
Pepkowski continued his questioning. He asked defendant for identification. Defendant responded he did not have any. Pepkowski then asked defendant to step out of the vehicle. Pepkowski explained that he did so because defendant had apparently committed a motor vehicle violation — driving without possessing a driver's license.
Pepkowski asked defendant to stand still, but he did not comply. He appeared nervous. Rather than face the officer, defendant was "blading his body" according to Pepkowski, so he stood sideways to Pepkowski, with his left shoulder closest to the officer and his right shoulder farthest away. Defendant was putting his hands near his pockets.
Pepkowski stated that, at that point, he was fearful defendant was attempting to shield a weapon. Pepkowski asked defendant to place his hands on the vehicle, and Pepkowski performed a pat-down search. Pepkowski felt what appeared to be a gun. He seized the object, which was a .25 caliber semiautomatic pistol. Defendant was placed under arrest. Defendant disclosed his name, which Pepkowski had not directly requested pre-arrest. Pepkowski then learned there was a municipal court warrant for his arrest, for non-payment of $1500.
Judge Dennis Nieves granted defendant's motion to suppress the handgun. In an oral opinion, the court thoroughly reviewed the governing case law distinguishing between the three forms of police actions: field inquiry, investigative stop, and arrest. Citing State v. Stovall, 170 N.J. 346, 355 (2002) among other authorities, the court noted that a stop or seizure occurs when, in view of all the circumstances, a reasonable person in the defendant's position would not feel free to leave. The judge concluded that the police conducted an investigatory stop, not a field inquiry, and did so without the prerequisite reasonable and articulable suspicion that a crime had been committed. In concluding a stop occurred, the court reasoned:
First, the method of questioning suggests that it was an investigatory detention. . . . [T]he police here did not in a conversational tone ask the defendant or any of the other passengers if they wished to answer any questions. In fact, this officer testified that his first question to him was what he was doing there; a question which has implications.
. . . .
The analysis focuses on whether the police activating their flashers or sirens, commanded that the defendant halt, displayed any weapons or otherwise blocked the defendant's course are factors to be considered. In this case, I find that the
police engaged in three of these activities. . . . The police shined their spotlights directly into the vehicle the defendant was traveling in. And spotlights are not sirens or flashers, but it sure is . . . a clear suggestion that the officer's investigating and has an investigatory intent.
Now, I'm also mindful of this fact. That this defendant was not ordered or commanded to stop. But is it fair to assume that after seeing a fellow occupant ordered to stop, that this defendant could have felt that he was free to drive away from the police?
Also, the record should reflect that while the proceedings were before me, and the officer was on the witness stand, I went on Google Map[s] to that location to see exactly where the officer was referring to, when he approached his car. The officer parked his car perpendicular to the defendant's car on a road that only has one exit.
When looked at . . . in its totality, these circumstances are such that a reasonable person . . . in a similar situation would certainly not have felt free to leave. I find that the defendant was seized by the police . . . and was subject to an investigative detention . . . .
The court also concluded that the officer lacked reasonable and articulable suspicion to conduct the investigative stop. Citing Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), the court held that the anonymous caller's information lacked sufficient, independent corroboration to serve as an adequate basis for the stop. It "contained minimal predictive information and the police failed to independently corroborate any information of criminal activity." The court noted that the caller's tip lacked such details as the race of the occupants. The tip was "mostly inaccurate" except for correctly identifying the make and model of the vehicle parked on Harrell Avenue. The tipster was wrong about the number of passengers. There was no evidence of marijuana or its usage.
The court rejected the notion that the female passenger's exit from the vehicle created a basis for the stop. The court concluded that the woman was not engaged in flight; she lived on that cul de sac. In any event, citing State v. Dangerfield, 171 N.J. 446, 457 (2002), the court held that flight alone is insufficient to create reasonable suspicion. Relying on State v. Lund, 119 N.J. 35, 47 (1990), the court was unpersuaded by the argument that defendant's nervousness and furtive gestures justified the pat-down, given the absence of other facts supporting the intrusion.
Finally, the court rejected the State's argument, based on the doctrine of inevitable disclosure, that "even if the frisk of the defendant was illegal, that officer would still have found the handgun since he would have run the name through the system in the matter of course of doing business" and discovered the outstanding warrant. The judge concluded, "The very fact that the officer . . . was in the position to frisk the defendant or ask him about his driver's license was because he had already subjected him to an unlawful stop."
On appeal, the State argues that the officer lawfully approached defendant's vehicle and asked for his driver's license. The State contends defendant's failure to produce his license established a motor vehicle offense, and his subsequent conduct justified the pat-down, which led to the discovery and seizure of the gun. The State also argues that the search and seizure should be sustained based on inevitable discovery.
II.
We defer to the trial court's factual findings on a motion to suppress, 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 quotation marks and citation omitted). However, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).
The two principal issues in this case are (1) whether and when the police interaction with defendant rose to the level of an investigative detention; and, (2) whether there was reasonable and articulable suspicion to justify any such detention. Consequently, we summarize relevant principles governing field inquiries, which do not require any grounds or suspicion, and investigatory stops or detentions, which require "an articulable, reasonable basis for suspicion." See State v. Sirianni, 34 7 N.J. Super. 382, 387 (App. Div.), certif. denied, 172 N.J. 178 (2002). We focus on interactions involving persons who are already stopped, such as in a parked car. We then discuss what constitutes sufficient justification for an investigative stop or detention.
A police officer does not violate a citizen's right to be free from unreasonable searches and seizures by "'merely approaching . . . [him] on the street . . . , by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen[.]'" State v. Davis, 104 N.J. 490, 497 (1986) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)). Such encounters are known as field inquiries and require no well-grounded suspicion of criminal activity. Elders, supra, 192 N.J. at 246. "A permissible inquiry occurs when an officer questions a citizen in a conversational manner that is not harassing, overbearing, or accusatory in nature." State v. Nishina, 175 N.J. 502, 510 (2003). "[A] police request for identification does not, by itself, constitute a seizure or detention within the meaning of the Fourth Amendment." Sirianni, supra, 347 N.J. Super. at 390. See also State v. Stampone, 341 N.J. Super. 247, 252 (App. Div. 2001).
On the other hand, when the police encounter results in a restriction on a person's freedom of movement, the encounter rises to an investigatory stop. Elders, supra, 192 N.J. at 246-47. A person may be seized, even if the person does not try to leave.
Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.
[United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980).]
Our Court has recognized the fact of modern life that most citizens may feel obliged to respond to a police officer, even if the officer is engaged in a brief, non-intrusive encounter. That impulse does not alone suffice to convert a police interaction into an investigative detention.
Professor La[F]ave . . . asserts that "the critical inquiry would be whether the policeman, although perhaps making inquiries which a private citizen would not be expected to make, has otherwise conducted himself in a manner consistent with what
would be viewed as a nonoffensive contact if it occurred between two ordinary citizens." W.R. La[F]ave, 3 Search and Seizure, § 9.2 at 53. Thus, an officer would not be deemed to have seized another if his questions were put in a conversational manner, if he did not make demands or issue orders, and if his questions were not overbearing or harassing in nature. Id. at 53-54.
[Davis, supra, 104 N.J. at 497 n.6.]
An investigative detention can occur even if the police interaction takes place when the citizen is already stationary for reasons unrelated to the police action, such as when a citizen is seated in a parked car. "Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles." Sirianni, supra, 347 N.J. Super. at 387-88 (citing Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979)). On the other hand, such a brief, non-intrusive encounter may escalate into a stop. Id. at 388. See also Stampone, supra, 341 N.J. Super. at 253.
In considering the totality of circumstances involving police interactions with persons in parked cars, courts have considered the manner in which the police approach the vehicle and the subsequent police conduct. Gathering authority on the subject of "police contact with persons seated within parked vehicles," Professor LaFave has observed:
As noted earlier, the mere approach and questioning of such persons does not constitute a seizure. The result is not otherwise when the officer utilizes some generally accepted means of gaining the attention of the vehicle occupant or encouraging him to eliminate any barrier to conversation. The officer may tap on the window and perhaps even open the door if the occupant is asleep. A request that the suspect open the door or roll down the window would seem equally permissible, but the same would not be true of an order that he do so. Likewise, the encounter becomes a seizure if the officer orders the suspect to 'freeze' or to get out of the car. So too, other police action one would not expect if the encounter was between two private citizens — boxing the car in, approaching it on all sides by many officers, pointing a gun at the suspect and ordering him to place his hands on the steering wheel, or use of flashing lights as a show of authority — will likely convert the event into a Fourth Amendment seizure.
[Wayne R. LaFave, Search and Seizure, § 9.4(a), at 594-99 (5th ed. 2012).]
In Sirianni, supra, police observed the defendant, after 2:00 a.m., pull over to the side of the road in Bellmawr, and park. 347 N.J. Super. at 385. He was only a door or two down from a house under surveillance in connection with a homicide investigation. Ibid. The defendant did not emerge from his vehicle. Ibid. Instead, he dimmed his lights and reclined in his seat. Ibid. Something was burning in the ashtray. Ibid. The officers tapped on the window several times to inquire of the driver, ultimately awakening him. Ibid. The officers asked the driver for his name and credentials. Id. at 386. He told the officers his name; it matched the name of the vehicle's registered owner, which the police had learned by running the license plate. Ibid. However, the vehicle was registered to a Camden address. Ibid. As the driver searched for his credentials, and reached into the glove box and into a black bag, police observed marijuana in plain view. Ibid. A search of the driver's person revealed additional contraband. Ibid.
We held that the initial interaction between the officers and the defendant, involving the tap on the window, and the request for identification, did not constitute an investigative detention. Id. at 391-92. There were no other circumstances identified, such as the drawing of weapons, or the encircling of the vehicle, "that could convey to defendant that he was the subject of a particularized investigation." Id. at 392. The encounter only became a detention when the officers observed the marijuana in plain view. Ibid. At that point, there existed probable cause to arrest. Ibid.
In Stampone, supra, a police officer on patrol observed a car with Kansas tags parked on a residential street in Saddle Brook, at 4:50 p.m., near the site of a burglary that had occurred a week or two earlier. 341 N.J. Super. at 249. The officer stopped and approached the driver and asked him what he was doing there. Id. at 250. The driver responded he was waiting for his girlfriend and gave her address, but could only provide her first name. Ibid. Defendant was asked for his name and gave only his first name. Ibid.
The officer went to the address given and found no one home. Ibid. Confronted with this information, the defendant explained she was expected at 5:00. Ibid. She arrived soon thereafter and acknowledged they were dating. Ibid. However, twice before her arrival, the officer asked for the defendant's identification, and he refused. Ibid. The officer also asked for the defendant's driver's license, and the defendant explained it was in the trunk. Ibid.
Although he initially refused to get it, because it was raining, he ultimately retrieved an envelope from the trunk, returned to the car, and closed the door. Ibid. The officer saw the defendant reach for something that the officer could not see. Ibid. The defendant asserted he was simply trying to remove the license from the envelope. Id. at 255-56. The officer then opened the door and the defendant slammed it shut. Id. at 250. The officer opened the door again and pulled the defendant by the arm. Ibid. The manila envelope with the driver's license fell onto the passenger seat. Ibid. The officer arrested defendant for failure to exhibit a driver's license, N.J.S.A. 39:3-29, and disorderly conduct, N.J.S.A. 2C:33-2(a)(1). Id. at 251.
We held that the initial police contact and inquiries did not constitute an investigative detention. Id. at 252-53. However, the interactions escalated into one.
It is apparent to us, however, and we are sure it was apparent to defendant, that at some point well prior to defendant's arrest, defendant was not free to leave. [The officer] went from a field inquiry to a Terry stop without the benefit of articulable suspicion. Under defendant's version of events, that detention was explicit at the point [the officer] went to see if anyone was home at the adjacent residence and instructed defendant not to leave. On [the officer's] version it is no later than when he opened the car door and grabbed the defendant.
[Ibid. (citations omitted).]
Although there was no evidence that the police initially approached the defendants in Sirianni or Stampone with a show of authority, the facts differed in State v. Adubato, 420 N.J. Super. 167 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012). In that case, a patrol officer activated his emergency flashers as he approached a parked car that had its lights on and engine running. Id. at 174. It was after 10:00 p.m. in August. Id. at 173. The officer was responding to an anonymous call reporting that a car, with plates matching those of the parked vehicle, had been circling the neighborhood. Id. at 173-74. The driver reportedly kept exiting his vehicle. Id. at 173. The officer testified that the dispatcher may have indicated the driver was suspected to be intoxicated. Id. at 173-74.
As the officer approached the driver, he heard him speaking loudly on a cell phone. Id. at 174. As he reached the driver's side window, he detected the strong smell of alcohol; the defendant's eyes were bloodshot and his speech was slurred. Ibid. Asked where he was coming from, the defendant said he had been drinking at a pub. Ibid. The officer then ordered the defendant out of the car to perform field sobriety tests, which led to the defendant's arrest for driving while under the influence of intoxicating liquors, N.J.S.A. 39:4-50. Ibid.
We recognized that the officer did not have a reasonable, articulable suspicion of a violation of law until he actually reached the driver's door, and detected evidence of intoxication. Adubato, supra, 420 N.J. Super. at 181-82. We declined to hold that the operation of the flashers converted the initial field inquiry into an investigative stop. Id. at 180. Considering the totality of the circumstances, we noted that the officer did not actually stop the defendant because he was already parked.
While [the officer] could, of course, have pulled up behind Adubato without his flashers on, we are not willing to find that his decision to use his flashers when pulling up behind a stopped car late at night elevated his field inquiry into a Terry stop. We view the conduct as constitutionally ambiguous. The driver of such a car might be concerned that he or she was not free to drive away . . . but would also have been reassured that the person parking behind was a police officer rather than a stranger with potentially unfriendly intentions. The use of the flashing lights enhanced [the officer] and his partner's safety, as well as Adubato's.
[Id. at 180-81.]
We did not address whether the officers in Adubato were in a marked or unmarked police car. Arguably, the need to use flashers to identify oneself as police is greater in the latter case, and questionable in the former.
Even if the police interaction rises to the level of an investigatory stop or detention, it does not violate a person's constitutional rights, "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, supra, 192 N.J. at 247 (internal quotation marks and citations omitted).
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 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.
[Davis, supra, 104 N.J. at 504.]
The State need not prove the defendant actually committed the offense involved. State v. Williamson, 138 N.J. 302, 304 (1994). On the other hand, the investigatory stop may not be predicated on "unparticularized suspicion or 'hunch.'" Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968). Rather, the State must possess "some minimal level of objective justification for making the stop." Nishina, supra, 175 N.J. at 511 (internal quotation marks and citation omitted).
"An anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 127 (2002). "'[A]n anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.'" State v. Gamble, 218 N.J. 412, 428 (2014) (quoting Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)). "That is because 'ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations,' and an anonymous tipster's veracity is 'by hypothesis largely unknown, and unknowable.'" Ibid. (quoting White, supra, 496 U.S. at 329, 110 S. Ct. at 2415, 110 L. Ed. 2d at 308). "[T]he police . . . must verify that the tip is reliable by some independent corroborative effort." Rodriguez, supra, 172 N.J. at 127.
A tip of a man in a plaid shirt with a gun did not suffice to establish a basis for an investigative stop. Gamble, supra, 218 N.J. at 428 (discussing J.L., supra, 529 U.S. at 268-69, 120 S. Ct. at 1377-78, 146 L. Ed. 2d at 258-59). The tip lacked a basis of the tipster's knowledge, and included "no predictions of future behavior that could be corroborated to assess the tipster's credibility". Id. at 428-29. More than an accurate description of a person and his mode of transportation is needed from an anonymous tipster. Id. at 429 (discussing Rodriguez, supra, 172 N.J. at 131). However, greater weight is given to anonymous tips received through 911 calls, particularly when they pertain to an eyewitness report of dangerous driving. Ibid. (discussing State v. Golotta, 178 N.J. 205 (2003)).
III.
With these principles in mind, we first consider when the police officers' interaction with defendant rose to the level of an investigative detention or stop. We will then address whether at that point, the police intrusion was supported by the prerequisite reasonable, articulable suspicion.
We need not determine whether the police officers' mode of approach constituted a stop by itself. In Adubato, supra, the use of emergency flashers was considered an ambiguous fact. 420 N.J. Super. at 180. Emergency flashers may serve to identify the approaching vehicle as a police car, and the person exiting the vehicle as an officer. The need for self-identification may be greatest when the officer is in an unmarked vehicle, or in plain clothes, or in dark surroundings. There is no evidence that Pepkowski activated emergency flashers as he approached Ellis's vehicle. Rather, he operated his spotlight. Other courts apparently treat spotlights differently from flashing lights, and consider the former as more benign, and less likely to create the circumstances of a stop. See LaFave, supra, § 9.4(a) at 598, n.125 (collecting cases).
On the other hand, Pepkowski stopped his patrol vehicle perpendicular to Ellis's car, at the end of a cul de sac. Judge Nieves found that Pepkowski blocked, or at least impeded, Ellis's egress. Cf. State v. Tucker, 136 N.J. 158, 166 (1994) (seizure occurred when police chased the defendant and then blocked him in by patrol cars); Davis, supra, 104 N.J. at 498 (officer seized the defendant on bicycle when he "stopped defendant by blocking his path with his patrol car"). The perpendicular approach may also be considered more threatening, and intimidating, as the police vehicle itself is pointed directly at the driver.
Without deciding whether an investigative detention occurred at the moment Pepkowski pulled up his vehicle, we are convinced the interaction constituted an investigative detention when Pepkowski commanded Ellis's female friend to stop. Simply put, Pepkowski made it clear to the woman that she "was not free to leave." Mendenhall, supra, 446 U.S. at 554, 100 S. Ct. at 1877, 64 L. Ed. 2d at 509.
Although the command was not directed to Ellis, the message for him and the other occupant was clear, particularly when considered in light of the other circumstances. Pepkowski engaged in a show of authority. The woman was told she could not leave. The two officers surrounded the car. Pepkowski approached Ellis's side as the other officer approached the woman. The police car blocked defendant's egress.
The terms of Pepkowski's inquiry — he asked defendant what he was doing in the area — contributed to creating the perception that he was not free to leave. See State v. Costa, 327 N.J. Super. 22, 31 (App. Div. 1999) (stating that "questions that presuppose criminal conduct convert an otherwise benign field inquiry into a Terry stop," including the questions "what are you doing" and "are you doing something you're not supposed to be doing out here").
Notably, defendant responded by saying he was there to drop off his female friend, and was about to leave. Rather than permitting defendant to proceed on his way, even after the woman established that she lived nearby, the officer asked defendant to produce his identification. Only after defendant was unable to do so, did the officer have probable cause to issue a summons for violating the motor vehicle code. N.J.S.A. 39:3-29.
In summary, by the time Pepkowski asked defendant for his identification, the interaction was surely an investigative detention, and not a field inquiry. Although we held in Sirianni, supra, that a request for identification does not "by itself constitute a seizure," the request for identification did not occur in isolation. 347 N.J. Super. at 390. Rather, under the totality of circumstances, defendant was already seized when the request was made.
We also conclude that the police lacked reasonable, articulable suspicion of unlawful conduct to justify the seizure. The anonymous caller in Adubato, supra, did not provide a sufficient factual basis for the stop in that case. 420 N.J. Super. at 180. The same is true here. The anonymous caller did not call 911 or provide other indicia of reliability.
Moreover, aside from the fact that defendant was found at the same place and in the same make and model vehicle that the tipster described, the tip quickly proved to be unreliable. As Judge Nieves observed, the tipster claimed to have seen two men in the car. Instead, there were three individuals, including the woman in the back seat. The tipster claimed the men were smoking marijuana — the unlawful activity that prompted the police investigation. As soon as the woman exited the vehicle, the police must have realized the falsity of that allegation. No marijuana odor was detected.
Nonetheless, the police proceeded to conduct their investigation, instead of terminating it. A stop must be "'reasonably related in scope to the circumstances which justified the interference in the first place.'" State v. Dickey, 152 N.J. 468, 476 (1998) (quoting Terry, supra, 392 U.S. at 20, 88 S. Ct. at 1879, 20 L. Ed. 2d at 905). "Once the purpose of the traffic stop is completed, a motorist cannot be further detained unless something that occurred during the stop caused the officer to have a reasonable and articulable suspicion that criminal activity was afoot." United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999), cert. denied, 528 U.S. 1176, 120 S. Ct. 1207, 145 L. Ed. 2d 1110 (2000). See also Washington v. Penfield, 22 P.3d 293, 295 (Wash. Ct. App. 2001) (stating police were not authorized to continue stop, originally based on suspicion that unlicensed female owner was driving, when officer verified driver was male).
Inasmuch as Pepkowski's purpose in continuing the stop was to obtain defendant's identification, the discovery that he had none was obtained by exploiting the illegality of the stop; consequently, that evidence must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1962) (stating that in deciding whether to suppress evidence, the question is whether the evidence "has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint") (internal quotation marks and citation omitted). See State v. Shaw, 213 N.J. 398, 412-13, 422 (2012) (suppressing heroin found on person of defendant arrested pursuant to warrant after defendant was unlawfully seized and his identity ascertained). The subsequent removal of defendant from the vehicle, and the search of his person based on his furtive movements, emanated from the unlawful stop, and was therefore unlawful as well.
Finally, we need only briefly address the State's argument that, even if the stop was unjustified, the seizure of the handgun should be sustained under the doctrine of inevitable disclosure. The State argues that "once [Pepkowski] determined defendant's name, he would have discovered defendant's outstanding warrant, resulting in defendant's immediate arrest, and the inevitable discovery of the handgun on his person."
We are unconvinced. To establish inevitable discovery, the State must prove, clearly and convincingly, that the evidence obtained through an illegal search would inevitably have been discovered, and therefore should not be suppressed. State v. Sugar, 100 N.J. 214, 240 (1985). The State must show:
(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.See State v. Johnson, 120 N.J. 263, 290 (1990) (finding "inevitable discovery" where detective already in process of preparing affidavit in support of search warrant based on information independent of the tainted source); State v. Finesmith, 406 N.J. Super. 510, 522-24 (App. Div. 2009) (applying inevitable discovery where, had police not discovered laptop as a result of defendant's suppressed statement, it would have discovered it pursuant to warrant that State had already independently procured); State v. Hinton, 333 N.J. Super. 35, 41-42 (App. Div.) (inevitable discovery doctrine applies where backup officer's contemporaneous and independent computer check would have produced same information obtained from unlawful entry into vehicle), certif. denied, 165 N.J. 678 (2000).
[Id. at 238.]
As we have discussed, the State learned defendant's identity as a result of its unlawful detention of defendant. The State provides no other basis for the discovery of that information, and the warrant thereafter.
In sum, the court did not err in suppressing the handgun seized from defendant.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION