STATE OF NEW JERSEY VS. PETER NYEMA (11-08-0833, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLFATE DIVISION
DOCKET NO. A-0891-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. November 5, 2020
APPELLATE DIVISION
PETER NYEMA, a/k/a
PETE DINAH, KAREEM
T. JEFFRIES, HNE NYEMA,
AND PETE NYME,
Defendant-Appellant.
________________________
Submitted September 22, 2020 – Decided November 5, 2020
Before Judges Fisher, Gilson and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 11-08-0833.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alyssa Aiello, Assistant Deputy Public
Defender, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Christian E. Fisher, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
GILSON, J.A.D.
Following the denial of his motion to suppress, defendant Peter Nyema
pled guilty to first-degree robbery, N.J.S.A. 2C:15-1. He was sentenced to
fifteen years in prison subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2. He appeals, challenging the denial of his motion to suppress physical
evidence seized without a warrant.
Police officers seized the evidence following an investigatory stop of an
automobile in which defendant was a passenger. The arresting officer testified
he stopped the car because he was advised two black men had robbed a store.
The officer used a spotlight mounted to his car to illuminate the interiors of
passing vehicles as he traveled to the store. In one car, he observed three black
men who did not react to the light. The officer stopped the car based on those
observations. We hold that these undisputed facts do not establish a reasonable
articulable suspicion that the men in the car had robbed the store. Accordingly,
we reverse defendant's conviction, vacate his sentence, and remand for further
proceedings.
I
The facts were developed at an evidentiary hearing on defendant's motion
to suppress. The court heard testimony from three witnesses: Sergeant Mark
Horan, the officer who stopped the car; defendant's father, who owned the car;
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and Detective William Mulryne, who received a report that the car had been
stolen.
Horan testified that on May 7, 2011, he was on patrol in a marked police
vehicle in Hamilton Township. Just after midnight, he received a dispatch
transmission that a 7-Eleven store had been robbed by two black males, one of
whom had a gun. A subsequent dispatch indicated the two men fled on foot.
Horan was familiar with the 7-Eleven store and responded.
When he was about three quarters of a mile away from the store, he saw a
vehicle traveling toward him, away from the store. He pointed his spotlight into
the vehicle and observed a male and female. Both reacted in a manner Horan
described as alarmed or annoyed. In particular, the driver attempted to shield
his eyes. Horan drove on and saw a second car traveling away from the store.
When shining his light into that car, he "observed three black males[.]" He stated
he "received no response from any of them that [he] could observe[.]" Horan
explained that they did not look at him; rather, they looked straight ahead.
Horan thought the men's non-reaction was "odd," and decided to stop the
car. Accordingly, he made a U-turn, activated the lights on his police vehicle,
and effectuated a stop of the car.
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As Horan approached the driver's side of the vehicle, two additional police
officers arrived in separate cars. An officer at the scene relayed that the robbery
suspects had been reported as "wearing dark or black clothing or jackets." The
officers approached the vehicle with their weapons drawn. They observed three
men in the car: a driver, a front-seat passenger, and a passenger in the back seat.
It was later determined that defendant was the front-seat passenger, co-
defendant James Myers was the back-seat passenger, and Tyrone Miller, a/k/a
Ajene Drew, was the driver.
While outside the vehicle, Horan observed dark jackets on the floor behind
the driver's seat. As Horan was speaking with the driver, he was contacted by
dispatch and informed the car had been reported stolen.
The officers ordered the three men out of the car and arrested them. Three
officers were on scene when the men were taken into custody. More officers
arrived as the incident progressed. Thereafter, Horan searched the interior of the
vehicle. In addition to the jackets, police found and seized a black balaclava, a
pair of knotted black panty hose, a white do-rag, black cloth gloves, a black knit
ski mask, a black fleece front-zip jacket, and a brown "Elite MMA" front-zip
hooded sweatshirt. The officers also searched for weapons, looking in the trunk
and under the hood of the vehicle. Under the hood, Horan observed a red
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bandana. After retrieving it, he found a gun wrapped inside. Each occupant of
the vehicle was also searched incident to their arrest, and cash was seized from
each of them. Defendant was found to have $303 in cash.
Defendant and co-defendants Myers and Miller were indicted for first-
degree robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20-3(a);
fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree
terroristic threats, N.J.S.A. 2C:12-3(a); second-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree possession of a
defaced firearm, N.J.S.A. 2C:39-3(d); and third-degree theft by receiving stolen
property, N.J.S.A. 2C:20-7(a). Defendant and Myers were also charged with
fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(b).
Defendant was separately charged with fourth-degree aggravated assault,
N.J.S.A. 2C:12-13.
Myers and defendant moved to suppress the physical evidence seized from
the car. In addition to Sergeant Horan, the court heard testimony from
defendant's father and Detective Mulryne. Defendant's father testified that he
owned the car in which defendant and the other co-defendants were traveling.
He stated the car had not been stolen on May 7, 2011, the date of the incident,
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and that he had not reported the car as stolen in the days prior to the stop. In
rebuttal, Detective Mulryne testified that on May 5, 2011, he received a report
that the vehicle had been stolen.
The trial court denied in part and granted in part defendant's motion to
suppress the physical evidence. The court first found that none of the defendants
had a reasonable expectation of privacy in the vehicle because it was stolen. The
court then found that the vehicle had been lawfully stopped because Horan had
a reasonable articulable suspicion that the men in the vehicle had robbed the 7-
Eleven. The court noted "the racial makeup of the occupants of the vehicle,
three black males traveling away from the scene was the reasonable and typical
suspicion for the officer to ultimately pull this car over." Thereafter, the court
found that the clothing seized from the interior of the vehicle was lawfully seized
under the plain view doctrine. Accordingly, the court denied that portion of
defendant's motion to suppress. The court granted the motion to suppress the
gun, concluding the gun had been unlawfully seized because it was taken from
under the hood without a warrant.
Following the denial of the motion to suppress, co-defendant Myers pled
guilty. Defendant proceeded to trial. After the State presented its evidence,
defendant negotiated a plea agreement. He pled guilty to first-degree robbery
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and the State agreed to dismiss all other charges. As previously noted, defendant
was then sentenced to fifteen years in prison subject to NERA.
II
Defendant appeals his conviction and sentence. 1 He contends that the trial
court erred in denying his motion to suppress. He argues that the vehicle was
illegally stopped and the search of the interior of the vehicle did not comply with
the plain view doctrine. Defendant also challenges his sentence, asserting it was
excessive because he was sentenced to three years longer than co-defendant
Myers. He articulates his arguments as follows:
POINT I – THE TRIAL COURT'S ORDER DENYING
SUPPRESSION OF THE CLOTHING MUST BE
REVERSED.
A. The Description Of The Suspects As "Two Black
Males" Who Fled On Foot Did Not Provide Police With
Reasonable And Particularized Suspicion To Justify
The Investigatory Stop Of Three Black Males Traveling
In A Car[.]
B. Even If The Car Stop Were Lawful, The Plain
View Exception To The Warrant Requirement Did Not
Justify The Warrantless Entry Into And Search Of The
Car[.]
1
The arrest took place in May 2011, defendant was indicted in August 2011,
and the motion to suppress was heard and decided in 2013. Defendant's trial
commenced in September 2017, and he pled guilty in October 2017. He was
sentenced on September 6, 2018. The briefing on this appeal was completed in
April 2020, after the parties were granted several extensions to file their papers.
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POINT II – THE MATTER MUST BE REMANDED
FOR THE TRIAL COURT TO RECONSIDER ITS
DECISION TO IMPOSE ON DEFENDANT A
PRISON TERM THAT WAS THREE YEARS
LONGER THAN THAT IMPOSED ON THE
CODEFENDANT, WHO WAS OLDER, MORE
CRIMINALLY MATURE AND UNDISPUTEDLY
MORE CULPABLE. ADDITIONALLY, BECAUSE
THE SCIENCE ON WHICH MILLER V. ALABAMA
[567 U.S. 460 (2012)] WAS BASED APPLIES WITH
EQUAL FORCE TO 20-YEAR-OLD OFFENDERS,
THE COURT SHOULD CONSIDER THE MILLER
YOUTH FACTORS IN DETERMINING HOW MUCH
WEIGHT AGGRAVATING FACTORS (3), (6) AND
(9) DESERVE AND WHETHER MITIGATING
FACTORS (4) AND (13) DESERVE MORE THAN
ONLY "PARTIAL WEIGHT."
We hold that the State failed to establish reasonable articulable suspicion
for stopping the motor vehicle. Accordingly, the subsequent seizure of the
physical evidence was unlawful. We therefore vacate defendant's conviction
and sentence and remand for further proceedings.
Appellate review of the denial of a motion to suppress physical evidence
following an evidentiary hearing is limited. Factual findings made by the trial
court will not be disturbed if they are supported by credible evidence in the
record. State v. Hagans, 233 N.J. 30, 37 (2018) (citing State v. Gamble, 218
N.J. 412, 424 (2014)). We review legal determinations, including the
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application of the law to undisputed facts, de novo, with no special deference.
Id. at 38 (citing Gamble, 218 N.J. at 425).
We first address the trial court's determination that defendant had no
reasonable expectation of privacy because he was stopped in a stolen car.
Notably, the State does not rely on that holding on this appeal. We reject that
basis for the court's determination because there was no evidence that the car
was stolen. At the evidentiary hearing, defendant's father testified without
rebuttal that the car belonged to him and that his son had not stolen the car on
or before the day of the stop. The only disputed issue was whether the father
reported the car as stolen, justifying the arrest of defendant and the co-
defendants. The State presented Detective Mulryne to testify that the car had
been reported as stolen. That testimony, however, did not establish that the car
had been stolen; rather, the testimony only addressed that the car had been
reported as stolen. Accordingly, there is no evidence in the record supporting
the finding that the car was stolen when it was stopped. Consequently,
defendant had a reasonable expectation of privacy while traveling in a car that
belonged to his father.
The United States Constitution and the New Jersey Constitution protect
individuals from "'unreasonable searches and seizures' by government officials."
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Ibid. (quoting State v. Watts, 223 N.J. 503, 513 (2015)). A warrantless search
is presumptively unreasonable. Ibid. To overcome that presumption, the State
must prove by a preponderance of the evidence that the search was based on
probable cause and fell "within one of the few well-delineated exceptions to the
warrant requirement." Id. at 38-39 (quoting State v. Bryant, 227 N.J. 60, 69-70
(2016)). One exception to the warrant requirement is an investigatory stop.
State v. Alessi, 240 N.J. 501, 517-18 (2020).
To lawfully stop a motor vehicle, "a police officer must have a reasonable
and articulable suspicion that the driver of a vehicle, or its occupants, is
committing a motor-vehicle violation or a criminal or disorderly persons
offense." State v. Scriven, 226 N.J. 20, 33-34 (2016) (citing State v. Locurto,
157 N.J. 463, 470 (1999)). Accordingly, an investigatory stop is permissible "if
it is based on specific and articulable facts which, taken together with rational
inferences from those facts, give rise to a reasonable suspicion of criminal
activity." State v. Chisum, 236 N.J. 530, 545-46 (2019) (quoting State v.
Pineiro, 181 N.J. 13, 20 (2004)).
"In determining the lawfulness of an investigatory stop, a reviewing court
must 'evaluate the totality of circumstances surrounding the police-citizen
encounter, balancing the State's interest in effective law enforcement against the
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individual's right to be protected from unwarranted [or] overbearing police
intrusions.'" Id. at 546 (quoting State v. Privott, 203 N.J. 16, 25-26 (2010)).
"An investigative detention that is premised on less than reasonable and
articulable suspicion is an 'unlawful seizure,' and evidence discovered during
the course of an unconstitutional detention is subject to the exclusionary rul e."
Ibid. (quoting State v. Elders, 192 N.J. 224, 247 (2007)). While reasonable
articulable suspicion is a lower standard than probable cause, "neither
inarticulate hunches nor an arresting officer's subjective good faith can justify
infringement of a citizen's constitutionally guaranteed rights." Alessi, 240 N.J.
at 518 (first citing State v. Stovall, 170 N.J. 346, 356 (2002); and then quoting
State v. Arthur, 149 N.J. 1, 8 (1997)).
Sergeant Horan testified he stopped the vehicle based on three pieces of
information: (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. Horan acknowledged that the vehicle was not speeding. Indeed, he did
not testify that he stopped the vehicle for any motor vehicle infraction.
Consequently, it was undisputed that Horan stopped the car in connection with
the robbery of the 7-Eleven.
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The question is whether, under the totality of the circumstances , Horan
had a reasonable articulable suspicion that the three men in the vehicle had just
robbed the 7-Eleven. The men's non-reaction to the light does not add much to
a reasonable articulable suspicion. Horan acknowledged that when he pointed
his spotlight into defendant's car, he observed the three men for only one or two
seconds while he was driving by in the opposite direction. Consequently, Horan
really only had two pieces of information: (1) the 7-Eleven had been robbed by
two black men who fled on foot; and (2) a vehicle with three black men was
driving away from the 7-Eleven sometime after the robbery had been reported.
That information articulates a hunch, but it does not articulate reasonable
suspicion that the three men robbed the 7-Eleven. Horan had no physical
description of the suspects at the time he made the stop. Indeed, Ho ran only
learned that the suspects had reportedly worn dark clothing after he made the
stop. Horan also had no description of a vehicle. In that regard, Horan testified
that he had been told that the suspects had fled on foot and he used his general
experience to assume that they may have run to a getaway car.
The record also does not establish how much time passed between when
the robbery occurred and the car was stopped. On cross-examination, Horan
estimated that it took him between one to two minutes to travel to the location
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where he saw the car with three black men. The State did not, however, submit
evidence establishing how much time passed between when the robbery
occurred and when the car was stopped. Without information on whether the
robbery was reported five minutes or an hour earlier, the State leaves us to
speculate on whether Horan had a reasonable basis to assume the perpetrators
were still in the area.
Obviously, Horan's hunch was correct because defendant ultimately pled
guilty. The hunch, however, was still not reasonable articulable suspicion for
stopping a vehicle. To accept that proposition 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. That proposition would also mean that if a
store was robbed by two white females, the police would have reasonable
articulable suspicion to stop all cars containing white females within a three-
quarters-of-a mile radius of the store. Knowledge of the race and gender of
criminal suspects, without more, is insufficient suspicion to effectuate a seizure.
See State v. Shaw, 213 N.J. 398, 421 (2012) ("A random stop based on nothing
more than a non-particularized racial description of the person sought is
especially subject to abuse.").
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In summary, the undisputed suspicions articulated by Horan do not
constitute reasonable suspicion to believe that the three men in the vehicle had
just robbed the 7-Eleven. Accordingly, all the subsequent searches and seizures
were illegal, and all the physical evidence seized should have been suppressed.
Given our ruling on the stop, we need not address the plain view and sentencing
issues. Instead, defendant's conviction and sentence are vacated, and the matter
is remanded for further proceedings.
Reversed and vacated. We do not retain jurisdiction.
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