STATE OF NEW JERSEY v. DONTA L. JOHNSON (19-09-2166, CAMDEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-2437-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONTA L. JOHNSON,
Defendant-Appellant.
_______________________
Submitted March 7, 2022 – Decided March 16, 2022
Before Judges Sabatino and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 19-09-2166.
Joseph E. Krakora, Public Defender, attorney for
appellant (Melanie K. Dellplain, Assistant Deputy
Public Defender, of counsel and on the briefs).
Grace C. MacAulay, Acting Camden County
Prosecutor, attorney for respondent (Natalie A. Schmid
Drummond, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
This appeal from a conviction of a weapons offense solely involves search
and seizure issues. Defendant, Donta L. Johnson, appeals the trial court's denial
of his motion to suppress a gun seized without a warrant. Defendant had
dropped the gun in the course of being chased by a police officer after two
officers stopped him and a codefendant on a public sidewalk.
Although the trial court found the initial stop was unconstitutional, it
concluded the officer's pursuit of defendant, who ran after being commanded to
remain in place, was attenuated from the illegal stop. We remand this matter for
additional consideration and findings by the trial court concerning the
attenuation issue. Specifically, the trial court on remand shall expressly address
and weigh each of the three attenuation factors prescribed by case law.
The following sequence of events is reflected in the record, which includes
testimony at the suppression hearing as well as police body-cam recordings that
were presented to the motion judge. 1
On the afternoon of January 24, 2019, the Camden County Police
Department received an anonymous tip that a male dressed all in black was
1
We have reviewed the body-cam footage as part of our appellate review, giving
due deference to the motion judge's interpretation of the footage and the
evidence as a whole. State v. S.S., 229 N.J. 360, 379-81 (2017).
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selling or using drugs from a location in a Camden neighborhood. No further
description of the drug dealer was provided by the tipster.
An hour after receiving the tip, two police officers went to the location, a
blighted residential street, but saw no drug dealing or using occurring. The
police saw two groups of people. One group consisted of a group of about ten
people. The other group consisted of defendant, who was dressed in all black
clothing, and codefendant Shykill Young, who was dressed in all black except
for a red hoodie. As the police approached, defendant and Young walked in the
other direction, away from view.
About a half hour later, the two officers again saw defendant and Young
walking down the same street. This time, the officers arranged to have a third
officer park his car nearby to enable him to catch the two men if they fled. The
two officers got out of their marked car and approached defendant and Young
on the public sidewalk. One officer instructed defendant to take his hands out
of his pockets and stand against a house's stairway. Defendant took his hands
out of his pockets and then immediately ran away.
During the foot chase of defendant, an officer heard a "bang" of a metal
object. That police officer chased defendant into a nearby alley. When he
caught up with him, defendant had apparently fallen, and the officer handcuffed
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him. The officer went back to the spot where he heard the bang and recovered
an apparently discarded gun. The other officer also searched Young, who had
stayed in front of the house where he and defendant were initially stopped. That
officer found on Young a gun, bags of heroin, and other drugs.
After defendant and Young were charged with various offenses, they
moved to suppress the contraband seized without a warrant. The judge
conducted an evidentiary hearing at which two of the officers testified. No
defense witnesses testified.
The court issued a written opinion on February 12, 2020 suppressing all
the evidence against Young but denying the motion as to the evidence against
defendant.
The court reasoned that under Terry v. Ohio, 392 U.S. 1 (1968), the police
initially lacked reasonable suspicion to conduct an investigatory stop of either
defendant. The court noted the tipster’s report was not confirmed. The
description of a male dressed in black was generic. Moreover, Young’s hoodie
was red, not black. The tipster also reported only one man was selling or using
drugs, yet defendant and Young were seen together by the officers at each time.
The court found it insignificant that defendant and his codefendant had initially
walked away from police earlier. The court noted the area was not considered
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a high crime area, although the written opinion later makes a contradictory
finding when discussing defendant.
The court upheld the officer's second stop of defendant that took place in
the alley, because defendant had disobeyed the police command to stand by the
stairway and instead ran away. On this point, the judge relied on the Supreme
Court’s opinions in State v. Williams, 192 N.J. 1 (2007) ("Williams I") and State
v. Crawley, 187 N.J. 440, 458 (2006), which held that a defendant who disobeys
a police officer’s command to stop, even if that command is unlawful, can still
be guilty of obstruction of justice. The court rejected defendant’s argument that
his flight, which was close in time, was not attenuated from the unconstitutional
Terry stop. The judge also found the gun had been discovered by police in a
public area in plain view, and the search of defendant's person was incident to a
lawful arrest.
After losing the suppression motion, defendant entered into a plea
agreement to plead guilty to a gun possession count, N.J.S.A. 2C:39-5(b)(1),
with the State dismissing other counts against him for eluding and other
offenses. By order of the Assignment Judge, the court approved a Graves Act
sentencing downgrade, pursuant to N.J.S.A. 2C:43–6(c). Consequently, the trial
judge sentenced defendant to a five-year term subject to a one-year mandatory
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parole disqualifier. Pursuant to Rule 3:5-7(d), defendant's right to appeal the
suppression ruling was preserved.
On appeal, defendant's brief argues the following point:
POINT I
THE MOTION COURT’S DENIAL OF
DEFENDANT’S SUPPRESSION MOTION MUST BE
REVERSED BECAUSE DEFENDANT’S ACTIONS
FOLLOWING AN ILLEGAL INVESTIGATORY
STOP DID NOT ATTENUATE THE TAINTED STOP.
Upon due consideration of this argument, the existing record, the trial
court's written opinion, and the applicable law, we remand the matter for further
consideration of the attenuation issue. We do so because the trial court's opinion
did not fully analyze the multi-factor legal test for attenuation prescribed by case
law.
It is well established that the exclusionary rule bars the State from entering
the "fruit of the poisonous tree" into evidence, keeping out any evidence
obtained from an unconstitutional search or seizure. Wong Sun v. United States,
371 U.S. 471, 485-88 (1963); State v. Shaw, 213 N.J. 398, 412-13 (2012).
Exclusion does not turn on whether the illegal search or seizure was a "but -for"
cause of the State obtaining the evidence a defendant seeks to be suppressed.
Shaw, 213 N.J. at 413. Rather, courts hearing suppression motions must
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determine whether the evidence "was a product of the 'exploitation of [the
primary] illegality'—the wrongful detention—or of 'means sufficiently
distinguishable to be purged of the primary taint.'" Ibid. (quoting Wong Sun,
371 U.S. at 488).
Hence, the exclusionary rule applies not only to evidence obtained "as a
primary result of warrantless conduct, but as a consequence of it" as well. State
v. Atwood, 232 N.J. 433, 449 (2018) (quoting State v. Holland, 176 N.J. 344,
353 (2003)). "During an illegal search, for example, the police might acquire
information that leads to other evidence useful to prosecutors. Under that
circumstance, the later-derived evidence might be suppressed or excluded as
'fruit of the poisonous tree.'" Ibid. (quoting Holland, 176 N.J. at 353).
In the present case, the trial court correctly determined that the police
officers' initial stop of defendant and Young on the sidewalk was
unconstitutional. As the court found, the officers lacked a reasonable suspicio n
that the two men had engaged in criminal activity. The court explained at length
in its opinion why the information conveyed to and observed by the officers was
inadequate to provide a reasonable basis to suspect that either defendant or
Young recently had been selling or using drugs at the location reported by the
anonymous tipster. See State v. Rodriguez, 172 N.J. 117, 126 (2002) (requiring
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"specific and articulable facts" to support reasonable suspicion to justify a
warrantless Terry stop).
Among other things, the tipster's vague and generic description of a single
male dressed all in black selling drugs did not correspond with these two men,
one of whom was wearing a red hoodie. The officers went to the location, more
than an hour after the tip, and they saw no drug activity occurring. The mere
fact that defendants walked away when the police drove by that location is not
in itself indicative of criminality. State v. Ruiz, 286 N.J. Super. 155, 163 (App.
Div. 1995) (noting such movement "signifies nothing more than behavior in
fulfillment of a wish to be [] somewhere else").
Given these facts, the court's finding that the police illegally stopped
defendant and Young on the sidewalk is consistent with the Supreme Court's
recent opinion in State v. Nyema, __ N.J. __, __ (2022), which invalidated a
warrantless stop of defendants based upon a vague description of their race and
gender and their proximity to the scene of a recent robbery. Indeed, the State
has not cross-appealed the trial court's determination of an illegal stop.
The State argued, and the trial court agreed, that defendant's flight after
he was told by police to remain in place sufficiently attenuated the illegal stop
from the evidence the police obtained after he fled. Our courts use a three-prong
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analysis for determining if evidence is sufficiently attenuated from an
unconstitutional stop to be admissible, including these factors: "(1) the temporal
proximity between the illegal conduct and the challenged evidence; (2) the
presence of intervening circumstances; and (3) the flagrancy and purpose of the
police misconduct." State v. Johnson, 118 N.J. 639, 653 (1990) (citing Brown
v. Illinois, 422 U.S. 590, 603-04 (1975)).
The trial court's written opinion did not address these three attenuation
factors. Instead, the court appears to have adopted a per se approach, concluding
that defendant's disobedience of a police command broke the chain of causation
and purged the taint of the illegal stop. However, that is not necessarily so.
To be sure, as the trial court recognized, in Crawley and Williams I, the
Supreme Court held on the facts presented that a defendant's flight disobeying a
police command to stop can attenuate the illegality of the stop and allow the
State to charge such a defendant with obstruction of justice under N.J.S.A.
2C:29-1. Here, the indictment against defendant did not charge obstruction, but
it did include a count for eluding law enforcement, N.J.S.A. 2C:29-2(a). We
accept the State's argument, which the trial court adopted, that defendant could
be guilty of eluding if his flight was not attenuated from the illegal stop on the
sidewalk. However, our case law has not construed Crawley and Williams I to
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express a per se rule that any flight by a defendant after an illegal police
command to stop automatically requires the court to admit evidence derived
from the ensuing chase.
In State v. Williams, 410 N.J. Super. 549 (App. Div. 2009) ("Williams
II"), a case not cited in the trial court's opinion, we clarified that, at times, a
defendant's disobedience of a police command to stop does not necessarily
attenuate the fruits of a search occurring after such a defendant flees. In
Williams II, the defendant was arrested for obstruction, in violation of N.J.S.A.
2C:29-1(a). Id. at 554. Police officers responded to a housing complex to
provide a police presence to quell what they perceived to be a looming threat of
retaliatory gun violence. Id. at 552. The defendant was riding his bicycle when
he came upon the officers and looked startled. Ibid. He immediately started
pedaling faster and turned away from them when he saw them. Id. at 553. Then
an officer commanded him to stop. Ibid. He stopped pedaling when he saw
more officers ahead of him, and the officer who ordered him to stop grabbed
him by the arm four or five seconds after the initial command. Ibid. While in
that officer's grasp, defendant threw a box containing drugs from his poc ket to
avoid detection. Ibid.A-2437-20
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We ruled in Williams II that the officers lacked reasonable suspicion for
the stop. Id. at 558. In analyzing the second attenuation prong, we found that
"there were no significant intervening circumstances between the unlawful
police command to defendant to stop his bicycle and defendant's discard of the
box," id. at 563 (quoting Johnson, 118 N.J. at 653), despite the N.J.S.A. 2C:29-
1(a) violation. We reasoned that Williams I was not factually on point because
in that case—and the cases upon which the Supreme Court relied in reaching
that decision—the defendant's flight was more violent or otherwise dangerous.
Ibid. In requiring suppression in Williams II, we deemed it important that the
"defendant did not force the officers to engage in a lengthy and dangerous
pursuit to apprehend him or engage in any act of physical aggression against
[the arresting officer]." Ibid.Because the trial court in this case strayed from Williams II and instead
used a per se approach to attenuation, we are constrained to remand for the court
to analyze the evidence derived from the pursuit of defendant using the three-
part test prescribed by case law. Specifically, the court should address and
weigh: (1) the immediacy of defendant's flight, as shown on the video; (2) the
presence of intervening circumstances; and (3) the flagrancy and purpose of the
alleged police misconduct.
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In performing this analysis, the court should not rely on facts that it
already deemed inadequate to support reasonable suspicion for the initial stop.
We do not suggest any outcome, noting that either party may pursue appellate
review if aggrieved by the trial court's remand decision. The trial court shall
have the discretion to have the parties adduce additional testimony or proofs if
that will aid it in its attenuation analysis. 2
We vacate the denial of suppression and remand for reconsideration. We
do not retain jurisdiction. Pending the outcome of the remand proceedin gs,
defendant's conviction and sentence shall remain undisturbed.
2
We agree with defendant that the search-incident-to-arrest doctrine does not
authorize the seizure of the gun, which was not on defendant's person or near
him when he was arrested. State v. Eckel, 185 N.J. 523, 530 (2006) (quoting
Chimel v. California, 395 U.S. 752, 763 (1969)) (limiting the search-incident-
to-lawful-arrest exception to searches of the area "within [the] immediate
control" of the arrestee at the time of the arrest). Nor can the State on remand
rely on a theory that the gun was abandoned, as that theory has not been briefed
on appeal by the State. See Telebright Corp. v. Dir., Div. of Tax'n, 424 N.J.
Super. 384, 393 (App. Div. 2012) (treating such a failure to brief an argument
as a waiver).
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