STATE OF NEW JERSEY VS. TYRESE BUTLER (16-04-0305, UNION 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NOT FOR PUBLICATION WITHOUT THE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-2122-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYRESE BUTLER, a/k/a
JACQUAN BUTLER, JACQUAN
R. BUTLER, JAQUAN BUTLER,
TYRICE BUTLER, TYRICE L.
BUTLER, TYRICE R. BUTLER,
TYRECE BUTLER, and TYRESE
BUTLER,
Defendant-Appellant.
_____________________________
Submitted December 9, 2019 – Decided September 16, 2020
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 16-04-0305.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alicia J. Hubbard, Assistant Deputy Public
Defender, of counsel and on the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Timothy M. Ortolani, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Because defendant is short and the attempted burglar police sought was
said to be tall, defendant contends he was seized unlawfully, and the drugs he
possessed should have been suppressed. We are unconvinced. The totality of
circumstances determines if police have a reasonable and articulable suspicion
to conduct an investigative detention. A mismatched descriptor is just one
circumstance. Its significance depends on how the remaining, matching
descriptors distinguish the perpetrator from the general population and how the
mismatch tends to exclude the defendant as a suspect. A court must also
consider the probability the victim made a mistake, or the suspect altered his
appearance. And, the court must weigh circumstances, apart from the
description, tending to create reasonable and articulable suspicion. Viewing the
totality of such circumstances in this case, we conclude the police lawfully
seized defendant.
I.
One January morning in Elizabeth, a woman told a 911 dispatcher that a
tall black man wearing dark pants, a puffy jacket, and a hood, was trying to gain
A-2122-17T3
2
entry to her house. Informed of the report, two uniformed police officers in a
marked patrol car spotted defendant a short time later walking on the otherwise
empty street opposite the victim's house. A black male, defendant was wearing
dark pants, a black puffy jacket, and a hood. But, he is not tall.
Before the officers exited their vehicle, defendant immediately ran off
while putting his hands in his pockets. Police then chased, and one officer
ordered him to stop and get on the ground. Defendant ignored the command and
as he ran he twice discarded what turned out to be packages of drugs. The
officers soon caught defendant. As he resisted, defendant tried again to empty
his pockets. Once police subdued defendant, they found more drugs under his
thigh.
The victim told police that the man who tried to enter her house was taller
than defendant. Police did not charge defendant with the attempted burglary,
but they did charge him with multiple drug-related crimes and resisting arrest.
After indictment, defendant moved to suppress the drugs the police seized.
At the suppression hearing, an arresting officer — the sole witness — recounted
the facts we have described. He said he pursued defendant because "he matched
the description" of the attempted burglar. The officer acknowledged defendant
was not tall, as he stood in the courtroom. The officer recalled that defendant
A-2122-17T3
3
was just ten feet away when the officers started to chase him, but "in that instant"
when defendant took off, the officer said he could not discern defendant's height.
The officer did not expressly say that defendant began to run before police
ordered him to stop. He stated that once police noticed defendant, "immediately
we stopped and he began to run." Asked on cross-examination if he ordered
defendant to stop "as soon as [he] saw" defendant, the officer did not respond
directly, stating, "We got out of the car and he started running. . . . Well, he
actually started running before we got out of the car."
The officer could not say how long it took to arrive on the victim's block.
Pressed, he said it was possible that five minutes elapsed. Notably, the victim
was still on the phone with the dispatcher when the police arrived .
Defendant argued the stop was unreasonable because he did not match the
attempted burglar's reported height.
The court denied the motion. The court acknowledged that the dispatcher
reported the suspect was tall, and defendant was not. Nonetheless, the court
found that the officers had reasonable suspicion to detain defendant. The
circumstances supporting that finding were: he "match[ed]" the victim's
description of the suspect; he was just "a few homes away" from the victim's
house; no one else was on the street; and defendant started to run after he noticed
A-2122-17T3
4
the police vehicle. 1 The judge found the seizure of the drugs was not unlawful
because the drugs were abandoned while defendant ran, and were lawfully
seized incident to a lawful arrest for drug possession and resisting.
Defendant then pleaded guilty to possessing drugs with the intent to
distribute them in a school zone, N.J.S.A. 2C:35-7. Consistent with his plea
agreement, the court sentenced him to a five-year term, with thirty months of
parole ineligibility.
On appeal, defendant presents the following point for our consideration:
EVEN THOUGH THEY WERE RESPONDING TO
AN EARLIER CALL OF AN ATTEMPTED BREAK-
IN BY A TALL BLACK MAN, WHEN POLICE SAW
MR. BUTLER, A SHORT BLACK MAN, WALKING
DOWN THE OTHER SIDE OF THE STREET, THEY
ORDERED HIM TO STOP THEN CHASED HIM
THROUGH THE RESIDENTIAL NEIGHBORHOOD.
THAT MR. BUTLER WAS WEARING TYPICAL
WINTER CLOTHES ON A WINTER DAY AND THE
1
The judge did not clearly decide whether defendant ran before the officer
commanded him to stop. Recalling the officer's testimony, the judge wrote, "He
testified that police yelled for the person to stop and put his hands up. He
testified that the suspect began to run away and that he gave chase." Addressing
defendant's argument, the judge also wrote, "The officers tried to initiate a stop,
but the individual allegedly fled." Although these three sentences suggest a
finding that defendant ran after police commanded him to stop, the judge also
suggested a finding that defendant ran before the command to stop, writing that
"[a]fter noticing the police vehicle, the suspect immediately started to run," and
"when the individual saw the officers, and before the officers were able to detain
him, he immediately fled on foot."
A-2122-17T3
5
BREAK-IN SUSPECT WAS WEARING GENERIC
WINTER CLOTHES AND WAS ALSO A BLACK
MAN, DID NOT PROVIDE POLICE WITH
REASONABLE SUSPICION THAT HE WAS
INVOLVED IN ANY CRIME. THEREFORE, THE
FRUITS OF THE ENCOUNTER MUST BE
SUPPRESSED. U.S. CONST. AMENDS. IV AND
XIV; N.J. CONST. ART. I, PAR. 7.
Essentially, defendant contends the difference between his height and the
attempted burglar's was more significant that his match of other descriptors. 2
Defendant also highlights that the police did not recognize him from prior
encounters, nor did they observe him engage in unlawful or suspicious behavior.
II.
The following observations are not controversial. Police seized defendant
when they gave chase, commanding him to stop and get on the ground. See
State v. Tucker, 136 N.J. 158, 166 (1994) (although the record did not disclose
if police commanded defendant to stop running, foot-chase of defendant
constituted seizure, since "a reasonable person [would] believe that the police
wanted to capture him and not just . . . speak with him"). If the stop of defendant
was lawful, so was the seizure of the drugs defendant discarded as he ran. See
2
Defendant argues on appeal that he is five-feet five-inches tall. But, he
introduced no competent evidence of his precise height at the suppression
hearing.
A-2122-17T3
6
State v. Ramos, 282 N.J. Super. 19, 22-23 (App. Div. 1995) (denying
suppression of drugs discarded during lawful investigative stop); State v.
Farinich, 179 N.J. Super. 1, 6-7 (App. Div. 1981) (holding lawfully stopped
suspect abandoned suitcase when he dropped it and fled), aff'd o.b., 89 N.J. 378
(1982); cf. Tucker, 136 N.J. at 172 (suppressing drugs discarded during unlawful
seizure of fleeing defendant). And, as defendant's refusal to obey while
discarding various items created probable cause to arrest, see State v. Williams,
192 N.J. 1, 11 (2007) (stating a person commits the crime of obstruction by
fleeing from an investigatory stop), the police were authorized to seize the drugs
under defendant's thigh, see State v. Pena-Flores, 198 N.J. 6, 19 (2009) (stating
that "[u]nder the search incident to arrest exception, the legal seizure of the
arrestee automatically justifies the warrantless search of his person and the area
within his immediate grasp"), overruled on other grounds, State v. Witt, 223 N.J.
409, 450 (2015).
The question is whether the stop was authorized. "[I]f police have a
reasonable suspicion, grounded in specific and articulable facts, that a person
they encounter was involved in or is wanted in connection with a completed
felony, then a Terry3 stop may be made to investigate that suspicion." United
3
Terry v. Ohio, 392 U.S. 1 (1968).
A-2122-17T3
7
States v. Hensley, 469 U.S. 221, 229 (1985). The police may rely on their
training and experience, and "rational inferences" from the facts before them.
See Terry, 392 U.S. at 21; State v. Arthur, 149 N.J. 1, 8 (1997). "Reasonable
suspicion is less than proof . . . by a preponderance of evidence, and less
demanding than that for probable cause, but must be something greater than an
inchoate or unparticularized suspicion or hunch." State v. Barrow, 408 N.J.
Super. 509, 517 (App. Div. 2009) (internal quotation marks omitted) (citing
United States v. Sokolow, 490 U.S. 1, 7 (1989)). "[T]he bar is low, [but] it is a
bar nonetheless." State v. Atwood, 232 N.J. 433, 448 (2018).
In determining whether reasonable and articulable suspicion supports an
investigative detention, a court must consider the "totality of the circumstances."
State v. Pineiro, 181 N.J. 13, 22 (2004). The "totality of the circumstances" may
justify an investigative detention although each fact, standing alone, would not .
Id. at 25. Also, an officer may rely on facts "'consistent with guilt,'" even if
"'purely innocent connotations can be ascribed'" to them. State v. Citarella, 154
N.J. 272, 279-80 (1998) (quoting State v. Arthur, 149 N.J. 1, 11 (1997)).
An officer may generally assume a crime victim's veracity and reliability
in describing a suspect. See State v. Amelio, 197 N.J. 207, 212-13 (2008).
When a crime victim gives a reasonably detailed description of a criminal, police
A-2122-17T3
8
will usually have a reasonable and articulable suspicion to stop a person who
matches the description. See, e.g. State ex rel. H.B., 75 N.J. 243, 248 (1977)
(sustaining Terry frisk of person who matched anonymous tipster's "precisely
accurate" description of "black individual wearing a black hat, black leather coat
and checkered pants" in a particular restaurant); see also United States v. Brown,
448 F.3d 239, 247 (3d Cir. 2006) (stating "[t]he fact that 'every detail provided
[in a description] matched the details observed by the officers' can contribute to
a finding of reasonable suspicion" (quoting United States v. Nelson, 284 F.3d
472, 483 (3d Cir. 2002))).
However, police may not rely solely on a "generic description" that does
little to distinguish a suspect from the general population. See State v. Shaw,
213 N.J. 398, 411, 421 (2012) (stating "[a] random stop based on nothing more
than a non-particularized racial description of the person sought is especially
subject to abuse"). See also Brown, 448 F.3d at 247-48; In re T.L.L., 729 A.2d
334, 340 (D.C. 1999) (stating that description of two black teenagers, one with
a dark complexion and one with a medium complexion "could have fit many if
not most young black men" and was insufficient to justify investigative stop);
United States v. Turner, 699 A.2d 1125, 1128-29 (D.C. 1997) (stating that "a
A-2122-17T3
9
description applicable to large numbers of people will not suffice to justify the
seizure of an individual").
In this case, the clothing the victim described was not especially
distinctive for January, but the combination of a puffy jacket, as opposed to a
slim one, plus a hoody, and dark pants, did narrow the universe of possible
suspects. Identifying the attempted burglar's race and height further limited
possible suspects, although Elizabeth has a significant black population, and
"tall" is subject to interpretation.4 Yet, we need not decide whether the
description in this case adequately distinguished the perpetrator from the general
population, and provided reasonable and articulable suspicion to detain someone
who matched the description. Defendant did not perfectly match the victim's
description.
"The fact that a part of the description does not fit is . . . obviously a
negative factor." Brown v. United States, 590 A.2d 1008, 1018 (D.C. 1991).
For example, the Third Circuit held police lacked reasonable suspicion to stop
two bearded black men, twenty-eight and thirty-one years old, when the suspects
4
Almost twenty percent of Elizabeth's population is "Black or African
American alone." See U.S. Census Bureau, Quick Facts: Elizabeth, New Jersey,
https://www.census.gov/quickfacts/elizabethcitynewjersey. The record does
not say if the racial makeup of the victim's neighborhood varied from that, one
way or the other.
A-2122-17T3
10
were said to be between fifteen and twenty, and the description did not mention
facial hair. Brown, 448 F.3d at 248. Even if a partial match justifies a stop, an
officer may be obliged to terminate the stop once a mismatch appears. See
United States v. Bey, 911 F.3d 139, 146 (3d Cir. 2018) (holding it was
reasonable for officers to approach defendant from the back as his clothes
matched suspect's description, but they should have ceased the encounter once
they turned him around and realized his facial features and age were not a
match).
But, "[n]ot every discrepancy is fatal." Brown, 590 A.2d at 1018. "[A]n
imperfect match between a suspect and a description does not necessarily make
an officer's suspicion unreasonable." Torry v. City of Chicago, 932 F.3d 579,
588 (7th Cir. 2019). See also State v. Kyles, 607 A.2d 355, 368 (Conn. 1992)
(stating that "[t]he police . . . are not required to confirm every description of
the perpetrator that is broadcast over the radio"). As Professor LaFave has
observed, officers "must be allowed" to consider that the victim or witness got
a descriptive factor wrong, or that "a change of circumstances or efforts at
concealment" rendered the factor inapplicable. 4 LaFave, Search & Seizure §
9.5(h) (5th ed. 2019). "What must be taken into account is the strength of those
points of comparison which do match up and whether the nature of the
A-2122-17T3
11
descriptive factors which do not match is such that an error as to them is not
improbable." 4 LaFave, Search & Seizure § 9.5(h) (5th ed. 2019).
While a partial match may still arouse suspicion, a particular mismatch
may tend to exclude a person as a suspect more than the matching factors tend
to include him. One may imagine a suspect described as white, in blue jeans
and a hoody, medium height and build, with a large scar on his forehead. The
scar is the most distinctive characteristic. An officer would obviously have a
weaker basis to stop someone without the scar, than someone without the hoody.
Indeed, if the victim had not observed the perpetrator's face, the scar-less person
would be subject to greater suspicion than if the victim had.
Considering the totality of circumstances, police must also be able to
consider factors apart from the imperfectly matched description that tend to
support or undermine reasonable suspicion. In State v. Privott, 203 N.J. 16, 21
(2010), police stopped a man who imperfectly matched a caller's description of
a man with a gun. Like the person described, he was tall, thin, dark-skinned and
wore a black and red cap. But, his jacket was red, not black as the caller
described. Notwithstanding that mismatched descriptor, the Court held the stop
was reasonable. The Court noted the defendant "partially matched the
description given"; the officer knew the defendant had been arrested before and
A-2122-17T3
12
was involved in gangs; and, as the officer approached, the defendant appeared
nervous, and began to walk away while moving one hand toward his waistband,
where weapons are commonly concealed. Id. at 28-29.
In this case, we must consider the power of remaining, matching
descriptors to distinguish defendant from the general population; the power of
the height discrepancy to exclude defendant as a suspect; the possibility the
victim made a mistake about the mismatched descriptor; and circumstances apart
from the description tending to create reasonable and articulable suspicion. 5
Defendant's matching clothing, race and sex were significant, if not
sufficient factors, to justify the investigative detention. As we have noted,
although each item of clothing was not especially distinctive, in combination
they served to distinguish defendant from others. The arresting officer testified
that he did not have a chance to determine if defendant was tall, before he started
running. So, from the officer's perspective, height was a non-factor, as opposed
to an excluding factor. The trial judge made no finding whether the officer was
credible on that point. But see United States v. Watson, 787 F.3d 101, 105 (2d
Cir. 2015) ("A material difference in . . . height is not something that takes a
5
Since height is not easily hidden and changes very slowly, we do not consider
the possibility of concealment or a change of circumstances.
A-2122-17T3
13
long time to process"). Yet, even assuming the officer noticed upon his
approach, or while in pursuit, that defendant was not tall, the victim may have
been mistaken in her description. A person may view another's height relative
to one's own. An assessment of height may be affected by one's angle or sight.
In any event, the general description that the perpetrator was tall was not so
distinctive that defendant's less-than-tall stature was enough to quell reasonable
suspicion.
The totality of other circumstances engendered reasonable and articulable
suspicion that defendant was the attempted burglar. Temporal and spatial
proximity both supported reasonable suspicion. See United States v. Goodrich,
450 F.3d 552, 562 (3d Cir. 2006) (holding that "geographical and temporal
proximity . . . to the scene of the reported theft" supported reasonable suspicion);
State v. Reynolds, 124 N.J. 559, 569 (1991) (affirming finding that "defendant's
proximity to the crime in both time and space and that his similarity to the
general description of the suspect were sufficient to generate a reasonable
suspicion"). Defendant was found across the street from the victim's home. He
was the only person on the street in the middle of the morning. It may have
taken the officer five minutes to arrive. He said that was possible. But, the
victim was still on the phone with the dispatcher, indicating not much time had
A-2122-17T3
14
passed. There was also no evidence that the attempted burglar was on the run,
which would have made it unlikely he would still be so close to the victim's
home after five minutes. The partial match, along with the temporal and spatial
proximity, established reasonable and articulable suspicion to conduct an
investigatory stop.
Even if that were not enough, defendant also fled from the officers. If he
did so before the officers commanded him to stop, then such flight provided an
additional element, as part of the totality of circumstances, justifying the initial
command to stop. We recognize that "flight alone does not create reasonable
suspicion for a stop." State v. Dangerfield, 171 N.J. 446, 457 (2002). However,
it may support reasonable and articulable suspicion "in combination with other
circumstances." Pineiro, 181 N.J. at 26. Applying that principle, we held in
State v. Ruiz, 286 N.J. Super. 155, 163 (App. Div. 1995), that police had
reasonable and articulable suspicion to stop suspect based on his flight from
police and other factors.6
6
One might argue that defendant's refusal to stop constituted an intervening act
of obstruction, authorizing police to arrest him for that offense and to seize
evidence incident thereto. See State v. Williams, 192 N.J. 1, 16 (2007) (stating
that "[c]ourts of this State have held that eluding the police and resisting arrest
in response to an unconstitutional stop . . . constitute intervening acts and that
evidence seized incident to those intervening criminal acts will not be subject to
A-2122-17T3
15
In sum, based on the totality of circumstances, police stopped defendant
lawfully, because they had reasonable and articulable suspicion that defendant
was the attempted burglar the victim described. The fact that the attempted
burglar was tall, and defendant was not, was not enough to quell the reasonable
and articulable suspicion that the other factors created. The trial court properly
denied defendant's motion to suppress.
Affirmed.
suppression"); State v. Crawley, 187 N.J. 440, 458 (2006) (stating "a person has
no constitutional right to endanger the lives of the police . . . by fleeing or
resisting a stop, even though a judge may later determine the stop was
unsupported by reasonable and articulable suspicion"). However, as the State
does not rely on Williams and Crawley, we do not address the argument.
A-2122-17T3
16