State v. Jamar J. Myers (082858)(Mercer County & Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Peter Nyema (A-39-20) (085146)
State v. Jamar J. Myers (A-40-20) (082858)
Argued October 25, 2021 -- Decided January 25, 2022
PIERRE-LOUIS, J., writing for a unanimous Court.
In this case, the Court considers whether reasonable and articulable suspicion
existed when a police officer conducted an investigatory stop of the vehicle in which
defendants Peter Nyema and Jamar Myers were riding with co-defendant Tyrone Miller.
Around midnight on May 7, 2011, a 7-Eleven was robbed. At approximately
12:15 a.m., Sergeant Mark Horan of the Hamilton Township Police Department received
a transmission about the armed robbery, which “had just occurred.” Horan testified that
the dispatch described the suspects “as two Black males, one with a handgun.” Horan
activated the lights and sirens on his marked patrol car and drove towards the 7-Eleven.
Approximately three-quarters of a mile from the 7-Eleven, Horan saw a car
approaching in the oncoming traffic lane. Using the spotlight mounted to his police
vehicle to illuminate the inside of the car, he observed that the occupants were a man and
a woman and let them pass. Sergeant Horan testified that as he continued on, a second
set of headlights approached. He illuminated the inside of the vehicle and observed three
Black males; “[t]he description of the suspects was two Black males so at that point I
decided to issue a motor vehicle stop on the second vehicle.” Horan later explained that
he was also struck by the lack of reaction to the spotlight by the occupants of the car, and
that he “took into consideration the short distance from the scene, as well as the short
amount of time from the call” as he made the stop.
Upon stopping the vehicle, Sergeant Horan radioed headquarters with the license
plate number and a description of the car, and two more officers arrived. Before he
approached the vehicle, Horan learned from one of the other officers that the robbery
suspects had been wearing dark or black clothing or jackets. As he approached, Horan
observed “some dark jackets” on the unoccupied rear passenger seat and on the floor of
the vehicle. Horan spoke with the driver, who was later identified as Miller. Nyema was
sitting in the passenger seat and Myers was in the rear passenger-side seat. The
dispatcher advised Horan that the vehicle had been reported stolen. All three occupants
were placed under arrest.
1
More officers arrived on the scene, and while several officers secured the
arrestees, others assisted Horan in searching for a weapon. First, Horan retrieved the
clothing he had observed from the backseat of the vehicle. Then, he and the other
officers searched other parts of the vehicle, locating additional clothing in the trunk and a
black semi-automatic handgun under the hood. Searches of the men themselves yielded
just under $600 cash. Approximately $600 was reported stolen from the 7-Eleven. The
vehicle was then impounded, and police transported the three men to the police station.
Miller pled guilty to two weapons offenses and agreed to testify against Nyema
and Myers, who jointly moved to suppress the physical evidence seized from the stop.
The trial court granted the motion in part as to the items seized from the trunk and the
hood. But the court found that the initial stop was supported by reasonable and
articulable suspicion, that the retrieval of clothing from the interior of the vehicle was
permitted under the plain view exception to the warrant requirement, and that the money
was lawfully seized incident to defendants’ arrest. As to the robbery of the 7-11, both
Myers and Nyema pled guilty to first-degree robbery.
Both defendants appealed from the partial denial of their motion to suppress. In
Myers’s case, the Appellate Division affirmed. In Nyema’s case, the Appellate Division
held that the stop was not based on reasonable and articulable suspicion. 465 N.J. Super.
181, 185 (App. Div. 2020). Accordingly, Nyema’s conviction was reversed, his sentence
vacated, and the matter remanded for further proceedings. Ibid.The Court granted certification in Nyema. 245 N.J. 256 (2021). On reconsideration,
it granted certification in Myers “limited to the issue of whether the police officer had
reasonable articulable suspicion to stop the car.” 245 N.J. 250, 251 (2021).
HELD: The only information the officer possessed at the time of the stop was the race
and sex of the suspects, with no further descriptors. That information, which effectively
placed every single Black male in the area under the veil of suspicion, was insufficient to
justify the stop of the vehicle and therefore does not withstand constitutional scrutiny.
1. Searches and seizures conducted without warrants issued upon probable cause are
presumptively unreasonable and are invalid unless they fall within one of the few well-
delineated exceptions to the warrant requirement. The exception at issue in this case is an
investigative stop, a procedure that involves a relatively brief detention by police during
which a person’s movement is restricted. An investigative stop or detention does not
offend the Federal or State Constitution, and no warrant is needed, 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. (pp. 21-22)
2. Although reasonable suspicion is a less demanding standard than probable cause,
neither inarticulate hunches nor an arresting officer’s subjective good faith suffices.
2
Determining whether reasonable and articulable suspicion exists for an investigatory stop
is a highly fact-intensive inquiry that demands evaluation of the totality of circumstances
surrounding the police-citizen encounter. In many cases, the reasonable suspicion
inquiry begins with the description police obtained regarding a person involved in
criminal activity and whether that information was sufficient to initiate an investigatory
detention. In State v. Shaw, 213 N.J. 398 (2012), and State v. Caldwell, 158 N.J. 452(1999), the Court determined that police lacked reasonable suspicion to conduct an
evidentiary stop based on descriptions limited to the race and sex of the suspect. The
Court reviews those cases in detail and notes that even inquiries or investigative
techniques that do not qualify as searches and seizures must still comport with the Equal
Protection Clause. And New Jersey jurisprudence is well-settled that seemingly furtive
movements, without more, are insufficient to constitute reasonable and articulable
suspicion. The totality of the circumstances of the encounter must be considered in a fact-
sensitive analysis to determine whether officers objectively possessed reasonable and
articulable suspicion to conduct an investigatory stop. (pp. 23-27)
3. Applying those principles, the Court does not find that the information Sergeant Horan
possessed at the time of the motor-vehicle stop constituted reasonable and articulable
suspicion. Certainly, race and sex -- when taken together with other, discrete factors --
can support reasonable and articulable suspicion. But here, the initial description did not
provide any additional physical descriptions that would differentiate the two Black male
suspects from any other Black men in New Jersey. And the radio dispatch indicated that
the store was robbed by two Black men. Sergeant Horan testified that upon seeing three
Black males in the vehicle, he inferred that the third was the getaway driver. While
Sergeant Horan’s inference was reasonable, the reality is that the ambiguous nature of the
description could have resulted in Black men in any configuration and using any mode of
transportation being stopped because the only descriptors of the suspects were race and
sex. Sergeant Horan saw the clothing and learned the car had been reported stolen after
the stop, but information acquired after a stop cannot retroactively serve as the basis for
the stop. Defendants’ non-reaction to the spotlight -- like nervous behavior that courts
have reasonably found not to support reasonable suspicion -- did not justify the stop.
And even considering the closeness of Sergeant Horan’s encounter with defendants in
terms of spatial and temporal proximity to the robbery does not add significantly to the
analysis of whether the stop was lawful because the 7-Eleven was located on a roadway
close to a major interstate highway and the record is unclear as to when the robbery
actually occurred. The non-specific and non-individualized factors asserted here do not
add up to a totality of circumstances analysis upon which reasonable suspicion can be
found. Zero plus zero will always equal zero. (pp. 28-33)
AFFIRMED in Nyema; REVERSED and REMANDED in Myers.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE PIERRE-LOUIS’s opinion.
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SUPREME COURT OF NEW JERSEY
A-39 September Term 2020
A-40 September Term 2020
085146 and 082858
State of New Jersey,
Plaintiff-Appellant,
v.
Peter Nyema, a/k/a
Pete Dinah, Kareem T. Jeffries,
Hne Nyema, and Pete Nyme,
Defendant-Respondent.
State of New Jersey,
Plaintiff-Respondent,
v.
Jamar J. Myers,
Defendant-Appellant.
State v. Peter Nyema (A-39-20):
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
465 N.J. Super. 181 (App. Div. 2020).
State v. Jamar J. Myers (A-40-20):
On certification to the Superior Court,
Appellate Division.
1
Argued Decided
October 25, 2021 January 25, 2022
Michael D. Grillo, Assistant Prosecutor, argued the cause
for appellant in State v. Nyema (A-39-20) and respondent
in State v. Myers (A-40-20) (Angelo J. Onofri, Mercer
County Prosecutor, attorney; Randolph E. Mershon, III,
Assistant Prosecutor, of counsel and on the briefs, and
Laura Sunyak, Assistant Prosecutor, on the briefs).
Alyssa Aiello, Assistant Deputy Public Defender, argued
the cause for respondent in State v. Nyema (A-39-20)
(Joseph E. Krakora, Public Defender, attorney; Alyssa
Aiello, of counsel and on the briefs).
Tamar Y. Lerer, Assistant Deputy Public Defender,
argued the cause for appellant in State v. Myers (A-40-
20) (Joseph E. Krakora, Public Defender, attorney; Tamar
Y. Lerer, of counsel and on the briefs).
Steven A. Yomtov, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
in State v. Nyema (A-39-20) and in State v. Myers (A-40-
20) (Andrew J. Bruck, Acting Attorney General, attorney;
Carol M. Henderson, Assistant Attorney General, of
counsel, and Steven A. Yomtov, of counsel and on the
briefs).
Alexander Shalom argued the case for amicus curiae 66
Black ministers and other clergy members in State v.
Nyema (A-39-20) and in State v. Myers (A-40-20)
(American Civil Liberties Union of New Jersey
Foundation, attorneys; Alexander Shalom, Jeanne
LoCicero, and Karen Thompson, on the briefs).
Raymond Brown argued the cause for amici curiae Latino
Leadership Alliance of New Jersey and National
Coalition of Latino Officers in State v. Nyema (A-39-20)
and State v. Myers (A-40-20) (Pashman Stein Walder
2
Hayden, attorneys; CJ Griffin and Darcy Baboulis-
Gyscek, on the briefs).
Robert J. DeGroot argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey
in State v. Nyema (A-39-20) and State v. Myers (A-40-
20) (Oleg Nekritin, on the briefs).
Joseph M. Mazraani submitted a brief on behalf of
amicus curiae Kristin Henning of the Georgetown Law
Juvenile Justice Clinic & Initiative in State v. Nyema (A-
39-20) and State v. Myers (A-40-20) (Mazraani &
Liguori, and Georgetown Juvenile Justice Clinic &
Initiative, attorneys; Joseph M. Mazraani, and Kristin
Henning, of the District of Columbia bar, admitted pro
hac vice, on the briefs).
Jonathan Romberg submitted a brief on behalf of amicus
curiae Seton Hall University School of Law Center for
Social Justice in State v. Myers (A-40-20) (Seton Hall
University Scott of Law Center for Social Justice,
attorneys; Jonathan Romberg, of counsel and on the
brief).
JUSTICE PIERRE-LOUIS delivered the opinion of the Court.
In this case, we must determine whether reasonable and articulable
suspicion existed when a police officer conducted an investigatory stop of the
vehicle in which defendants were riding. After the robbery of a 7-Eleven store
in Hamilton, police dispatch alerted officers that the suspects were two Black
males, one armed with a gun. Sergeant Mark Horan heard the radio
transmission and made his way to the scene. While en route, Sergeant Horan
3
used the mounted spotlight on his marked police car to illuminate the interior
of passing vehicles in order to search for the robbery suspects. In the first
vehicle Horan encountered, a man and a woman reacted with annoyance and
alarm when Horan shone the spotlight into their car. When Horan came across
a second vehicle, approximately three-quarters of a mile from the store, he
illuminated the interior of the car with the spotlight and saw three Black males
inside. According to Horan, the men did not react to the spotlight at all.
Horan viewed that non-reaction as “odd” considering the reaction of the
passengers in the first car. At that point, the only information Horan had about
the robbery was that the suspects were two Black males, one with a gun, who
fled the robbery on foot. Dispatch had not provided any additional identifiers.
Based on the race and sex of the occupants and their non-reaction to the
spotlight, Sergeant Horan executed a motor vehicle stop of the car. After
stopping the car, Horan learned that the vehicle had been reported stolen so
defendants were placed under arrest. A search of the car revealed dark
clothing -- clothes matching what the suspects were wearing during the
robbery -- and a handgun hidden under the hood of the car.
Defendants Peter Nyema, Jamar Myers, and a third co-defendant were
charged with a host of offenses related to the 7-Eleven robbery. Nyema and
Myers jointly moved to suppress the items seized during the search of the
4
vehicle, arguing that the stop was unlawful because it was not based on
reasonable suspicion. The trial court denied the motion to suppress and both
Myers and Nyema eventually pled guilty to first-degree robbery.
In separate appeals, both men challenged the denial of the motion to
suppress, resulting in opposite Appellate Division outcomes. In Myers’s
appeal, an Appellate Division panel affirmed the trial court’s denial of the
motion to suppress, ruling that the stop was supported by reasonable suspicion.
In Nyema’s appeal, a different Appellate Division panel reversed the trial court
and vacated Nyema’s conviction and sentence, finding that Sergeant Horan did
not have reasonable suspicion to conduct the stop of the car.
We granted both defendants’ petitions for certification on the question of
whether reasonable and articulable suspicion existed to stop the car. We now
reverse the Myers decision and affirm in Nyema. The only information the
officer possessed at the time of the stop was the race and sex of the suspects,
with no further descriptors. That information, which effectively placed every
single Black male in the area under the veil of suspicion, was insufficient to
justify the stop of the vehicle and therefore does not withstand constitutional
scrutiny.
5
I.
We rely on the testimony developed at the evidentiary hearing on
defendants’ motion to suppress for the following summary.
Around midnight on May 7, 2011, a 7-Eleven in Hamilton, New Jersey
was robbed. At approximately 12:15 a.m., Sergeant Mark Horan of the
Hamilton Township Police Department received a transmission about the
armed robbery, which “had just occurred.” Horan testified that the dispatch
described the suspects “as two Black males, one with a handgun.”
Horan activated the lights and sirens on his marked patrol car and drove
towards the 7-Eleven at a “relatively high speed” for one to two minutes,
shutting off the lights and sirens as he drew closer. According to Sergeant
Horan, traffic was light because it was late at night. Approximately three-
quarters of a mile from the 7-Eleven, Horan saw a car approaching in the
oncoming traffic lane. Using the spotlight mounted to his police vehicle to
illuminate the inside of the car, 1 he observed that the occupants were a man
and a woman and let them pass. Sergeant Horan testified as follows:
I continued on. The second set of headlights
approached me, I illuminated the inside of that vehicle
and I observed three Black males, you know, that went
past me.
1
This was not a standard procedure sanctioned by the Hamilton Police
Department, but a technique that Horan employed while searching for suspects
at night.
6
The description of the suspects was two Black males so
at that point I decided to issue a motor vehicle stop on
the second vehicle.
He would later explain that the man and the woman in the first vehicle
reacted to the spotlight with “alarm or annoyance,” and that the “driver
shielded his eyes a little bit.” In contrast, the occupants of the second vehicle ,
including defendants, showed no reaction and kept looking straight ahead.
Horan testified that the occupants of the second vehicle “were all males, Black
males. And I received no response from any of them that I could observe, no
one looked at me, no one turned towards the car. It was as if I wasn’t there.”
He explained that this non-reaction “struck [him] as odd.” He further testified
that it was his “experience that sometimes people who prefer not to be noticed
tend to ignore the spotlight.”
Upon witnessing the non-reaction of the vehicle’s occupants, Horan
activated his lights and executed a stop of the second vehicle. Horan testified
that at the time of the stop,
[t]he sex and race were consistent with that of the
description. I had three occupants in the vehicle. The
suspects were described at the time of the call as two.
So I had, at least, that. I took into consideration the
short distance from the scene, as well as the short
amount of time from the call and all those things
considered is what I took into consideration to effect
the stop.
7
Upon stopping the vehicle, Sergeant Horan radioed headquarters with the
license plate number and a description of the car -- a 2000 silver Toyota
Corolla with Pennsylvania license plates.
Two more officers arrived just as Horan was exiting his patrol car. All
three approached the vehicle with their weapons drawn. Horan ordered the
driver to turn off the engine and told all occupants to place their hands on the
roof. Before he approached the vehicle, Horan learned from one of the other
officers that the robbery suspects had been wearing dark or black clothing or
jackets. As he approached, Horan observed “some dark jackets” on the
unoccupied rear passenger seat and on the floor of the vehicle.
Horan spoke with the driver, who was later identified as co-defendant
Tyrone Miller, a/k/a Ajene Drew. Nyema was sitting in the passenger seat and
Myers was in the rear passenger-side seat. The dispatcher asked Horan to
confirm the license plate number and when he did, the dispatcher advised
Horan that the vehicle had been reported stolen. All three occupants were then
removed from the vehicle and placed under arrest.
More officers arrived on the scene, and while several officers secured
the arrestees, others assisted Horan in searching for a weapon. First, Horan
retrieved the clothing he had observed from the backseat of the vehicle. Then,
he and the other officers searched other parts of the vehicle, locating additional
8
clothing in the trunk and a black semi-automatic handgun wrapped in a red
bandana under the hood. Searches of the men themselves yielded just under
$600 cash. Approximately $600 was reported stolen from the 7-Eleven
robbery. The vehicle was then impounded, and police transported the three
men to the police station.
II.
On August 23, 2011, a Mercer County grand jury charged Nyema,
Myers, and Miller in a multiple count indictment.
All three men were charged with first-degree robbery, as well as theft,
aggravated assault, terroristic threats, several weapons offenses, and theft by
receiving stolen property. They were each also charged with conduct-specific
counts related to the theft of the car or the arrest, and Miller was charged with
possession of a firearm as a felon.
Miller pled guilty to two second-degree weapons offenses and agreed to
testify against Nyema and Myers.
A.
Nyema and Myers jointly moved to suppress the physical evidence
seized from the stop. During a three-day evidentiary hearing, the trial court
heard testimony from Sergeant Horan; Nyema’s father, who owned the vehicle
and who testified that it had not been reported stolen; and Detective William
9
Mulryne, who testified that he had personally taken the stolen vehicle report
from Nyema’s father several days before the car stop.
The trial court granted the motion in part and denied it in part,
suppressing the handgun found under the hood of the car but ruling that the
clothing and money had been lawfully seized. The court reasoned that because
the initial stop was supported by reasonable and articulable suspicion, the
retrieval of the clothing from the interior of the vehicle was permitted under
the plain view exception to the warrant requirement and the money was
lawfully seized incident to defendants’ arrest. However, the trial court found
that the full warrantless search of the vehicle, including the trunk and hood,
which yielded the handgun, could not be justified by exigent circumstances
because the vehicle’s occupants were already securely in custody and the
vehicle was located in a residential neighborhood shortly after midnight.
Although the court found that defendants did not have a reasonable
expectation of privacy in the vehicle because it had been reported stolen, the
court explained that a lack of privacy interest was not a valid substitute for
probable cause; rather, it was only one factor in determining whether exigent
circumstances justified a warrantless search. The court concluded that the
officers could have simply impounded the vehicle and searched it back at the
police precinct or applied for a warrant while at the scene.
10
In upholding Horan’s reasonable suspicion for the initial car stop, the
court noted that the stop occurred close to the robbery in terms of both time
and space; that Horan observed the vehicle approaching from the direction of
the crime scene; that the vehicle’s occupants “gave no response whatsoever to
the lights shone on them, made no eye contact whatsoever”; and “[a]lso, to be
quite honest, the racial makeup of the occupants of the vehicle, three Black
males traveling away from the scene.”
B.
Myers -- Guilty Plea and Sentencing
On November 29, 2016, Myers pled guilty to first-degree robbery of the
7-Eleven, reserving his right to appeal several evidentiary rulings, including
the denial of his motion to suppress based on the stop. Myers also pled guilty
to first-degree felony murder on an unrelated indictment 2 and entered guilty
pleas to three violations of probation.
On July 7, 2017, Myers was sentenced to a term of thirty years for the
unrelated felony murder, with no possibility of parole, and a concurrent term
of twelve years, subject to the No Early Release Act (NERA), for the armed
2
In February 2014, Myers was charged in a second indictment related to two
offenses that occurred in Trenton on April 29, 2011 -- an attempted robbery of
one pharmacy and the completed robbery of another pharmacy, during which
the pharmacist was shot and killed.
11
robbery of the 7-Eleven. For the probation violations, Myers was sentenced to
five years.
Myers appealed, arguing, among other things, that the joint motion to
suppress should have been granted in its entirety because the initial stop was
not based on reasonable suspicion and, furthermore, that the plain view
exception to the warrant requirement did not justify the officers’ entry into the
vehicle.
The Appellate Division affirmed the trial court’s rulings and Myers’s
conviction. Regarding the motion to suppress, the court noted that the trial
court had specifically rejected Myers’s argument that the stop was based solely
on defendants’ race and sex. Rather, the Appellate Division found that
the trial court pointed out that the suspects were
reported to be African-American and, therefore, there
was a reasonable and particularized suspicion to
conduct an investigatory stop of a vehicle with African-
American men inside when that vehicle was seen a
short distance from the 7-Eleven in the early morning
when there were few other cars on the road.
The Appellate Division concluded that “those factual findings are
supported by the evidence in the record” and that there was therefore no basis
for reversal. The court also affirmed the trial court’s ruling that seizure of the
clothing from the backseat of the vehicle was justified by the plain view
exception to the warrant requirement. This Court denied Myers’s petition for
12
certification seeking review of the denial of his motion to suppress. 240 N.J.
22 (2019).
C.
Nyema -- Trial, Guilty Plea and Sentencing
On September 20, 2017, a jury trial proceeded in Nyema’s case. After
the State rested, Nyema entered an open guilty plea to first-degree robbery.
Nyema’s sentencing took place almost a year later on September 6, 2018,
immediately after an unsuccessful motion to withdraw his guilty plea. The
court sentenced Nyema to a custodial term of fifteen years, subject to NERA.
Like Myers, Nyema appealed the partial denial of the joint motion to
suppress, arguing that police lacked reasonable suspicion to conduct the initial
stop and that, even if the stop had been lawful, the officers’ warrantless entry
into the vehicle to seize clothing from the backseat was not justified by the
plain view exception.
The Appellate Division held that the stop was not based on reasonable
and articulable suspicion. State v. Nyema, 465 N.J. Super. 181, 185 (App.
Div. 2020). Accordingly, Nyema’s conviction was reversed, his sentence
vacated, and the matter remanded for further proceedings. Ibid.The Appellate Division rejected the trial court’s conclusion that Nyema
lacked a reasonable expectation of privacy in the vehicle because it had been
13
reported stolen. Id. at 189. In the court’s view, although evidence had been
presented to indicate that the vehicle had been reported stolen, no testimony
indicated that the vehicle actually was stolen and, therefore, Nyema retained a
reasonable expectation of privacy in his father’s car. Id. at 189-90. The court
then considered whether the stop was based on a reasonable and articulable
suspicion. Id. at 190. The court summarized Sergeant Horan’s testimony on
why he stopped the vehicle as: “(1) a store had been robbed by two Black
men; (2) the car was within three quarters of a mile from the store, traveling
away from it; and (3) the three Black men in the car did not react to the
spotlight he pointed into their vehicle.” Id. at 191.
The court explained that “[t]he men’s non-reaction to the light does not
add much to a reasonable articulable suspicion” because Horan only observed
them for a second or two as they drove by. Ibid. Furthermore, the court noted
that the record “does not establish how much time passed between when the
robbery occurred and the car was stopped”; therefore, it was unclear “whether
Horan had a reasonable basis to assume the perpetrators were still in the area.”
Id. at 192.
The court found that “[k]nowledge of the race and gender of criminal
suspects, without more, is insufficient suspicion to effectuate a seizure.” Ibid.Because Horan’s information amounted to little more than the race and sex of
14
the criminal suspects, it amounted only to a hunch, not to reasonable suspicion.
Ibid. To hold otherwise “would mean that the police could have stopped all
cars with two or more Black men within a three-quarters-of-a-mile radius of
the 7-Eleven store.” Ibid.The State petitioned this Court for certification, arguing that the Nyema
decision directly conflicted with Myers and improperly focused “solely upon
the suspect’s description.”
This Court granted the State’s petition for certification. 245 N.J. 256(2021). Because the Appellate Division’s published opinion in Nyema’s case
held that Horan did not have reasonable suspicion to stop the car based on the
same exact set of facts in Myers’s case, Myers filed a motion for
reconsideration of his petition for certification. This Court granted Myers’s
motion for reconsideration, “limited to the issue of whether the police officer
had reasonable articulable suspicion to stop the car.” 245 N.J. 250, 251
(2021).
III.
A.
With regard to Myers, the State contends that the Appellate Division
correctly upheld the trial court’s finding that there was reasonable and
15
articulable suspicion to stop the vehicle based on the evidence in the record.
The State urges this Court to affirm that holding.
Regarding Nyema, the State argues that the Appellate Division decision
should be reversed and Nyema’s conviction reinstated. The State contends
that, in addition to the defendants’ race and sex, the motion court found
reasonable suspicion based on (1) the short duration between the initial
robbery report and the stop; (2) the location and direction of the vehicle in
relation to the 7-Eleven; (3) the presence of three individuals in the car, giving
rise to the inference that the two robbers had been joined by a getaway driver;
and (4) the occupants’ non-reaction to the spotlight.
As for the time, the State argues that the Nyema decision was incorrect
in finding that the State failed to present evidence establishing how much time
elapsed between the robbery and the stop. To the contrary, the State notes that
Sergeant Horan testified that he saw the defendants’ vehicle about two or three
minutes after receiving the report that a robbery had “just occurred.”
Regarding defendants’ behavior when Sergeant Horan used the spotlight on the
second vehicle, the State argues that Nyema erred by discounting the
defendants’ non-reaction to the spotlight, particularly because that response
contrasted so starkly with the reaction of the occupants of the previous vehicle.
16
According to the State, “[t]he defendants’ abnormal non-reaction suggested a
calculated effort on the part of all three defendants to avoid detection.”
B.
The Attorney General, appearing as amicus curiae, takes no position
regarding whether the investigatory stop in this case should be upheld. The
Attorney General appears for the limited purpose of reiterating that racial
profiling, in all its forms, must be eliminated from policing decision s. The
Attorney General asserts that consideration of a person’s race or ethnicity -- in
drawing an inference that an individual may be involved in criminal activity or
in exercising police discretion with respect to how the officer will deal with
that person -- will not be tolerated and is prohibited by Attorney General Law
Enforcement Directive No. 2005-1, which established a statewide policy
prohibiting the practice of “Racially-Influenced Policing.” The Attorney
General notes, however, that under Directive No. 2005-1, when race is a
descriptive factor in connection with a “Be-On-The-Lookout” announcement,
or a pre-existing investigation into a specific criminal activity, it may be
deemed an objective identifier. The Attorney General emphasizes that the
correct legal standard for adjudicating whether reasonable suspicion exists is
the totality-of-the-circumstances test.
17
C.
Because defendants’ arguments are substantially similar, we consider
them together.
Myers argues that the stop was not supported by reasonable suspicion
because “[t]he only similarities between the description of the suspects and the
men are their race and gender.” He emphasizes that the officer stopped a car
occupied by three Black men based only on a report that two Black men had
fled on foot after a nearby robbery. Myers argues that “there was no
description of the suspects other than their race,” and that “accept[ing] this
meager description as constituting reasonable suspicion” would allow police to
have stopped any number of Black men, whether in a car or on foot, within a
three-quarter-mile radius of the crime scene.
Nyema takes the same position as Myers. Nyema argues that the
Appellate Division decision in his case correctly concluded that reasonable
suspicion did not exist. Analyzing the stop based on the totality of the
circumstances, Nyema contends that both the proximity to the 7-Eleven and
the defendants’ non-reaction to the spotlight “provided zero basis for
reasonable suspicion,” leaving only a description of the two Black men fleeing
on foot to establish reasonable suspicion for the stop.
18
D.
Several amici support defendants’ positions.
Black Ministers and Other Clergy Members (collectively, Clergy
members) argue that the other factors in this case -- proximity to the crime
scene and the non-reaction to the spotlight -- fail to create reasonable and
articulable suspicion. The Clergy members also contend that race-based stops
cause tremendous harm and are unreasonable because they fail to meaningfully
limit the number of people subjected to them. Furthermore, such stops involve
an aggravated or uncomfortable response from Black motorists, which may
result from a legitimate fear of potential violence from law enforcement. The
Clergy members recommend that this Court create a prophylactic rule
preventing police officers from effectuating stops where the only or
predominant basis for the stop is that the stopped individuals match the race
and gender of the suspects.
The Association of Criminal Defense Lawyers of New Jersey (ACDL)
argues that this Court must affirm in Nyema and reverse in Myers because law
enforcement impermissibly stopped the defendants on the basis of race. The
ACDL reasons that racial profiling has been a historically pervasive problem
and that investigative stops based on race are unconstitutional.
19
Amicus the Seton Hall University School of Law Center for Social
Justice (the Center) argues that the suspects’ non-reaction, location, and
description provided no individualized basis for reasonable suspicion .
Regarding location, the Center reasons that defendants’ location provided no
basis for individualized suspicion because the suspects could have driven in
any direction away from the 7-Eleven and been anywhere within a fifty-mile
radius of the store. The Center argues that the suspects’ description provided
no basis for reasonable suspicion other than identifying Black males, which
was an impermissible basis for an investigatory stop.
In their joint amicus brief, the Latino Leadership Alliance of New Jersey
(LLANJ) and the National Coalition of Latino Officers (NCLO) argue that the
State failed to prove that police had reasonable suspicion to conduct an
investigatory stop of the vehicle based on specific and articulable facts.
Further, the LLANJ and NCLO contend that racial profiling significantly
undermines trust in the criminal justice system and makes the state less safe
for everyone.
Amicus Kristin Henning, Director of the Georgetown Law Juvenile
Justice Clinic & Initiative, argues that there was no rational basis to believe
that the men’s non-reaction to the officer shining the light into the car had any
bearing on suspicion. Furthermore, Henning contends that implicit racial bias
20
thrives when officers rely on vague, race-based descriptions. In this case, the
description relied solely on race and sex, which is insufficient to constitute
reasonable and articulable suspicion. Henning argues that race-based over-
policing weakens constitutional protections and harms individuals,
communities, and public safety.
IV.
A.
Our standard of review on a motion to suppress is deferential -- we must
“uphold the factual findings underlying the trial court’s decision so long as
those findings are ‘supported by sufficient credible evidence in the record.’”
State v. Ahmad, 246 N.J. 592, 609 (2021) (quoting State v. Elders, 192 N.J.
224, 243 (2007)). This Court defers to those findings in recognition of the trial
court’s “opportunity to hear and see the witnesses and to have the ‘feel’ of the
case, which a reviewing court cannot enjoy.” Elders, 192 N.J. at 244 (quoting
State v. Johnson, 42 N.J. 146, 161 (1964)). A trial court’s legal conclusions,
however, and its view of “the consequences that flow from established facts,”
are reviewed de novo. State v. Hubbard, 222 N.J. 249, 263 (2015).
B.
The Fourth Amendment of the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution, in almost identical language,
21
protect against unreasonable searches and seizures. Under both Constitutions,
“searches and seizures conducted without warrants issued upon probable cause
are presumptively unreasonable and therefore invalid.” Elders, 192 N.J. at 246(citations omitted). Consequently, “the State bears the burden of proving by a
preponderance of the evidence that [the] warrantless search or seizure ‘fell
within one of the few well-delineated exceptions to the warrant requirement.’”
Ibid. (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)).
The exception at issue in this case is an investigative stop, a procedure
that involves a relatively brief detention by police during which a person’s
movement is restricted. See State v. Rosario, 229 N.J. 263, 272 (2017)
(describing an investigative stop as a police encounter during which an
objectively reasonable person would not feel free to leave). When police stop
a motor vehicle, the stop constitutes a seizure of persons, no matter how brie f
or limited. State v. Scriven, 226 N.J. 20, 33 (2016). An investigative stop or
detention, however, does not offend the Federal or State Constitution, and no
warrant is needed, “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. Rodriguez, 172 N.J. 117, 126 (2002)
(quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).
22
Although reasonable suspicion is a less demanding standard than
probable cause, “[n]either ‘inarticulate hunches’ nor an arresting officer’s
subjective good faith can justify infringement of a citizen’s constitutionally
guaranteed rights.” State v. Stovall, 170 N.J. 346, 372 (2002) (Coleman, J.,
concurring in part and dissenting in part) (quoting State v. Arthur, 149 N.J. 1,
7-8 (1997)); accord State v. Alessi, 240 N.J. 501, 518 (2020). Determining
whether reasonable and articulable suspicion exists for an investigatory stop is
a highly fact-intensive inquiry that demands evaluation of “the totality of
circumstances surrounding the police-citizen encounter, balancing the State’s
interest in effective law enforcement against the individual’s right to be
protected from unwarranted and/or overbearing police intrusions.” State v.
Privott, 203 N.J. 16, 25-26 (2010) (quoting State v. Davis, 104 N.J. 490, 504
(1986)).
In many cases, the reasonable suspicion inquiry begins with the
description police obtained regarding a person involved in criminal activity
and whether that information was sufficient to initiate an investigatory
detention. In State v. Shaw, this Court determined that the police lacked
reasonable suspicion to conduct an investigatory stop when law enforcement
arrived at a multi-unit apartment building to execute an arrest warrant for a
Black, male fugitive. 213 N.J. 398, 401, 403 (2012). There, the police saw the
23
defendant, also a Black male, exit the building with a friend and immediately
separate, seemingly because he saw the officers. Id. at 403. “[T]he only
features that [the testifying officer] could say that [the defendant] shared in
common with the targeted fugitive were that both were Black and both were
men.” Ibid. That commonality was insufficient to justify the stop, even in
conjunction with the officer’s belief that the two men split up to avoid police
attention. See id. at 411-12.
In State v. Caldwell, police acting on a tip from an informant conducted
an investigatory stop of the defendant based on a description that the
individual sought was a Black man standing in front of a building. 158 N.J.
452, 454-55 (1999). In invalidating the stop, this Court found that the
“description of the suspect . . . was clearly inadequate” and explained that
“police must have a sufficiently detailed description of the person to be able to
identify that person as the suspect named by the informant.” Id. at 460. The
Court concluded that “[w]ithout such a requirement, police could theoretically
conduct wide-ranging seizures on the basis of vague general descriptions.”
Ibid. The Court further noted that the tip lacked physical descriptors such as
“the individual’s height, weight, or the clothing he was wearing,” and it
included “no distinguishing characteristics that would have assisted [the
officer] in making a positive identification of the suspect.” Ibid.24
In his concurring opinion, Justice Handler pointed out that “[r]ace alone
is not a specific and articulable fact sufficient to establish the reasonable,
particularized suspicion needed for an investigatory stop of a defendant.
Adding gender to race does not augment the description of the suspect so that
he could fairly be picked out by officers intending to investigate.” Id. at 468(Handler, J., concurring). In Justice Handler’s view, the minimal description
that consisted simply of the race and sex of the individual was “descriptive of
nothing” in the constitutional context. Ibid.New Jersey courts, moreover, have noted that even inquiries or
investigative techniques that do not qualify as searches and seizures and
therefore do not require reasonable and articulable suspicion must still comport
with the Equal Protection Clause. See, e.g., State v. Maryland, 167 N.J. 471,
484 (2001) (“[T]he questioning of [a] defendant as part of a field inquiry is not
sustainable if the officers approached him and his companions solely because
of their race and age.”); State v. Segars, 172 N.J. 481, 493 (2002) (“[I]f race is
the sole motivation underlying the use of a M[obile] D[ata] T[erminal] [in
checking the status of a driver’s license], it is illegal . . . .”).
Indeed, in 2005, the Attorney General issued Law Enforcement Directive
2005-1, which established a statewide policy prohibiting the practice of
racially influenced policing. See Attorney General, Directive Establishing an
25
Official Statewide Policy Defining and Prohibiting the Practice of “Racially -
Influenced Policing” (June 28, 2005) (Directive 2005-1). The Directive
dictates that law enforcement officers are not to
consider a person’s race or ethnicity as a factor in
drawing an inference or conclusion that the person may
be involved in criminal activity, or as a factor in
exercising police discretion as to how to stop or
otherwise treat the person, except when responding to
a suspect-specific or investigation-specific “Be on the
lookout” (B.O.LO.) situation . . . .
The Directive further emphasizes that it does not prohibit officers “from taking
into account a person’s race or ethnicity when race or ethnicity is used to
describe physical characteristics that identify a particular individual . . . being
sought by a law enforcement agency in furtherance of a specific investigation
or prosecution.” Ibid.In addition to the race and sex of the suspect, our courts have considered
whether other factors such as nervous behavior, furtive movements, or other
actions form the basis for reasonable and articulable suspicion. Our
jurisprudence is well-settled that seemingly furtive movements, without more,
are insufficient to constitute reasonable and articulable suspicion. See
Rosario, 229 N.J. at 277 (“Nervousness and excited movements are common
responses to unanticipated encounters with police officers on the road . . . .”);
State v. Lund, 119 N.J. 35, 47 (1990) (“[M]ere furtive gestures of an occupant
26
of an automobile do not give rise to an articulable suspicion suggesting
criminal activity.” (quoting State v. Schlosser, 774 P.2d 1132, 1137 (Utah
1989))).
Similarly, when circumstances are not otherwise suspicious, “[a]
person’s failure to make eye contact with the police does not change that.”
State v. Stampone, 341 N.J. Super. 247, 252 (App. Div. 2001); see also United
States v. Foster, 824 F.3d 84, 93 (4th Cir. 2016) (noting that lack of eye
contact is an “ambiguous indicator” that “may still contribute to a finding of
reasonable suspicion” but that courts are “hesitant” to weigh heavily “because
it is no more likely to be an indicator of suspiciousness than a show of respect
and an attempt to avoid confrontation.” (quotation omitted)); United States v.
Hernandez-Alvarado, 891 F.2d 1414, 1419 n.6 (9th Cir. 1989) (“[A]voidance
of eye contact has been deemed an inappropriate factor to consider unless
special circumstances make innocent avoidance of eye contact improbable.”)
(alteration and quotation omitted); United States v. Smith, 799 F.2d 704, 707
(11th Cir. 1986) (finding the defendant-driver’s failure to look at a patrol car
to be “fully consistent with cautious driving” that “in no way gives rise to a
reasonable suspicion of illegal activity either alone or in combination with the
other circumstances surrounding the stop”).
27
In sum, the totality of the circumstances of the encounter must be
considered in a very fact-sensitive analysis to determine whether officers
objectively possessed reasonable and articulable suspicion to conduct an
investigatory stop. State v. Gamble, 218 N.J. 412, 431 (2014); Pineiro, 181
N.J. at 22.
V.
Applying those principles to the present case and taking into account the
totality of the circumstances, we do not find that the information Sergeant
Horan possessed at the time of the motor-vehicle stop constituted reasonable
and articulable suspicion.
Sergeant Horan testified that he “believe[d] that the entirety of the initial
dispatch” stated that there were “two suspects described as Black males, one
with a handgun.” Certainly, race and sex -- when taken together with other,
discrete factors -- can support reasonable and articulable suspicion. But here,
the initial description did not provide any additional physical descriptions such
as the suspects’ approximate heights, weights, ages, clothing worn, mode of
transportation, or any other identifying feature that would differentiate the two
Black male suspects from any other Black men in New Jersey. That vague
description, quite frankly, was “descriptive of nothing.” See Caldwell, 158
N.J. at 468 (Handler, J., concurring). If that description alone were sufficient
28
to allow police to conduct an investigatory stop of defendants’ vehicle, then
law enforcement officers would have been permitted to stop every Black man
within a reasonable radius of the robbery. Such a generic description that
encompasses each and every man belonging to a particular race cannot,
without more, meet the constitutional threshold of individualized reasonable
suspicion.
And the radio dispatch indicated that the store was robbed by two Black
men. Sergeant Horan testified that upon seeing three Black males in the
vehicle, he inferred that the third was the getaway driver. While Sergeant
Horan’s inference was reasonable, with the dearth of information available at
the time regarding the suspects, it could easily be argued that police would
have also been able to stop a single Black man in a car, or on foot, based on
the assumption that the robbery suspects split up after the crime. The reality is
that the ambiguous nature of the description could have resulted in Black men
in any configuration and using any mode of transportation being stopped
because the only descriptors of the suspects were race and sex.
Even Sergeant Horan testified that the only information he could
confirm based on the initial report was the race and sex of the vehicle’s
occupants during the following exchange with the prosecutor:
29
PROSECUTOR: And when you walked up, were you able
to confirm any other part of the description in regard to the
transmissions that you received from dispatch?
SERGEANT HORAN: Other than all three occupants being
male, Black and the clothing, there was nothing else to
confirm.
Although Sergeant Horan mentioned the clothing, he testified that as he
after executing the stop, “[a]n officer at the scene
approached the vehicle ----
relayed information that the suspects were wearing dark or black
clothing or jackets.” Information acquired after a stop cannot
retroactively serve as the basis for the stop. For constitutional purposes,
what matters is the information Horan possessed when he activated his
overhead lights and pulled the car over. At that point, as discussed, he
did not have a description of the clothing worn by the robbery suspects.
He also did not know that the car had been reported stolen. All he knew
was that the suspects were Black men.
That brings us to the other factors that the State argues contribute to a
finding of reasonable suspicion based on the totality of the circumstances.
Sergeant Horan testified that when he shined the spotlight on defendants’ car
and illuminated the interior, the three men did not react at all. He recalled
that, as he observed defendants for a second or two, “[a]ll three heads
remained straight ahead, focused on their path. No squinting, ducking,
30
shielding their eyes, which is, in my experience, uncommon.” The State
argued that Sergeant Horan’s use of his patrol car’s spotlight and defendants’
behavior in response is critical to our analysis. The State even conceded at
oral argument that without defendants’ non-reaction to the spotlight, it would
be very difficult to argue that reasonable suspicion existed prior to the stop .
As this Court and many other courts have recognized, nervous behavior
or lack of eye contact with police cannot drive the reasonable suspicion
analysis given the wide range of behavior exhibited by many different people
for varying reasons while in the presence of police. See Rosario, 229 N.J. at
277. In some cases, a defendant’s alarmed reaction is asserted as justification
for a stop, but in other cases, a defendant’s non-reaction is argued to form the
basis for reasonable suspicion. See, e.g., United States v. Escamilla, 560 F.2d
1229, 1233 (5th Cir. 1977) (explaining that the defendants’ decision not to
“acknowledge the officers’ presence” cannot play any role in reasonable
suspicion, in part because it would conflict with the court’s previous holding
that repeated glances at officers were suspicious and “would put the officers in
a classic ‘heads I win, tails you lose’ position”); cf. United States v. Sokolow,
490 U.S. 1, 13 (1989) (Marshall, J., dissenting) (noting that law enforcement
profiles of drug couriers have a “chameleon-like way of adapting to any
particular set of observations” (quotation omitted)). In short, whatever
31
individuals may do -- whether they do nothing, something, or anything in
between -- the behavior can be argued to be suspicious.
Thus, as with race and sex, a suspect’s conduct can be a factor, but when
the conduct in question is an ambiguous indicator of involvement in criminal
activity and subject to many different interpretations, that conduct cannot
alone form the basis for reasonable suspicion.
Even considering the closeness of Sergeant Horan’s encounter with
defendants in terms of spatial and temporal proximity to the robbery does not
add significantly to the analysis of whether the stop was lawful. Horan was
approximately three-quarters of a mile from the 7-Eleven when he spotted
defendants’ vehicle traveling away from the store and executed the stop. The
record is unclear as to precisely when the robbery occurred. Sergeant Horan
testified that he heard the radio dispatch regarding the robbery “just around
midnight” or “a quarter after midnight” when dispatch indicated that the
robbery “just happened.” Horan then testified that he encountered defendants’
vehicle approximately three minutes after receiving the dispatch.
The State argues that the timing of the robbery is clear because dispatch
used the term “just” in describing when the robbery occurred. Certainly, at
some point after the robbery someone in the 7-Eleven called 9-1-1, but we do
not know when that was in relation to when the robbery occurred and when
32
dispatch alerted police. In this case, a matter of minutes makes a difference
given the area in which the suspects could reasonably be expected to be after
the commission of the robbery. Again, proximity in terms of time and place
can certainly be factors in determining whether reasonable suspicion existed.
On this record, however, where the 7-Eleven was located on a roadway close
to a major interstate highway and the record is unclear as to when the robbery
actually occurred, the asserted proximity in time and place is not sufficient to
support the finding of reasonable suspicion.
Finally, we note that the non-specific and non-individualized factors
asserted here do not add up to a totality of circumstances analysis upon which
reasonable suspicion can be found. “Zero plus zero will always equal zero.
To conclude otherwise is to lend significance to ‘circumstances [which]
describe a very large category of presumably innocent travelers’ and subject
them to ‘virtually random seizures.’” State v. Morgan, 539 N.W.2d 887, 897
(Wis. 1995) (Abrahamson, J., dissenting) (alteration in original) (quoting Reid
v. Georgia, 448 U.S. 438, 441 (1980)).
In this case, Sergeant Horan, with his years of experience, had a hunch.
That, however, is not the standard. The information Horan possessed did not
amount to objectively reasonable and articulable suspicion, so the motion to
suppress should have been granted.
33
VI.
For the foregoing reasons, the decision in State v. Nyema is affirmed.
The decision in State v. Myers is reversed, Myers’s conviction is vacated, and
the matter is remanded to the trial court for further proceedings consistent with
this opinion.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE PIERRE-LOUIS’s
opinion.
34