STATE OF NEW JERSEY VS. DARIUS A. WILLIAMS (17-05-1303, CAMDEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5651-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARIUS A. WILLIAMS,
Defendant-Appellant.
________________________
Submitted October 27, 2020 – Decided December 17, 2020
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 17-05-1303.
Joseph E. Krakora, Public Defender, attorney for
appellant (Patrick D. Laconi, Designated Counsel on
the brief).
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Rachel M. Lamb, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Darius A. Williams appeals from his conviction following a
conditional retraxit plea of guilty to third-degree possession of a rifle, N.J.S.A.
2C:39-5(c)(1).1 On appeal, he argues the motion judge erred in denying his
motion to suppress marijuana, crack cocaine and cash found on his person
following his arrest, a handgun found under a vehicle near the location at which
he was arrested and marijuana, a rifle and ammunition seized from that vehicle.
Specifically, he contends:
POINT I
THE PRE-TRIAL COURT SHOULD HAVE
SUPPRESSED THE EVIDENCE OF MARIJUANA
RECOVERED FROM WILLIAMS' PERSON, AND
THE HANDGUN RECOVERED DURING THE
SEARCH INCIDENT TO WILLIAMS' ARREST
BECAUSE THE POLICE SEIZED WILLIAMS[]
WITHOUT A REASONABLE ARTICULABLE
SUSPICION THAT WILLIAMS WAS ENGAGED IN,
OR ABOUT TO ENGAGE IN, CRIMINAL
ACTIVITY, RENDERING THE RECOVERY OF
MARIJUANA AND THE HANDGUN FRUIT OF THE
POISONOUS TREE.
A. THE POLICE SEIZED [DEFENDANT].
1
Per the terms of the plea agreement, defendant's other indicted charges were
dismissed: third-degree possession of a controlled dangerous substance,
N.J.S.A. 2C:35-10(a)(1) (count one); second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b)(1) (count two); and third-degree resisting arrest,
N.J.S.A. 2C:29-2(a)(3)(a) (count four).
A-5651-17T4
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B. THE POLICE SEIZED [DEFENDANT]
WITHOUT REASONABLE SUSPICION
THAT CRIMINAL ACTIVITY WAS
AFOOT; THEREFORE THE SEIZURE
VIOLATED THE FOURTH
AMENDMENT.
C. THE PRE-TRIAL COURT ERRED IN
NOT SUPPRESSING THE EVIDENCE
OF ILLEGAL DRUGS AND CASH
FOUND IN [DEFENDANT'S] POCKET.
D. THE PRE-TRIAL COURT
INCORRECTLY HELD THAT
[DEFENDANT] RESISTED ARREST
AND ABANDONED THE HANDGUN.
POINT II
THE MARIJUANA, RIFLE[] AND AMMUNITION
SEIZED FROM [DEFENDANT'S] AUTOMOBILE
SHOULD HAVE BEEN SUPPRESSED AS A
RESULT OF THE UNLAWFUL SEARCH OF
[DEFENDANT'S] AUTOMOBILE, IN VIOLATION
OF THE AUTOMOBILE EXCEPTION TO THE
WARRANT REQUIREMENT.
We agree with defendant that the motion judge erred in finding the police
conducted a proper investigatory stop of defendant, justifying the subsequent
actions that led to defendant's arrest and the seizure of evidence from his person.
But we agree with the motion judge's conclusion, if not all of his reasoning, that
the handgun under the vehicle and the evidence found in the vehicle were
A-5651-17T4
3
properly seized. As such, we affirm in part, reverse in part and remand for
further proceedings.
The motion judge rendered an oral decision immediately after an
evidentiary hearing at which he heard testimony from two police officers and a
woman who was sitting in the passenger seat of the vehicle that was searched.
We defer to the judge's factual findings—especially those that "are substantially
influenced by his opportunity to hear and see the witnesses and to have the 'feel'
of the case, which a reviewing court cannot enjoy," State v. Johnson, 42 N.J.
146, 161 (1964)—so long as those findings are "supported by sufficient credible
evidence in the record," State v. Elders, 192 N.J. 224 (2007).
The motion judge concluded police officers Basil Dicerbo and Bernard
Tighe were justified in performing an investigatory stop of defendant and
Tyrone Wilson based on Dicerbo's testimony that for approximately two hours
the officers observed defendant and Wilson "move away or . . . secrete
themselves" each time the officers' patrol car approached their location in the
1300 block of Chase Street, "a high-crime area in a location where a known . . .
drug set . . . operate[d]." Shortly thereafter the officers parked their patrol car
on a different block and walked toward the men. The judge determined "there
certainly was basis for suspicion" based on those facts.
A-5651-17T4
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The judge continued: "To the extent that there was not reasonable[,]
articulable suspicion that a crime was being committed" at that point, the added
fact that as the officers turned onto Chase Street, "someone in a car at the corner
yell[ed], '[y]urp,' . . . a common term to warn drug dealers that police are
approaching," coupled with the other circumstances known to the officers, "at
that point [provided] reasonable[,] articulable suspicion that criminal activity
was afoot[.]"
The judge found "any potential suspicion" was "increased" when
defendant bladed his body when Dicerbo approached him, providing a "basis to
at least perform a Terry[2] stop . . . and detain [defendant and] do at least a
protective search for weapons." The motion judge found:
It was appropriate at that point in order to protect
himself to ask [defendant], particularly where he saw a
bulge—he asked him to remove his hands from his
pocket—after he had him sit on—sit down, he asked
him to remove his hands from his pocket. [Defendant]
then put his hands back in. The officer observed a bulge
in the pocket. It was appropriate to ask what's in the
pocket in order to protect officer safety.
Once [defendant] responded—first off, at that point, the
officer has—he's permitted to make a search at that
point for weapons, which would have included a search
of that pocket, but, once [defendant] indicates that he
has marijuana—and I do find the officer credible, even
2
Terry v. Ohio, 392 U.S. 1 (1968).
A-5651-17T4
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though the defense argues in its brief that the officer's
testimony or statement to that effect is not credible, I
do find the officer himself, based on observing him, his
demeanor, his cooperativeness as he testified, to be
credible—so that creates probable cause when that
acknowledgement is made. Therefore, I find it—the
drugs found on [defendant] are admissible.
There is no question that defendant was seized. Dicerbo said as he
approached defendant on the sidewalk, defendant "bladed his body and turned
around to walk up the steps of a porch" five to ten feet from the vehicle. Dicerbo
testified defendant's blading was indicative of "carrying either a firearm or
narcotics." Based on his training and experience, he believed defendant "was
armed and dangerous." He "grabbed [defendant] and told him to take a seat,"
explaining if he did not "pat him down right then and there for weapons,
[defendant] would have walked right inside the house[,] and [he] had to take
control of the situation and tell him to sit down." Defendant complied.
An investigatory stop, familiarly known as a Terry stop, occurs when
police detain a person who would not reasonably feel free to leave, even though
the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-
56 (2002); see also Terry, 392 U.S. at 20-22. Dicerbo's conduct left no doubt
that defendant did not reasonably believe he could walk away from the officer.
A-5651-17T4
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Under Terry, however, a police officer can detain an individual for a brief
period if the stop "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." State v. Rodriguez, 172 N.J. 117, 126 (2002)
(quoting Terry, 392 U.S. at 21). Under this standard, "[a]n 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." State v. Davis, 104 N.J. 490, 504 (1986).
Reviewing the judge's conclusions of law de novo, State v. Gamble, 218
N.J. 412, 425 (2014), reversal is required because the motion judge's findings
are so clearly mistaken "that the interests of justice demand intervention and
correction," Johnson, 42 N.J. at 162; see also Elders, 192 N.J. at 244.
Accepting the motion judge's finding that Dicerbo's testimony was
credible, the circumstances known to Dicerbo when he effected the stop were
that he observed defendant and Wilson during an approximate two-hour span
standing in a high-crime area in a location where a known drug set operated.
When asked on cross-examination how he distinguished "between the guys who
are the criminals and the people who are just standing out hanging around,"
Dicerbo said his suspicion is raised "when people see [his] marked patrol vehicle
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[and] immediately walk away to the opposite direction," prompting his
investigation. The officer said he wanted to "investigate the criminal nature that
[he] believed . . . was going on." When asked on cross-examination what
"specifically . . . [he] thought these people were doing," Dicerbo replied, "I don't
know; I was investigating it. . . . I believe—it's a known drug set, so I believed
that they were selling drugs." When asked what caused him to believe the two
were selling drugs, he continued: "Because it's a known drug set and that's what
happens. [T]hey walk away when they see police because . . . they don't want—
they're not comfortable when they see police."
Dicerbo also testified that as the officers were about to turn onto Chase
Street, a car "came right to the stop sign" at the intersection, and the occupant
yelled, "yurp," and drove off. Dicerbo associated that term with a signal given
by a lookout to notify drug dealers of police presence in the area. Dicerbo saw
defendant and Wilson as he walked onto Chase Street. Wilson was "looking
around." Dicerbo passed him and approached defendant who "bladed his body
then turned around" and walked away. Dicerbo did not recall saying anything
to defendant, but may have said something approximating, "[h]ey, Buddy, come
here," because Dicerbo believed defendant was "armed and dangerous."
Dicerbo grabbed defendant as he walked up the stairs and told him to sit down.
A-5651-17T4
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Considering the officer's observations, see Davis, 104 N.J. at 501, the
totality of the circumstances does not establish a reasonable and articulable
suspicion that defendant was engaged or was about to be engaged in criminal
activity, see id. at 504. In analyzing those circumstances, we view the "whole
picture" rather than taking each fact in isolation. Stovall, 170 N.J. at 361; see
also State v. Nelson, 237 N.J. 540, 554 (2019). This analysis also considers
police officers' "background and training," Nelson, 237 N.J. at 555, including
their ability "to make inferences from and deductions about the cumulative
information available to them that 'might well elude an untrained person,'" ibid.
(quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)).
The formula we utilize is not strict; it is "a sensitive appraisal of the
circumstances in each case." Davis, 104 N.J. at 505. The officer's observations
are "seen and weighed not in terms of library analysis by scholars, but as
understood by those versed in the field of law enforcement." United States v.
Cortez, 449 U.S. 411, 418 (1981); see also Davis, 104 N.J. at 501.
Under these precepts, as Dicerbo admitted, he had nothing more than a
belief that defendant was dealing drugs and was armed. His subjective belief
was a hunch which does not establish the requisite reasonable, articulable
suspicion. See State v. Arthur, 149 N.J. 1, 8 (1997).
A-5651-17T4
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Dicerbo admitted he did not observe defendant or Wilson engage in any
drug-related activity such as exchanges, or any criminal activity. He observed
nothing more than the two men standing near a vehicle and turning and walking
away from the police vehicle when it approached.
Even when police approach, citizens have the right to walk away and their
"'refusal to listen or answer does not, without more, furnish' grounds for [their]
detention." State v. Shaw, 213 N.J. 398, 410 (2012) (quoting Florida v. Royer,
460 U.S. 491, 498 (1983)). It is axiomatic, then, that citizens have the right to
walk away without fear of detention when, absent any interaction with police,
they simply see a police vehicle. See State v. Williams, 410 N.J. Super. 549,
556 (App. Div. 2009) (questioning whether a defendant who rode a bicycle away
from approaching officers fled because police had not ordered him to stop,
nevertheless reiterating flight alone cannot justify a Terry stop).
As Dicerbo conceded on cross-examination, people walking away from
police as they approach does not inform an officer that they are "up to no good."
On direct examination, he said his belief that the pair's act of walking away from
the patrol car indicated they were "involved in some type of criminal activity"
was based on his training and experience. Dicerbo did not, however, explain
what training and experience—less than four years as a police officer, with
A-5651-17T4
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basic-academy training in narcotics, and fifty to seventy-five narcotics arrests
and five to ten firearms arrests—led him to that conclusion. Nor did he explain
what training and experience he had with suspects blading their bodies led him
to conclude defendant was armed and dangerous. The officers saw nothing
during their two-hour observation that equated with weapons possession or
narcotics.
Defendant did not relinquish his constitutional rights by his presence in a
high-crime area. See Shaw, 213 N.J. at 420. And the person yelling, "yurp,"
did little to add to the totality of the circumstances. It was a known location for
narcotics distribution. People standing in those areas retain their right against
random stops just as those in high-crime areas—usually, they are one and the
same. Moreover, nothing linked the voiced warning to defendant. As we have
already detailed, defendant did not flee when the person yelled the warning.
Though Wilson "look[ed] around," defendant remained in the same location and
did not attempt to go up the stairs until Dicerbo was close by.
We emphasize that defendant's actions, taken as a whole, did not present
both innocuous and criminal activity, open to interpretation. See State v.
Citarella, 154 N.J. 272, 279-80 (1998) ("The fact that purely innocent
connotations can be ascribed to a person's actions does not mean that an officer
A-5651-17T4
11
cannot base a finding of reasonable suspicion on those actions as long as 'a
reasonable person would find the actions are consistent with guilt.'") (quoting
Arthur, 149 N.J. at 11).
The one record fact that would have justified the stop was not observed
until after defendant was detained. Only when defendant was seated on the steps
did Dicerbo notice the bulge in defendant's pockets after he complied with
Dicerbo's order to take his hands out of his pockets. That observation, and
defendant's ensuing admission that he possessed marijuana on his person,
leading to his arrest and the discovery of marijuana, crack cocaine and cash,
stemmed from the unlawful detention. Accordingly, those items must be
suppressed. See Shaw, 213 N.J. at 421-22.
The seizure of the gun found under the vehicle proximate to where
defendant was arrested, however, requires a discrete analysis. The motion judge
found Tighe heard a metallic object hit the ground as he and Dicerbo attempted
to handcuff defendant who was resisting arrest. The judge denied suppression
because
the gun under the car is not only in plain view, . . . at
that point, not only is it abandoned property, but in
order to properly protect the community it would be
unreasonable to ask officers to leave a handgun that
they observe in a public area for children or others.
A-5651-17T4
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His recitation of those warrant and standing exceptions—without analysis
of their components—ignored hornbook law that our Supreme Court quoted with
approval in State v. Tucker, 136 N.J. 158, 172 (1994) (quoting 1 Wayne R.
LaFave, Search and Seizure § 2.6(b), at 471-72 (2d ed. 1987)):
"Property is not considered abandoned when a person
throws away incriminating articles due to the unlawful
actions of police officers." Thus, where a person has
disposed of property in response to a police effort to
make an illegal arrest or illegal search, courts have not
hesitated to hold that property inadmissible.
The Court recognized Professor LaFave's admonition that to admit evidence that
was discarded during an illegal seizure would encourage constitutional
violations because "attempts to dispose of incriminating evidence [are] common
and predictable consequences" of police misconduct. Ibid. (quoting 4 LaFave,
§ 11.4(j), at 459-60).3 The Court held Tucker's discard of the cocaine packets
as he ran from the police "transpired after he no longer was free to leave and
after the police had unlawfully seized him"; thus the evidence should have been
suppressed. Id. at 173.
3
Professor LaFave's principles, cited in Tucker, remain unchanged in the most
recent edition of his hornbook. See 1 Wayne R. LaFave, Search and Seizure §
2.6(b), at 923-24 (6th ed. 2020); 6 id. § 11.4(j), at 500.
A-5651-17T4
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Evidence found after an illegal seizure should be excluded if it "was a
product of the 'exploitation of [the primary] illegality'—the wrongful
detention—[rather than a product] of 'means sufficiently distinguishable to be
purged of the primary taint.'" Shaw, 213 N.J. at 413 (quoting Wong Sun v.
United States, 371 U.S. 471, 488 (1963)). The determination whether significant
attenuation exists to dissipate the taint of an illegal seizure does not focus on
whether "but for" the police misconduct, the evidence would not have been
seized. Ibid. Instead, it analyzes three factors announced in Brown v. Illinois,
422 U.S. 590, 603-04 (1975), and adopted by our Supreme Court: "(1) the
temporal proximity between the illegal conduct and the challenged evidence; (2)
the presence of intervening circumstances; and (3) the flagrancy and pu rpose of
the police misconduct." State v. Johnson, 118 N.J. 639, 653 (1990).
In perpending these factors, we have suppressed evidence where it was
discarded during flight after an illegal seizure. We excluded cocaine discarded
by a defendant as police, who ran after him, unlawfully grabbed him as he
pedaled away. Williams, 410 N.J. Super. at 553, 564. We suppressed a dollar
bill containing cocaine residue that a driver threw over a guardrail while
resisting an unlawful pat down search. State v. Casimono, 250 N.J. Super. 173,
186-88 (App. Div. 1991). And in Shaw, the Court suppressed two bricks of
A-5651-17T4
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heroin possessed by a defendant who was unlawfully stopped for an arrest
warrant check, and later arrested on a parole warrant; the Court ruled the parole
warrant was not an intervening circumstance that purged the taint of the
unlawful detention. 213 N.J. at 421-22.
In those cases, however, defendants did not resist arrest. Dicerbo's
testimony, deemed credible by the motion judge, established that after defendant
responded that the bulge in his pocket was "weed," Dicerbo had defendant stand
and grabbed his right arm. Defendant resisted by pulling his arm "closer to his
body as if he [were] reaching for something towards his . . . stomach area."
Defendant attempted to flee and both officers "took him to the ground." As he
went to the ground, Tighe "heard the distinctive sound of metal hit the ground"
as defendant reached out his hands toward the nearby vehicle under which the
gun was found after defendant was handcuffed.
Obviously, the alleged discard of the gun by defendant took place very
shortly after defendant was seized. The temporal proximity factor, though, "'is
the least determinative' of the three factors." Id. at 416 (quoting State v.
Worlock, 117 N.J. 596, 623 (1990)). Nevertheless, the brief time lapse suggests
defendant's alleged discard was related to the seizure.
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Turning to the third factor, which "requires consideration of the manner
in which the defendant was . . . detained," State v. Chippero, 164 N.J. 342, 357
(2000), we recognize police need not resort to physical abuse before their
conduct can be considered flagrant, and "[t]he right of freedom of movement
without unreasonable interference by government officials is not a matter for
debate at this point in our constitutional development," Shaw, 213 N.J. at 420-
21. Dicerbo and Tighe stopped defendant because of their mistaken belief
Wilson's and defendant's conduct established a reasonable and articulable
suspicion they were selling drugs and defendant was armed. We cannot
countenance such police behavior. But we note the officers did not stop
defendant because of his race or some other nefarious reason or subject
defendant to any unprofessional behavior. The officers did not resort to any
physical contact, other than grabbing defendant as he attempted to go up the
steps, until he resisted arrest.
A defendant's post-seizure conduct can constitute an intervening act that
breaks the nexus to the unlawful stop under the second factor. In State v.
Williams, 192 N.J. 1, 5, 15-18 (2007), the Court deemed defendant's acts of
pushing one of the detaining officers and fleeing sufficient to attenuate the taint
from the unlawful stop and attempted pat-down to warrant admission of a
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handgun found on the defendant after police caught him. Although we held the
dollar bill discarded by the defendant in Casimono should have been suppressed,
we determined a paper bag containing cocaine was admissible because that
defendant disregarded the officer's command to remain outside the car, returned
to his car, retrieved the bag and threw it over the guardrail. 250 N.J. Super. at
186-87. We determined that defendant's actions caused "a significant break in
the chain of causation between the illegal [pat down] searches and the discovery
of the cocaine." Id. at 187. And in State v. Seymour, 289 N.J. Super. 80, 83-85
(App. Div. 1996), we held the taint from an unlawful motor vehicle stop was
purged when the defendant disregarded the police signal to stop leading to a
mile-and-one-quarter eluding during which defendant increased his speed,
swerved into the shoulder and threw cocaine from the car.
Defendant allegedly discarded the gun found under the car, not during the
initial seizure, but during his resistance against the police officers. The Court
cogently differentiated between circumstances where a defendant does not take
any action after an unlawful police action and those where a defendant commits
a subsequent offense, contrasting the defendants in their decisions in Williams
and Shaw:
In State v. Williams, . . . we noted that had the
"defendant merely stood his ground and resorted to the
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court for his constitutional remedy, then the unlawful
stop would have led to the suppression of the
[evidence]." 192 N.J. at 17[]. Shaw did not resist or
take flight. He has sought his remedy in this Court and
is entitled to relief.
[Shaw, 213 N.J. at 422.]
Similarly, had police discovered the gun on defendant's person during the
unlawful stop, the gun would have been suppressed. But the balance of the three
Brown factors leads us to conclude the gun found under the car should not be
excluded. Defendant's intervening resistance is a significant factor in our
determination that the taint from the officers' unlawful stop was sufficiently
attenuated. See Worlock, 117 N.J. at 623 (recognizing that intervening events
"can be the most important factor in determining whether [evidence] is tainted").
An analysis of those same three factors compels our conclusion that the
evidence found inside the Hyundai is admissible. The motion judge found that
Officer Matthew Greer's credible testimony established he "was asked to address
for safety reasons an individual sitting in a vehicle" near the location where
defendant was arrested. When he looked into the vehicle parked on the public
street, he saw a jar containing what, based on his training and experience, he
recognized to be marijuana. The judge determined the unplanned plain view
discovery established probable cause for the subsequent search of the vehicle
A-5651-17T4
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under the automobile exception to the warrant requirement, during which
additional marijuana, a rifle and ammunition were discovered.
Greer's testimony supports the judge's findings. He "was just standing by
for scene safety to make sure the scene was secure . . . [and] nobody else came
onto the scene" after defendant and Wilson were detained. One of the several
officers on the scene mentioned that vehicle was associated with defendant or
Wilson, or both, prompting Greer to go "over to make sure it was secure." He
approached the vehicle, occupied by a female in the front passenger seat, on the
driver's side and, standing on the street peering into the vehicle, saw "a jar of
marijuana on the floor of the driver's seat." From his training—including that
in the packaging of narcotics—and experience—four years as an officer and
detective who made possibly hundreds of arrests, half of them involving
narcotics—he recognized the tinted jar as common packaging for marijuana.
Greer ordered the female to exit the vehicle, recovered the jar he saw and
searched the interior of the car. Other officers found the remaining evidence in
the trunk.
Again, Greer's observations were made after defendant resisted arrest
following the unlawful stop, but while defendant was still on scene. Greer's
actions were attenuated not only by defendant's intervening conduct, but by
A-5651-17T4
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Greer's purpose in scene security, an action that had no direct correlation to the
unlawful stop. We thus reject defendant's argument that the vehicle search was
directly related to the unlawful stop. Greer's search did not come about by
exploitation of the unlawful stop; it had a discrete genesis. As such the
discovery was independent of the unlawful police conduct and suppression was
not required. See State v. Curry, 109 N.J. 1, 14-15 (1987).
We also reject defendant's argument that because of Greer's knowledge of
the link between defendant and the vehicle, the search of the vehicle ran afoul
the automobile exception strictures. The most recent statement of the law
governing that exception "[i]n the aftermath of Witt,[4] . . . now authorizes
warrantless on-the-scene searches of motor vehicles in situations where: (1) the
police have probable cause to believe the vehicle contains evidence of a criminal
offense; and (2) the circumstances giving rise to probable cause are
unforeseeable and spontaneous." State v. Rodriguez, 459 N.J. Super. 13, 22
(App. Div. 2019). The record does not support defendant's argument.
Dicerbo and Tighe did not approach defendant and Wilson because of
anything to do with the vehicle. Moreover, Greer testified on cross-examination
he was not told the person sitting in the car was involved in anything improper.
4
State v. Witt, 223 N.J. 409 (2015).
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Indeed, no officer had gone over to the vehicle even though defendant and
Wilson had been secured and other officers were at the scene. Greer's only
purpose in approaching the vehicle was "to make sure that there was . . . no risk
at that point." He looked into the vehicle "to see . . . who was in there and . . .
if there [were] any weapons or anything like that."
He was not looking for anything related to defendant. As he testified, "[i]t
wasn't [his] investigation." There is no evidence his sighting of the jar of
marijuana was foreseeable and not spontaneous. His unchallenged plain view
sighting led to the complete search of the vehicle at the scene by officers who
"had the discretion to proceed instead with a warrantless roadside search,
because the two critical elements of Witt, i.e., probable cause and spontaneity,
were satisfied. In addition, there was no unreasonable delay in the officers
making their decision to proceed with the search at the scene." See id. at 15.
We reverse the motion judge's denial of defendant's motion to suppress
evidence seized from his person following the unlawful stop, but affirm the
denial of the motion to suppress the gun found under the car and the evidence
seized from the interior and trunk of the vehicle.
Notwithstanding the State's contention that defendant pleaded guilty to
the possession of the rifle found in the vehicle, he did so after the judge denied
A-5651-17T4
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his motion. We vacate that plea because there is a possibility defendant woul d
not have pleaded guilty if he knew the evidence seized from his person was
suppressed. We realize defendant may still wish to plead guilty despite the
partial suppression, but we have no way to discern defendant's assessment of the
strengths and weaknesses of the revised evidence. Hence, we remand this matter
to the trial court for further proceedings.
Reversed in part, affirmed in part and remanded. We do not retain
jurisdiction.
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