STATE OF NEW JERSEY VS. RICKEY L. BARLEY STATE OF NEW JERSEY VS. JUAN K. DUNLAP STATE OF NEW JERSEY VS. RICKEY L. BARLEY (14-04-0383 AND 15-01-0078, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) ( 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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2122-16T4
A-2436-16T4
A-4645-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICKEY L. BARLEY, a/k/a
RICKEY BARCLAY,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUAN K. DUNLAP,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICKEY L. BARLEY, a/k/a
RICKEY BARCLAY,
Defendant-Appellant.
Argued March 9, 2020 – Decided April 3, 2020
Before Judges Sabatino, Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 14-04-
0383 and 15-01-0078.
Jack L. Weinberg, Designated Counsel, argued the
cause for appellant Rickey L. Barley (Joseph E.
Krakora, Public Defender, attorney; Jack L. Weinberg,
on the briefs).
Steven William Kirsch, Designated Counsel, argued the
cause for appellant Juan K. Dunlap (Joseph E. Krakora,
Public Defender, attorney; Steven William Kirsch and
Tamar Yael Lerer, Assistant Deputy Public Defender,
of counsel and on the briefs).
Patrick F. Galdieri, II, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Christopher L.C. Kuberiet, Acting
Middlesex County Prosecutor, attorney; Susan Lynn
Berkow, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the briefs in A-
2122-16 and A-2436-16; Patrick F. Galdieri, II, of
counsel and on the brief in A-4645-17).
PER CURIAM
A-2122-16T4
2
This case arises out of a home invasion in which three masked men forced
their way into an apartment, held the occupants at gunpoint, and then fled from
the premises without taking anything. Within about two minutes after the
incident was reported through 9-1-1, two police officers observed defendants
Juan Dunlap and Rickey Barley, along with a third man, sitting in a car parked
a block away from the victims' apartment. Believing that the three men were
the same ones who had just committed the attempted armed robbery, the officers
swiftly apprehended and arrested the men without a warrant.
In the course of their investigation, the police found a black handgun on
the passenger side floor of the car, plus other incriminating items inside,
including ski masks and a backpack. In addition, a silver handgun fell out of
Dunlap's waistband after he was handcuffed. The victims were unable to
identify the three arrested men as their perpetrators. No forensic evidence tied
them to the crime scene.
Defendants were charged with armed robbery, burglary, conspiracy, and
various weapons offenses. They moved before trial to suppress the fruits of the
warrantless search and seizure. Following a suppression hearing, the motion
judge found the officers' actions constitutional, determining that they had
reasonable suspicion to stop the car and probable cause to arrest the men.
A-2122-16T4
3
After the backseat passenger co-defendant was severed from the case, the
case proceeded to a jury trial against Dunlap and Barley. The State's key proofs
were the items seized from the car. Defendants were found guilty of all charges.
In addition, at a separate later trial, Barley was found guilty of a "certain
persons" weapons offense. The court imposed lengthy sentences on bot h
defendants.
In these back-to-back appeals, which we consolidate for purposes of this
opinion, defendants principally argue that the trial court incorrectly ruled the
warrantless stop and ensuing arrest and search were constitutional. They further
contend: the jury should have been charged on identification; the jury should
have been instructed on attempted robbery and received a fuller explanation of
the elements of theft; the jury should have been charged on vicarious liability;
the court should have provided a limiting instruction with respect to the evidence
of the silver gun; the court should have granted defendants' motions for acquittal
and a new trial; the prosecutor made improper comments in summation; the jury
charge and verdict sheet were defective in allowing non-unanimous votes on
certain elements; and the consecutive sentences imposed were unjustified and
excessive.
A-2122-16T4
4
For the reasons that follow, we reverse defendants' convictions because
the court should have granted their pretrial suppression motion. In particular,
we hold the State failed to establish that the officers had probable cause to
forcibly remove defendants from their vehicle at gunpoint and immediately
handcuff them on the ground without a warrant. Because the evidence seized
from the vehicle was tainted by the officers' unconstitutional actions, defendants'
convictions based on that evidence must be vacated.
I.
The Home Invasion1
On January 4, 2014, a female tenant, her adult daughter, and the daughter's
two-year-old son were in the tenant's basement apartment on Louis Street in
New Brunswick.2 Shortly before 7:30 p.m., there was a knock at the door. When
the tenant asked twice who was outside but received no answer, she opened the
door. Three men, the tallest of whom was carrying a silver handgun, pushed
inside.
1
We describe the facts with the benefit of the testimony that emerged at trial.
However, in evaluating the search-and-seizure issues, we confine our analysis
to the evidence that emerged at the pretrial suppression hearing.
2
Although the record is not impounded, we discern no reason to mention the
victims' names in this opinion, as their identities are not germane to our analysis.
A-2122-16T4
5
At trial, the tenant and her daughter said that the intruders were all African
American men whose masks covered their faces except the skin around their
eyes and noses. The man with the gun was about six feet tall, and the tenant
said he had a long nose. She said he was wearing a jacket and a black or gray
"sweater[] for the cold." The tenant testified that all three men were wearing
gray or black clothing and had winter hats on. The daughter said one man was
carrying a dark gray or black "book bag" or backpack.
The tallest man pushed the tenant into the kitchen and against the stove,
pressing the gun into her face hard enough to leave a mark. He then shoved her
into the living room, where the daughter and her son were sitting on the couch.
The man pointed the gun at all three victims.
According to the tenant and her daughter, the man with the gun went to
stand by the apartment door, the man with the backpack stayed in the living
room to watch the victims, and the third man went into a bedroom. The man in
the bedroom tilted a chair over and checked around the room, opening drawers
and looking through clothes. However, he did not take anything.
The daughter asked what the men were looking for and the man with the
backpack told her to shut up. When the daughter pulled out her cell phone and
tried to call 9-1-1, he said, "Puta, pass me your cellular phone, you bitch." He
A-2122-16T4
6
did nothing when she refused. The daughter continued to ask what the three
intruders wanted, and the gunman became angry.
When the third man came out of the bedroom, all three intruders ran out
of the apartment. The daughter immediately called 9-1-1 and described the
incident. Police arrived at the apartment within two minutes. According to the
daughter, the incident had lasted less than five minutes. The tenant and her
daughter found that the perpetrators had taken nothing, despite there being
jewelry and money present.
The Police Response and Search and Seizure
At approximately 7:25 p.m. that night, while patrolling the area of Louis
Street in their marked car, Officers Jeffrey Monticello and Carlos Adorno of the
New Brunswick Police Department received a dispatch reporting the home
invasion. The dispatch advised that three men had entered a residence; the
tallest of the three had a handgun; one was carrying a book bag; and they had
fled toward Somerset Street on Louis Street. The initial dispatch did not state
the race of the intruders.
The officers took about one minute to arrive at the intersection of
Somerset and Louis Streets. There was snow on the ground. According to the
A-2122-16T4
7
officers, they didn't see anyone walking around, and vehicle traffic in the area
was "light."3
Monticello turned off all his car's lights and sirens and drove slowly
through the intersection. He briefly looked toward a nearby vehicle with a single
occupant. According to Monticello, Adorno then told him, "I got three black
males slouching down in a car over here." Adorno indicated a Hyundai parked
on the northern side of Somerset Street. This location was within a block of the
victims' apartment. The record indicates it was about eighty yards away.
Contrary to Monticello, Adorno testified at the suppression hearing that
he did not mention the car occupants' race to Monticello. Later at trial,
Monticello amended his testimony from the suppression hearing, and
acknowledged that Adorno did not say to him the men were African American.
According to Adorno, as the officers' car passed the Hyundai, he thought
the man in the driver's seat tried to hide his face by "sit[ting] all the way back"
in his seat. He testified that the driver seemed nervous and avoided eye contact
with him. Adorno saw the driver briefly shift the Hyundai into reverse, move
"a few inches," and stop again.
3
A police video taken shortly after the defendants were stopped show numerous
vehicles parked on the sides of the local streets in the area.
A-2122-16T4
8
Monticello parked the police vehicle parallel to and slightly ahead of the
Hyundai. He went toward the back of the Hyundai while Adorno went to the
front. According to the officers, because they were dealing with "a possible
threat involving weapons," they drew their weapons while approaching the
Hyundai.
Monticello saw three men sitting in the car. According to Monticello, the
two men in the front seats, later identified as Dunlap and Barley, appeared
nervous and startled by the officers' approach. Meanwhile, the man in the back
seat, later identified as Donte Crumidy, was "very nonchalant." Monticello said
he found the difference among the three men's reactions to be "an additional key
[i]nto what was going on."
The officers ordered the three men to put their hands up. According to
Monticello, Crumidy "just kind of complied," but lit a cigarette while doing so.
Barley, who appeared surprised, turned toward Monticello and put his hands up
as well.
The driver of the Hyundai, Dunlap, did not immediately comply with the
order to put his hands up. Instead, Dunlap gripped the steering wheel tightly
and shouted, "No, no, no, no!" After repeated orders, Dunlap lifted and lowered
his hands in a "raising the roof" motion while continuing to yell. Monticello
A-2122-16T4
9
testified that Dunlap then raised only his left hand, while moving his right hand
toward his waist.
While this was going on, Monticello looked into the Hyundai and saw a
black bag on the floor behind the driver's seat. Monticello testified that because
the initial dispatch had mentioned a book bag, he felt this "kind of started adding
to the totality of the circumstances."
At that point, Monticello saw the emergency lights of other officers
arriving at the scene and decided that he and Adorno were no longer
outnumbered by the men in the car. Monticello testified that because of Dunlap's
noncompliance with the order to raise his hands, he then opened the driver's door
of the Hyundai, grabbed Dunlap, and pulled him out. Barley opened the front
passenger door and began to get out. Adorno took Barley to the sidewalk to
prevent his escape. One of the officers who had just arrived, Gregory Liszczak,
pulled Crumidy from the car. All three men were immediately laid face down
on the ground and handcuffed.
Adorno used a flashlight to inspect the Hyundai's interior through the front
passenger door. He observed a black handgun on the floor of the front passenger
side of the car and informed the other officers. Monticello then called for
A-2122-16T4
10
detectives from the Police Department's major crimes and identification units to
document and preserve any evidence inside the car.
According to Monticello, as the officers prepared to remove the three men
from the scene, he saw Dunlap try to make a motion toward his waist.
Monticello rolled him over onto his back. Adorno then saw a silver handgun
fall from Dunlap's waistband. He kicked it away from Dunlap toward other
officers standing nearby. Liszczak remarked that the gun "came out of his
[Dunlap's] pant[s]," and retrieved it from the ground. Crumidy, who was on the
ground next to Dunlap, stated, "That [gun] didn't come out of mine," and "I
didn't even know what was going on." Meanwhile, Dunlap screamed and cried.
A pat-down search of Barley revealed no weapons or other evidence.
An estimated five minutes and forty-four seconds after Monticello and
Adorno received the initial dispatch, and after defendants were removed from
the Hyundai, a second dispatch was issued. This dispatch relayed the victim's
report that the three home invaders had been wearing masks and dark clothing.
The officers acknowledged that Crumidy was dressed entirely in light-
colored outerwear. Dunlap was wearing a gray hooded zip-up sweatshirt, a
black long-sleeved thermal shirt, dark colored pants, a navy blue knit hat, a black
A-2122-16T4
11
wave cap, and black shoes. Barley was wearing jeans, a dark gray zippered
shirt, and black shoes.
Events at the Police Station
Following their arrest, Barley, Dunlap, and Crumidy were taken to the
police station. Meanwhile, at about 8:00 p.m., Detective Michael Savoth arrived
at the scene of the arrest and took several photographs of the Hyundai's interior
through its windows. Among other things, these photos showed: the black
handgun protruding from under the front passenger seat; a hooded black and
dark gray fleece sweatshirt on the front floor near the gun; and a black book bag
and other clothing items in the backseat area.
Detective Raymond Quick administered Miranda 4 warnings to Dunlap,
who said he wanted to speak with Quick. Dunlap also signed a consent form
allowing officers to search the Hyundai, which had by that time been towed to
the police station.
The Consensual Search of the Hyundai
The Hyundai was searched with Dunlap present. Within the car, officers
found two black ski masks, a black ski hood, a gray sweatshirt, black gloves, a
4
Miranda v. Arizona, 384 U.S. 436 (1966).
A-2122-16T4
12
dark brown winter coat, and a black book bag. The items were confiscated as
evidence.
Detective Savoth testified that at the time of the search, the black handgun
had already been removed from the car. Monticello testified that he wrote in a
report that he removed the gun after the car arrived at the police station, "in
order to not leave a weapon unsecured." Monticello gave Savoth that black gun
and also the silver gun retrieved from the ground near Dunlap.
Additional Facts Adduced at Trial
No usable fingerprints were retrieved from either of the guns found in the
car and at the arrest scene. Police found no fingerprints at the victims'
apartment. They found no footprints inside or outside the home, and no other
forensic evidence. Monticello admitted on cross-examination that there were "a
lot of side streets off Louis Street" and that a person fleeing on foot from the
victims' home could have gone down any of them or into a nearby home.
Police did not ask the tenant or her daughter to identify defendants as the
perpetrators in any show-up, line-up, photographic line-up, or voice-
identification proceeding. They were not asked to identify defendants at trial.
The daughter said that the backpack found in the Hyundai looked like the one
A-2122-16T4
13
carried by one of the home intruders, but admitted that she did not know for sure
that it was the same bag.
The parties stipulated that neither Barley nor Dunlap had applied for or
been issued permits to purchase or carry a handgun or a firearm purchaser
identification card.
Suppression Hearing and Ruling
Defendants moved to suppress the items seized by the police without a
warrant. The court conducted a two-day suppression hearing, at which Officers
Adorno, Monticello and several other officers testified. Upon considering their
testimony, the motion judge concluded in a written decision that the police had
an "objectively reasonable suspicion to perform a valid investigatory stop and
protective search" of defendants and the Hyundai.
Among other things, the motion judge listed the following facts and
circumstances, some of which (as we will discuss in Part II, infra) preceded
defendants' arrests and others which are post-arrest:
(1) a dispatch call advised the officers that three males
entered a residence, with one at least possessing a
weapon, and they fled, (2) less than two minutes after
the dispatch call and only a block away from where the
victim advised that the suspects had fled, one of the
A-2122-16T4
14
investigating officers saw three males slouching[ 5 ]
down in a vehicle in the area towards which the victim
advised the suspects had fled, (3) the driver of [the]
vehicle attempted to conceal his body and face with the
frame of the vehicle and avoided eye contact when
approached by the officers, (4) two of the defendants
appeared to be nervous and startled and the other acted
overly calm and nonchalant, (5) Defendant Barley,
without authorization of the officers[,] attempted to
open the passenger door, (6) when ordered to put his
hands up, defendant Dunlap was non-compliant in that
he kept moving his hands up and down and made a
deliberate movement towards his waist, (7) Defendant
Dunlap made a motion to put the car in reverse, (8)
when being handcuffed, a handgun fell from Defendant
Dunlap's waistband, (9) and a black and silver handgun
was found in plain view in the vehicle.[6]
The judge acknowledged that, under applicable law, defendants'
nervousness or furtive gestures, taken alone, [were] not enough to establish a
sufficient basis for an investigatory stop." Even so, the judge concluded the
record provided "ample" additional facts which, "taken together," formed the
basis for "the officers' particularized suspicion."
Among those facts underscored by the judge were the officers'
"knowledge and experience," and the "location of defendants in close proximity
5
As we will discuss, infra, the officers' testimony was that only the driver
appeared to be slouching.
6
Items (8) and (9) in this listing occurred after defendants were under arrest
and thus cannot be relied upon to justify the initial investigatory stop.
A-2122-16T4
15
to the area where the victim indicated the suspects had fled in less than two
minutes after the 9-1-1 call. The judge ruled that "based on the totality of these
circumstances," there was "substantial credible evidence" which gave rise to "a
reasonable and articulable suspicion that the defendants were engaged in
criminal activity, armed and dangerous."
The judge further concluded that "a subsequent search of the defendants'
persons was valid." The judge found that the officers' actions were justified "for
the protection of the public safety," and "their own safety."
Alternatively, the judge also found the search of the defendants' person
"could also be constitutionally sustained as a search incident to a lawful arrest."
The judge ruled that "defendants were lawfully arrested due to the totality of the
circumstances," and that the officers' search did not exceed the constitutionally
permissible area" for a search incident to an arrest. The judge reasoned that
once the silver handgun fell from Dunlap's waistband "by his own actions," that
particular weapon was "lawfully seized" and it was reasonable for the office rs
thereafter to pat defendants down to remove any other possible weapons.
Additionally, the judge found that after defendants were handcuffed, the
black gun was discovered in the car in plain view. The judge reasoned that
defendants "did not have a legitimate expectation of privacy shielding that
A-2122-16T4
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portion of the interior of the vehicle, which was lawfully viewed from outside"
by Adorno.
Finally, the judge found that Dunlap had voluntarily consented to the full
search of the car, which yielded the bookbag and clothing. The judge found that
a discrepancy between the times stated on the consent form and another police
report was "nothing more than a clerical error," based on Quick's testimony that
the time shown on the form was the time the search occurred, not the time that
Dunlap signed it.
Trial and Verdict
The case against Dunlap and Barley was jointly tried before a jury over
several days in May and June of 2016. 7 The jury found defendants guilty of all
counts charged.
Specifically, both Barley and Dunlap were convicted of conspiracy,
N.J.S.A. 2C:15-1(a)(2) (counts two and three); burglary, N.J.S.A. 2C:18-2
(counts four and five); unlawful possession of a weapon, N.J.S.A. 2C:39 -5(b)
(counts six and seven); and possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (counts nine and ten). Dunlap was convicted of aggravated
7
A different judge presided over the trial.
A-2122-16T4
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assault, N.J.S.A. 2C:12-1(b)(4) (count eight). The Court denied both
defendants' motions for acquittal and Barley's motion for a new trial.
Sentencing
The court sentenced Barley to an extended term of twenty-five years with
an eighty-five percent parole disqualifier for robbery; eight years with an eighty-
five percent parole disqualifier for burglary; and five years with a three -and-a-
half-year parole disqualifier for each of the two counts of unlawful possession
of a weapon. All other counts merged. The burglary and robbery sentences
were to run consecutively to one another, and the two weapons possession
sentences were to run concurrently to each other but consecutively to the others.
The court sentenced Dunlap to eighteen years with an eighty-five percent
parole disqualifier for robbery; nine years with an eighty-five percent parole
disqualifier for burglary; five years with a three-and-a-half-year parole
disqualifier for unlawful possession of a weapon; and eighteen months for
aggravated assault. All other counts merged. As with Barley, the burglary
sentence was made consecutive to the robbery. The sentences for the weapons
possession and assault convictions were likewise to run concurrent to each other
but consecutive to the others.
A-2122-16T4
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Barley's "Certain Persons" Conviction
In August 2017, Barley was tried separately before another judge and a
new jury on the "certain persons not to have weapons charge." Again, the State's
case included the evidence seized after the warrantless police stop and search,
including the black gun. The jury found Barley guilty. The court sentenced
Barley on this offense to ten years with a five-year period of parole ineligibility,
to run consecutively to his sentences from the first trial.
The Present Appeals
Barley appealed his convictions from both the first trial (A-2122-16) and
the second trial (A-4645-17). Dunlap appealed his own conviction (A-2436-
16). Both defendants include in their respective appeals a challenge to the
motion judge's suppression ruling, arguing the police acted unconstitutionally
without a warrant. In addition, defendants raise several other arguments, most
of which they present in common. Specifically, they raise the following points
in their main briefs, which we present in a slightly reorganized and rephrased
manner:
Common to A-2122-16, A-2436-16, and A-4645-17
I. WHETHER THE TRIAL COURT ERRED BY
DENYING THE MOTION TO SUPPRESS
(Barley's point I in both of his appeals, Dunlap's
point I).
A-2122-16T4
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Common to A-2122-16 and A-2436-16
II. WHETHER THE COURT ERRED BY FAILING
TO INSTRUCT ON IDENTIFICATION
(Barley's point II, Dunlap's point III, not raised
below).
III. WHETHER THE COURT ERRED BY FAILING
TO INSTRUCT ON ATTEMPT (Barley's point
II, Dunlap's point II.A, not raised below).
IV. WHETHER THE COURT ERRED BY FAILING
TO INSTRUCT ON VICARIOUS LIABILITY
(Barley's point IV, Dunlap's point II.B, not raised
below).
V. WHETHER THE SENTENCES WERE
EXCESSIVE (Barley's point VI, Dunlap's point
IV).
A-2122-16
VI. WHETHER THE COURT ERRED BY
DENYING BARLEY'S MOTIONS FOR
ACQUITTAL AND A NEW TRIAL (Barley's
point V).
A-4645-17
VII. WHETHER THE PROSECUTOR
COMMITTED MISCONDUCT (Barley's point
II).
VIII. WHETHER THE COURT ERRED BY NOT
ISSUING A LIMITING INSTRUCTION
REGARDING THE GUN RETRIEVED FROM
A-2122-16T4
20
DUNLAP (Barley's point III, not raised below).
IX. WHETHER THE SENTENCE WAS
EXCESSIVE (Barley's point IV).
Additionally, after new counsel for Dunlap was substituted for the
appellate oral argument because of scheduling issues, Dunlap filed with leave
of court a supplemental brief raising one more issue:
THE JURY INSTRUCTIONS AND VERDICT SHEET
IMPROPERLY ALLOWED THE JURY TO RETURN
NON-UNANIMOUS VERDICTS REGARDING THE
IDENTITY OF THE SPECIFIC VICTIM FOR
CERTAIN COUNTS AS WELL AS THE IDENTITY
OF THE CRIME WHICH WAS THE OBJECT OF
THE CONSPIRACY IN COUNT ONE, THEREBY
REQUIRING REVERSAL OF THE CONVICTIONS
FOR CONSPIRACY, ROBBERY, POINTING A
FIREARM, AND POSSESSION FOR AN
UNLAWFUL PURPOSE (not raised below).
By letter, counsel for Barley joined in this added point.
II.
We focus our discussion on what turns out to be the pivotal issue in these
appeals: the constitutionality of the police officers' warrantless stop, arrest, and
seizure of evidence.
In undertaking this review, we must defer to the trial court's factual
findings from the suppression hearing, so long as they are supported by
sufficient credible evidence in the record. State v. Nelson, 237 N.J. 540, 551
A-2122-16T4
21
(2019). By contrast, the trial court's interpretation of the law and the legal
"consequences that flow from the established facts" are reviewed de novo. State
v. Gamble, 218 N.J. 412, 425 (2014).
As we have previewed above, there are essentially two critical phases of
the search-and-seizure analysis in this case: (1) whether the officers performed
a valid warrantless "investigatory stop" of defendants supported by reasonable
suspicion; and (2) whether the officers thereafter conducted a valid warrantless
arrest of defendants, and an incidental search of their persons and the car,
supported by probable cause. These two recognized exceptions to the warrant
requirement are delineated by well-established legal principles and fact-
sensitive illustrative case law.
A.
Under the Fourth Amendment of the United States Constitution, a person
"may not be detained even momentarily without reasonable, objective grounds
for doing so." Florida v. Royer, 460 U.S. 491, 498 (1983). Similar protections
apply under the New Jersey Constitution. See State v. Rosario, 229 N.J. 263,
271 (2017).
If an encounter with police does not involve a "detention" or "seizure," an
individual's constitutional rights have not been infringed. Royer, 460 U.S. at
A-2122-16T4
22
498. For example, "mere police questioning" in a public place "does not
constitute a seizure" requiring possible suspicion or probable cause under the
Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434 (1991) (citing Terry
v. Ohio, 392 U.S. 1, 19 (1968)).
Some circumstances that may indicate a seizure are "the threatening
presence of several officers, the display of a weapon . . . some physical touching
of the person . . . 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 (1980). New Jersey courts have also held that
an objectively reasonable person would not feel free to leave an encounter when
a police officer parks a patrol vehicle near his or her car in a manner that
prevents the car from exiting. As the Court discussed in Rosario, 229 N.J. at
273:
A person sitting in a lawfully parked car outside her
home who suddenly finds herself blocked in by a patrol
car that shines a flood light into the vehicle, only to
have the officer exit his marked car and approach the
driver's side of the vehicle, would not reasonably feel
free to leave. That conclusion is consistent with
ordinary notions of how a reasonable person responds
to a demonstration of police authority. See
Rodriguez, [] 172 N.J. 117, 129 [(2002)] (“[A]s a
practical matter, citizens almost never feel free to end
an encounter initiated by the police.”). Rather, such
police activity reasonably would, and should, prompt a
A-2122-16T4
23
person to think that she must stay put and submit to
whatever interaction with the police officer was about
to come.
1.
A Seizure Occurred
It is readily apparent in the present case that a "seizure" or "stop" occurred
when the officers encountered defendants. They parked their police vehicle in
a spot that would impede defendants from driving forward. In addition, there
was "the threatening presence of several officers" and "the display of weapons."
Mendenhall, 446 U.S. at 554. Officers Monticello and Adorno seized
defendants when they drew their weapons, approached the Hyundai, and ordered
the three men to put their hands up. Monticello testified that "initially . . . as
soon as [the officers] made contact with" defendants, "they were not free to
leave" and "were detained."
The State does not contend that the officers approached the Hyundai in a
less intrusive manner that would comprise a mere "field inquiry" to ascertain
who defendants were and why they were there. 8 In fact, the situation here in
8
See State v. Pineiro, 181 N.J. 13, 20 (2004) (citing State v. Nishina, 175 N.J.
502, 510 (2003)) (defining a field inquiry as "the least intrusive encounter . . .
when a police officer approaches a person and asks if [he or she] is willing to
answer some questions).
A-2122-16T4
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responding to a fresh report of an attempted armed robbery nearby made it too
dangerous to undertake such a cordial inquiry. The State maintains, and we
agree, that it was sensible under the circumstances for the officers to approach
the Hyundai with their guns drawn for their safety.
Given that a seizure or investigatory stop was occurring when the officers
first approached the car, the critical analytic question then becomes whether that
warrantless police action was supported by reasonable suspicion.
The Reasonable Suspicion Requirement
The United States Supreme Court has held that "certain seizures are
justifiable . . . if there is articulable suspicion that a person has committed or is
about to commit a crime." Royer, 460 U.S. at 498. New Jersey courts have
clarified that an "investigatory detention" is "permissible '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.'" State v.
Chisum, 236 N.J. 530, 545-46 (2019) (quoting Pineiro, 181 N.J. at 20). Such a
stop "may not be based on arbitrary police practices, the officer's subjective
good faith, or a mere hunch." State v. Coles, 218 N.J. 322, 343 (2014). If there
was no reasonable suspicion, evidence discovered during a search conducted
during the detention must be excluded. Chisum, 236 N.J. at 546. The State
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bears the burden to prove that a warrantless stop was valid. State v. Atwood,
232 N.J. 433, 444 (2018).
To determine whether reasonable suspicion existed, a court must consider
the totality of the circumstances, viewing the "whole picture" rather than taking
each fact in isolation. Nelson, 237 N.J. at 554-55. This analysis may also
consider police officers' "background and training," including their ability to
"make inferences from and deductions about the cumulative information
available to them that might well elude an untrained person." Id. at 555 (quoting
United States v. Arvizu, 534 U.S. 266, 273 (2002)). Additionally, "police may
rely on behavior that is consistent with innocence as well as guilt in finding
reasonable and articulable suspicion to conduct an investigatory stop." Pineiro,
181 N.J. at 25.
Generic Descriptions on Police Dispatches
As we have noted, the stop in this case was prompted by a police dispatch.
The dispatch merely identified the intruders as three males, one of whom was
taller than the others, wearing masks and dark clothing. Our courts have held
that an individual's similarity to a very general description given in a dispatch
or warrant does not by itself justify an investigative detention, because it does
not give rise to a sufficiently particularized suspicion that the person is or has
A-2122-16T4
26
engaged in criminal activity. See State v. Shaw, 213 N.J. 398, 401-11 (2012)
(affirming reversal of trial court's denial of motion to suppress evidence seized
during stop, where defendant's only similarity to fugitive police sought was that
he was "a black male"); State v. Caldwell, 158 N.J. 452 (1999) (reversing denial
of suppression where only information officer had was that suspect was a black
male at a certain address).
In a case having some similarity to the present case, State v. Stampone,
341 N.J. Super. 247, 249-52 (App. Div. 2001), an officer looking for a burglar
had no description of the perpetrator, but approached the defendant as he sat in
his parked car near the crime scene, demanded to see identification, argued with
him when he refused to comply, then arrested him. We stated that "[a] car
parked on a residential street at 5:00 p.m., occupied by a person with no unusual
personal characteristics, is not suspicious." Id. at 252.
Furtive Movement and Nervousness
The officers' suppression hearing testimony in the present case
highlighted allegedly furtive movements by the Hyundai driver and perceived
nervousness of the driver and the front-seat passenger. As the motion judge
properly noted, such observations cannot be dispositive or given undue weight.
"'Furtive movements by [a] defendant," by themselves, "cannot provide
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27
reasonable and articulable suspicion to support a detention in the first instance."
Rosario, 229 N.J. at 277; State v. Dunbar, 434 N.J. Super. 522, 527 (App. Div.
2014). "Nervousness and excited movements are common responses to
unanticipated encounters with police officers on the road, and '[m]ere furtive
gestures of an occupant of an automobile do not give rise to an articulable
suspicion suggesting criminal activity." Rosario, 229 N.J. at 277 (quoting State
v. Lund, 119 N.J. 35, 47 (1990)).
An individual's "failure to make eye contact with the police" also does not
transform otherwise innocuous actions, such as sitting in a parked car, into
suspicious ones. Stampone, 341 N.J. Super. at 252. See also Rosario, 229 N.J.
at 267-77 (holding an officer's detention of the defendant unjustified where she
had been sitting in her parked car, glanced nervously at him as he approached,
and "scuffled around" with something in the passenger seat).
In State v. Tucker, 136 N.J. 158, 169-70 (1994), the Court found that even
a person's flight upon seeing police does not by itself generate reasonable
suspicion, absent other evidence of criminal activity such as possession of
suspicious package, the furtive exchange of money, a report of nearby crimes,
or a description of a crime suspect matched by the fleeing individual.
A-2122-16T4
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By contrast, the Supreme Court found an investigatory detention proper
where a defendant met a more detailed description and also appeared nervous as
police approached. State v. Privott, 203 N.J. 16, 28-29 (2010). In Privott, the
Court found that an anonymous tip that a tall, thin, dark-skinned male wearing
a black jacket and a black and red cap was standing on a certain corner and had
a handgun would have been insufficient on its own to generate a particularized
suspicion that the defendant, who matched most of that description, was engaged
in criminal activity. However, because the defendant was known to the
investigating officer from prior arrests, "appeared nervous," and walked away
from the officer while putting a hand near his waistband, an investigatory stop
was proper. Ibid.9
Proximity of Place and Time
Our case law has also recognized that "the proximity of the stop in time
and place to the crime in question" can be "critical to the resolution of the
existence of a reasonable and articulable suspicion." State v. Gavazzi, 332 N.J.
Super. 348, 357 (App. Div. 2000). In State v. Reynolds, 124 N.J. 559, 569
9
See also State v. Ruiz, 286 N.J. Super. 155, 163 (App. Div. 1995) (in which
suppression was properly denied where the defendant was known to officer from
prior arrests, was walking in the center of the road late at night in an area known
for drug trafficking, had been reported in an anonymous tip, and immediately
ran away upon seeing officer).
A-2122-16T4
29
(1991), the Court found that the facts that the defendant matched a descripti on
by the assault victim and was located by an officer in a field near the crime scene
shortly thereafter were sufficient to generate a reasonable suspicion. Similarly,
in State v. Todd, 355 N.J. Super. 132, 138 (App. Div. 2002), the defendant
matched the height, weight, and clothing of a description given of a cat burglar;
was spotted in the vicinity of the burglaries minutes after they were reported;
was the only person walking on that street at 3:30 a.m.; and was "sweating and
appeared nervous." We held in Todd that police had the necessary level of
suspicion to conduct an investigative stop to question the defendant. Ibid.10
2.
Analysis
Applying these principles, we recognize that both sides present strong
10
See also Gavazzi, 332 N.J. Super. at 360-62 (investigatory stop of defendant's
car proper where the defendant matched height and clothes of robber, officers
saw car traveling away from scene six minutes after crime, and car was only
vehicle on rural road); State v. Wanczyk, 201 N.J. Super. 258, 261-64 (App.
Div. 1985) (stop of vehicle proper where the defendant was seen leaving area of
arson at nature reserve and getting into that car); State v. Anderson, 198 N.J.
Super. 340, 347 (App. Div. 1985) (stop of vehicle in which two black males
were visible found proper where car was only vehicle on road at 1:30 a.m. in
area of robbery shortly after crime reported and dispatch reported three armed
black males).
A-2122-16T4
30
reasons for concluding that reasonable suspicion was or was not present here to
justify an investigatory stop.
On the State's side of the ledger, the strongest point is proximity to the
time and place of the reported crime. Temporally, the police encountered
defendants' vehicle only about two minutes after the 9-1-1 caller reported the
intrusion. In fact, the 9-1-1 caller was still on the phone with the dispatcher
when defendants were apprehended, and the dispatcher asked her if she could
identify them if they were brought to her. The physical proximity of the police
encounter was also very close: less than a block away and under the length of a
football field. In addition, the State emphasizes the numerical match of three
intruders and three men in the Hyundai. Further, the State has in it s favor the
observed slouch of Dunlap as the police approached, the perceived nervousness
of both defendants, the brief attempt to put the car in reverse, and the observation
of a backpack in the car.
Defendants, meanwhile, have several important factors in their own favor.
The dispatch description of the intruders was highly generic; we can take
judicial notice that it is not uncommon to come upon a trio of adult males in
New Brunswick in a parked car possibly wearing dark clothing. The match of
three men is not especially significant since, as defendants argue, the three
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31
perpetrators left the apartment on foot and could have dispersed individually, or
with one peeling off from the other two. Or one or more other people, such a
separate getaway driver, could have joined the group.
This case is factually different from some others where proximity to a
crime scene was held to justify an investigative detention. In Reynolds, 124 N.J.
at 569, Todd, 355 N.J. Super. at 138, Gavazzi, 332 N.J. Super. at 360-62, and
Anderson, 198 N.J. Super. at 347, the descriptions of the perpetrators that the
defendants matched were more detailed than simply "males," as here. In those
cases, and Wanczyk, 201 N.J. Super. at 261-64, the defendants were the only
people seen walking or driving in the area near the crime scene, while here, there
was "light" vehicle traffic nearby. Reynolds, Gavazzi, and Wanczyk involved
rural or park land areas where the defendants' presence was notable in itself,
while here, the crime and arrest took place in an urban area where Monticello
admitted there were "a lot of side streets" and homes where the perpetrators
could have fled.
This case also has some differences from other cases where nervous
behavior upon noticing a police presence was held to support reasonable
suspicion. In Privott, 203 N.J. at 28-29, the defendant matched a much more
detailed description, including height, weight, and clothing, and his nervous
A-2122-16T4
32
behavior including reaching for his waistband while walking away from the
investigating officer. In Ruiz, 286 N.J. Super. at 163, the defendant was not
only nervous, he ran away, and his behavior in walking in the middle of a road
very late at night was unusual. Here, the scenario was more similar to Rosario,
229 N.J. at 267-77, and Stampone, 341 N.J. Super. at 252, where the facts that
the defendants were sitting in parked cars and avoided eye contact with officers
or made "furtive" movements were deemed insufficient to justify a search. On
the other hand, unlike the latter two cases, here there was a report of a robbery
occurring shortly before the officers approached defendants.
Considering the "totality of circumstances," we discern strong factual
points both in favor and against a finding of objectively reasonable suspicion to
justify an investigatory stop of defendants. We need not resolve this very close
question because, as we will now explain, we conclude the officers lacked
probable cause to arrest defendants at the critical point in time when they did
so.
B.
As a threshold aspect of the arrest analysis, we reject the State's contention
that defendants were not yet arrested until after Dunlap, already handcuffed on
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the ground, rolled over and the silver gun was exposed. The arrest occurred
before that point in the sequence of events.
The touchstone of an arrest is whether a reasonable person in the situation
would feel free to end the encounter with police. State v. Shaw, 213 N.J. 398,
410 (2012). If police officers' conduct is more than what is "minimally
intrusive" than required to investigate, it can be regarded as an arrest. State v.
Dickey, 152 N.J. 468, 478 (1998).
One indication that an arrest has occurred is when law enforcement has
placed an individual in handcuffs. Id. at 479. See also State v. Shaw, 237 N.J.
588, 613 (2019). Here, the police almost immediately placed defendants in
handcuffs once they had forcibly pulled them out of the car. Defendants were
then forced to lie face-down, on the cold ground in handcuffs, on separate sides
of the car, with police officers hovering over them. It is incredible to say that
defendants by that point were still free to leave. Their freedom of movement
was clearly and forcibly restricted. That restraint went well beyond the level
reasonably necessary to conduct a mere investigatory stop.
The level of police restraint quickly escalated here to the degree of an
arrest. The circumstances have some parallels to those in DelaCruz v. Borough
of Hillsdale, 365 N.J. Super. 127, 146 (App. Div. 2004), aff'd in part, rev'd in
A-2122-16T4
34
part, 183 N.J. 149 (2005), in which an investigatory stop escalated into a "de
facto arrest" carried out in a "confrontational manner." The two police officers
in DelaCruz were convinced they had come upon a wanted burglar, removed a
perceived suspect from a vehicle at gunpoint, physically forced him facedown
to the ground, and kept him handcuffed for over ten minutes. Ibid. We held this
rough manner of interacting with the individual was "factually unwarranted and
legally untenable, under the circumstances." Ibid.In making these observations, we do not suggest that police officers
cannot use reasonable force to restrain an arrestee. Of course they can. Our
point is that when the use of physical restraint intensifies to the degree shown
here, there can be little doubt that the individual has been arrested, whether or
not a formal proclamation of an arrest has yet been made.
The key question then becomes whether the police had sufficient probable
cause to arrest defendants at the point in time when they were pulled out of the
car, handcuffed, and forced to lie face down on the ground. We conclude that
such probable cause was not yet present, and the motion judge erred in finding
otherwise.
At the time defendants were arrested, neither the black gun nor the silver
gun had been observed. No witness had seen them get into the car after the
A-2122-16T4
35
home invasion. As we have noted, the victim's description of "three males in
dark clothing" was quite generic. Likewise, backpacks are a common item. The
Hyundai, although pointed in a direction away from the victim's apartment with
the engine running, was lawfully parked at the side of the road. Unlike in Coles,
218 N.J. at 329, defendants had not given suspicious answers to police questions.
They apparently weren't asked any questions before they were removed from the
car and handcuffed.
We acknowledge that Dunlap did not immediately comply with the
officers' command to raise both of his arms, and that he was seen reaching in a
direction towards his waistband. We also acknowledge Officer Monticello saw
a black backpack as he approached the vehicle. We are aware that the two
officers were initially outnumbered three-to-two, although backup officers had
arrived by the time defendants were pulled out of the car and placed in
handcuffs. These are points helpful to the State's position. Nevertheless, on
balance, we are not persuaded that the information known to the officers—even
if it hypothetically satisfied the lesser standard of reasonable suspicion—met the
more rigorous standard of probable cause. There was not yet in the chronology
a sufficiently "well-grounded" basis to believe that defendants had committed a
crime. Pineiro, 181 N.J. at 21.
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To be sure, we appreciate the public safety aspects of these issues, and the
practical challenges of police officers making on-the-spot assessments of
unfolding and potentially dangerous situations when out on patrol. We have
already stated, as defendants concede, that it was appropriate for the officers to
approach the car with their guns drawn. But the officers went over the line
beyond constitutional safeguards by escalating the situation to an arrest, without
knowing more inculpatory facts or observing more troubling behavior. If we
were to condone the escalation that occurred here, that conceivably would invite
law enforcement to "rush to judgment" too swiftly in situations involving other
civilians who happen to be sitting in a parked car near the recent scene of a
crime.
C.
In sum, we are constrained to conclude that the warrantless arrest of
defendants in this case was unconstitutional. Because of that, the fruits of the
searches that ensued must be suppressed. State v. Herrerra, 211 N.J. 308, 330
(2012). Consequently, defendants' convictions based upon the illegally-seized
evidence must be reversed, and their cases remanded for further proceedings.
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III.
We briefly address defendants' remaining arguments for sake of
completeness. Only two of their arguments have enough merit to warrant
discussion: (1) the absence of a jury charge on identification; and (2) the
imposition of multiple "stacked" consecutive sentences upon each defendant.
First, we are persuaded that the trial court -- although it was not requested
by defendants' trial counsel to do so -- should have issued the relevant portion
of the model jury instruction on identification. See Model Jury Charge
(Criminal), "Identification: No In-Or-Out-Of-Court Identification" (approved
Oct. 2015). This special instruction, crafted after our Supreme Court's seminal
opinion on identification issues in State v. Henderson, 208 N.J. 208 (2011),
appropriately advises jurors in circumstantial evidence cases such as this one
that the identity of a criminal offender is a necessary element that the
prosecution must prove beyond a reasonable doubt. See also State v. Cotto, 182
N.J. 316, 326 (2005). The utility of this instruction is not eliminated by the
absence of any positive identifications by the apartment-dwelling victims. In
fact, the absence of an eyewitness identification is the very reason this jury
instruction exists.
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That said, we are not persuaded the omission of the instruction is plain
error that compels reversal in and of itself. R. 2:10-2. The jury was more
generally advised of the State's burden to prove all elements of the charged
offenses beyond a reasonable doubt. To be sure, it would have been preferable
for the identification charge to be given, but the error was not "plain."
Second, the trial court at sentencing did not adequately explain why the
consecutive sentences for the burglary, robbery, and weapons offenses were
justified, beyond the general principle that offenders should have "no free
crimes." State v. Yarbough, 100 N.J. 627, 643 (1985). The trial court did not
provide a sufficient analysis of the Yarbough factors to support the consecutive
sentences. The State does not provide a convincing justification for the
omission. Had we not set aside defendants' convictions, we would have
remanded for resentencing to cure this omission.
All other arguments raised by defendants lack sufficient merit to warrant
discussion. R. 2:11-3(e)(2). In particular, we discern no other shortcomings in
the jury charge. Although the verdict sheet could have been improved to guard
against non-unanimity, we do not regard it as critically defective. We are
unpersuaded that any other errors occurred during the trial that were clearly
A-2122-16T4
39
capable of producing an unjust result, or that the jury's guilty verdict lacked
sufficient support in the evidence the trial court admitted.
Reversed and remanded for proceedings consistent with this opinion. We
do not comment on whether the State might possess any non-suppressed
evidence that could support a second trial.
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