                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NOS. A-2122-16T4
                                                                     A-2436-16T4
                                                                     A-4645-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RICKEY L. BARLEY, a/k/a
RICKEY BARCLAY,

          Defendant-Appellant.


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JUAN K. DUNLAP,

          Defendant-Appellant.


STATE OF NEW JERSEY,

          Plaintiff-Respondent,
v.
RICKEY L. BARLEY, a/k/a
RICKEY BARCLAY,

    Defendant-Appellant.


         Argued March 9, 2020 – Decided April 3, 2020

         Before Judges Sabatino, Geiger and Natali.

         On appeal from the Superior Court of New Jersey, Law
         Division, Middlesex County, Indictment Nos. 14-04-
         0383 and 15-01-0078.

         Jack L. Weinberg, Designated Counsel, argued the
         cause for appellant Rickey L. Barley (Joseph E.
         Krakora, Public Defender, attorney; Jack L. Weinberg,
         on the briefs).

         Steven William Kirsch, Designated Counsel, argued the
         cause for appellant Juan K. Dunlap (Joseph E. Krakora,
         Public Defender, attorney; Steven William Kirsch and
         Tamar Yael Lerer, Assistant Deputy Public Defender,
         of counsel and on the briefs).

         Patrick F. Galdieri, II, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued the cause
         for respondent (Christopher L.C. Kuberiet, Acting
         Middlesex County Prosecutor, attorney; Susan Lynn
         Berkow, Special Deputy Attorney General/Acting
         Assistant Prosecutor, of counsel and on the briefs in A-
         2122-16 and A-2436-16; Patrick F. Galdieri, II, of
         counsel and on the brief in A-4645-17).

PER CURIAM



                                                                    A-2122-16T4
                                    2
      This case arises out of a home invasion in which three masked men forced

their way into an apartment, held the occupants at gunpoint, and then fled from

the premises without taking anything. Within about two minutes after the

incident was reported through 9-1-1, two police officers observed defendants

Juan Dunlap and Rickey Barley, along with a third man, sitting in a car parked

a block away from the victims' apartment. Believing that the three men were

the same ones who had just committed the attempted armed robbery, the officers

swiftly apprehended and arrested the men without a warrant.

      In the course of their investigation, the police found a black handgun on

the passenger side floor of the car, plus other incriminating items inside,

including ski masks and a backpack. In addition, a silver handgun fell out of

Dunlap's waistband after he was handcuffed.       The victims were unable to

identify the three arrested men as their perpetrators. No forensic evidence tied

them to the crime scene.

      Defendants were charged with armed robbery, burglary, conspiracy, and

various weapons offenses. They moved before trial to suppress the fruits of the

warrantless search and seizure. Following a suppression hearing, the motion

judge found the officers' actions constitutional, determining that they had

reasonable suspicion to stop the car and probable cause to arrest the men.


                                                                        A-2122-16T4
                                       3
      After the backseat passenger co-defendant was severed from the case, the

case proceeded to a jury trial against Dunlap and Barley. The State's key proofs

were the items seized from the car. Defendants were found guilty of all charges.

In addition, at a separate later trial, Barley was found guilty of a "certain

persons" weapons offense.      The court imposed lengthy sentences on bot h

defendants.

      In these back-to-back appeals, which we consolidate for purposes of this

opinion, defendants principally argue that the trial court incorrectly ruled the

warrantless stop and ensuing arrest and search were constitutional. They further

contend: the jury should have been charged on identification; the jury should

have been instructed on attempted robbery and received a fuller explanation of

the elements of theft; the jury should have been charged on vicarious liability;

the court should have provided a limiting instruction with respect to the evidence

of the silver gun; the court should have granted defendants' motions for acquittal

and a new trial; the prosecutor made improper comments in summation; the jury

charge and verdict sheet were defective in allowing non-unanimous votes on

certain elements; and the consecutive sentences imposed were unjustified and

excessive.




                                                                          A-2122-16T4
                                        4
      For the reasons that follow, we reverse defendants' convictions because

the court should have granted their pretrial suppression motion. In particular,

we hold the State failed to establish that the officers had probable cause to

forcibly remove defendants from their vehicle at gunpoint and immediately

handcuff them on the ground without a warrant. Because the evidence seized

from the vehicle was tainted by the officers' unconstitutional actions, defendants'

convictions based on that evidence must be vacated.

                                         I.

      The Home Invasion1

      On January 4, 2014, a female tenant, her adult daughter, and the daughter's

two-year-old son were in the tenant's basement apartment on Louis Street in

New Brunswick.2 Shortly before 7:30 p.m., there was a knock at the door. When

the tenant asked twice who was outside but received no answer, she opened the

door. Three men, the tallest of whom was carrying a silver handgun, pushed

inside.



1
  We describe the facts with the benefit of the testimony that emerged at trial.
However, in evaluating the search-and-seizure issues, we confine our analysis
to the evidence that emerged at the pretrial suppression hearing.
2
  Although the record is not impounded, we discern no reason to mention the
victims' names in this opinion, as their identities are not germane to our analysis.
                                                                            A-2122-16T4
                                         5
      At trial, the tenant and her daughter said that the intruders were all African

American men whose masks covered their faces except the skin around their

eyes and noses. The man with the gun was about six feet tall, and the tenant

said he had a long nose. She said he was wearing a jacket and a black or gray

"sweater[] for the cold." The tenant testified that all three men were wearing

gray or black clothing and had winter hats on. The daughter said one man was

carrying a dark gray or black "book bag" or backpack.

      The tallest man pushed the tenant into the kitchen and against the stove,

pressing the gun into her face hard enough to leave a mark. He then shoved her

into the living room, where the daughter and her son were sitting on the couch.

The man pointed the gun at all three victims.

      According to the tenant and her daughter, the man with the gun went to

stand by the apartment door, the man with the backpack stayed in the living

room to watch the victims, and the third man went into a bedroom. The man in

the bedroom tilted a chair over and checked around the room, opening drawers

and looking through clothes. However, he did not take anything.

      The daughter asked what the men were looking for and the man with the

backpack told her to shut up. When the daughter pulled out her cell phone and

tried to call 9-1-1, he said, "Puta, pass me your cellular phone, you bitch." He


                                                                            A-2122-16T4
                                         6
did nothing when she refused. The daughter continued to ask what the three

intruders wanted, and the gunman became angry.

      When the third man came out of the bedroom, all three intruders ran out

of the apartment. The daughter immediately called 9-1-1 and described the

incident. Police arrived at the apartment within two minutes. According to the

daughter, the incident had lasted less than five minutes. The tenant and her

daughter found that the perpetrators had taken nothing, despite there being

jewelry and money present.

      The Police Response and Search and Seizure

      At approximately 7:25 p.m. that night, while patrolling the area of Louis

Street in their marked car, Officers Jeffrey Monticello and Carlos Adorno of the

New Brunswick Police Department received a dispatch reporting the home

invasion. The dispatch advised that three men had entered a residence; the

tallest of the three had a handgun; one was carrying a book bag; and they had

fled toward Somerset Street on Louis Street. The initial dispatch did not state

the race of the intruders.

      The officers took about one minute to arrive at the intersection of

Somerset and Louis Streets. There was snow on the ground. According to the




                                                                        A-2122-16T4
                                       7
officers, they didn't see anyone walking around, and vehicle traffic in the area

was "light."3

      Monticello turned off all his car's lights and sirens and drove slowly

through the intersection. He briefly looked toward a nearby vehicle with a single

occupant. According to Monticello, Adorno then told him, "I got three black

males slouching down in a car over here." Adorno indicated a Hyundai parked

on the northern side of Somerset Street. This location was within a block of the

victims' apartment. The record indicates it was about eighty yards away.

       Contrary to Monticello, Adorno testified at the suppression hearing that

he did not mention the car occupants' race to Monticello.           Later at trial,

Monticello amended his testimony from the suppression hearing, and

acknowledged that Adorno did not say to him the men were African American.

      According to Adorno, as the officers' car passed the Hyundai, he thought

the man in the driver's seat tried to hide his face by "sit[ting] all the way back"

in his seat. He testified that the driver seemed nervous and avoided eye contact

with him. Adorno saw the driver briefly shift the Hyundai into reverse, move

"a few inches," and stop again.



3
  A police video taken shortly after the defendants were stopped show numerous
vehicles parked on the sides of the local streets in the area.
                                                                           A-2122-16T4
                                        8
      Monticello parked the police vehicle parallel to and slightly ahead of the

Hyundai. He went toward the back of the Hyundai while Adorno went to the

front. According to the officers, because they were dealing with "a possible

threat involving weapons," they drew their weapons while approaching the

Hyundai.

      Monticello saw three men sitting in the car. According to Monticello, the

two men in the front seats, later identified as Dunlap and Barley, appeared

nervous and startled by the officers' approach. Meanwhile, the man in the back

seat, later identified as Donte Crumidy, was "very nonchalant." Monticello said

he found the difference among the three men's reactions to be "an additional key

[i]nto what was going on."

      The officers ordered the three men to put their hands up. According to

Monticello, Crumidy "just kind of complied," but lit a cigarette while doing so.

Barley, who appeared surprised, turned toward Monticello and put his hands up

as well.

      The driver of the Hyundai, Dunlap, did not immediately comply with the

order to put his hands up. Instead, Dunlap gripped the steering wheel tightly

and shouted, "No, no, no, no!" After repeated orders, Dunlap lifted and lowered

his hands in a "raising the roof" motion while continuing to yell. Monticello


                                                                        A-2122-16T4
                                       9
testified that Dunlap then raised only his left hand, while moving his right hand

toward his waist.

      While this was going on, Monticello looked into the Hyundai and saw a

black bag on the floor behind the driver's seat. Monticello testified that because

the initial dispatch had mentioned a book bag, he felt this "kind of started adding

to the totality of the circumstances."

      At that point, Monticello saw the emergency lights of other officers

arriving at the scene and decided that he and Adorno were no longer

outnumbered by the men in the car. Monticello testified that because of Dunlap's

noncompliance with the order to raise his hands, he then opened the driver's door

of the Hyundai, grabbed Dunlap, and pulled him out. Barley opened the front

passenger door and began to get out. Adorno took Barley to the sidewalk to

prevent his escape. One of the officers who had just arrived, Gregory Liszczak,

pulled Crumidy from the car. All three men were immediately laid face down

on the ground and handcuffed.

      Adorno used a flashlight to inspect the Hyundai's interior through the front

passenger door. He observed a black handgun on the floor of the front passenger

side of the car and informed the other officers. Monticello then called for




                                                                           A-2122-16T4
                                         10
detectives from the Police Department's major crimes and identification units to

document and preserve any evidence inside the car.

      According to Monticello, as the officers prepared to remove the three men

from the scene, he saw Dunlap try to make a motion toward his waist.

Monticello rolled him over onto his back. Adorno then saw a silver handgun

fall from Dunlap's waistband. He kicked it away from Dunlap toward other

officers standing nearby. Liszczak remarked that the gun "came out of his

[Dunlap's] pant[s]," and retrieved it from the ground. Crumidy, who was on the

ground next to Dunlap, stated, "That [gun] didn't come out of mine," and "I

didn't even know what was going on." Meanwhile, Dunlap screamed and cried.

A pat-down search of Barley revealed no weapons or other evidence.

      An estimated five minutes and forty-four seconds after Monticello and

Adorno received the initial dispatch, and after defendants were removed from

the Hyundai, a second dispatch was issued. This dispatch relayed the victim's

report that the three home invaders had been wearing masks and dark clothing.

      The officers acknowledged that Crumidy was dressed entirely in light-

colored outerwear. Dunlap was wearing a gray hooded zip-up sweatshirt, a

black long-sleeved thermal shirt, dark colored pants, a navy blue knit hat, a black




                                                                           A-2122-16T4
                                       11
wave cap, and black shoes. Barley was wearing jeans, a dark gray zippered

shirt, and black shoes.

       Events at the Police Station

       Following their arrest, Barley, Dunlap, and Crumidy were taken to the

police station. Meanwhile, at about 8:00 p.m., Detective Michael Savoth arrived

at the scene of the arrest and took several photographs of the Hyundai's interior

through its windows. Among other things, these photos showed: the black

handgun protruding from under the front passenger seat; a hooded black and

dark gray fleece sweatshirt on the front floor near the gun; and a black book bag

and other clothing items in the backseat area.

       Detective Raymond Quick administered Miranda 4 warnings to Dunlap,

who said he wanted to speak with Quick. Dunlap also signed a consent form

allowing officers to search the Hyundai, which had by that time been towed to

the police station.

       The Consensual Search of the Hyundai

       The Hyundai was searched with Dunlap present. Within the car, officers

found two black ski masks, a black ski hood, a gray sweatshirt, black gloves, a




4
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-2122-16T4
                                      12
dark brown winter coat, and a black book bag. The items were confiscated as

evidence.

      Detective Savoth testified that at the time of the search, the black handgun

had already been removed from the car. Monticello testified that he wrote in a

report that he removed the gun after the car arrived at the police station, "in

order to not leave a weapon unsecured." Monticello gave Savoth that black gun

and also the silver gun retrieved from the ground near Dunlap.

      Additional Facts Adduced at Trial

      No usable fingerprints were retrieved from either of the guns found in the

car and at the arrest scene.     Police found no fingerprints at the victims'

apartment. They found no footprints inside or outside the home, and no other

forensic evidence. Monticello admitted on cross-examination that there were "a

lot of side streets off Louis Street" and that a person fleeing on foot from the

victims' home could have gone down any of them or into a nearby home.

      Police did not ask the tenant or her daughter to identify defendants as the

perpetrators in any show-up, line-up, photographic line-up, or voice-

identification proceeding. They were not asked to identify defendants at trial.

The daughter said that the backpack found in the Hyundai looked like the one




                                                                          A-2122-16T4
                                      13
carried by one of the home intruders, but admitted that she did not know for sure

that it was the same bag.

      The parties stipulated that neither Barley nor Dunlap had applied for or

been issued permits to purchase or carry a handgun or a firearm purchaser

identification card.

      Suppression Hearing and Ruling

      Defendants moved to suppress the items seized by the police without a

warrant. The court conducted a two-day suppression hearing, at which Officers

Adorno, Monticello and several other officers testified. Upon considering their

testimony, the motion judge concluded in a written decision that the police had

an "objectively reasonable suspicion to perform a valid investigatory stop and

protective search" of defendants and the Hyundai.

      Among other things, the motion judge listed the following facts and

circumstances, some of which (as we will discuss in Part II, infra) preceded

defendants' arrests and others which are post-arrest:

            (1) a dispatch call advised the officers that three males
            entered a residence, with one at least possessing a
            weapon, and they fled, (2) less than two minutes after
            the dispatch call and only a block away from where the
            victim advised that the suspects had fled, one of the




                                                                         A-2122-16T4
                                      14
            investigating officers saw three males slouching[ 5 ]
            down in a vehicle in the area towards which the victim
            advised the suspects had fled, (3) the driver of [the]
            vehicle attempted to conceal his body and face with the
            frame of the vehicle and avoided eye contact when
            approached by the officers, (4) two of the defendants
            appeared to be nervous and startled and the other acted
            overly calm and nonchalant, (5) Defendant Barley,
            without authorization of the officers[,] attempted to
            open the passenger door, (6) when ordered to put his
            hands up, defendant Dunlap was non-compliant in that
            he kept moving his hands up and down and made a
            deliberate movement towards his waist, (7) Defendant
            Dunlap made a motion to put the car in reverse, (8)
            when being handcuffed, a handgun fell from Defendant
            Dunlap's waistband, (9) and a black and silver handgun
            was found in plain view in the vehicle.[6]

      The judge acknowledged that, under applicable law, defendants'

nervousness or furtive gestures, taken alone, [were] not enough to establish a

sufficient basis for an investigatory stop." Even so, the judge concluded the

record provided "ample" additional facts which, "taken together," formed the

basis for "the officers' particularized suspicion."

      Among those facts underscored by the judge were the officers'

"knowledge and experience," and the "location of defendants in close proximity


5
  As we will discuss, infra, the officers' testimony was that only the driver
appeared to be slouching.
6
  Items (8) and (9) in this listing occurred after defendants were under arrest
and thus cannot be relied upon to justify the initial investigatory stop.
                                                                       A-2122-16T4
                                        15
to the area where the victim indicated the suspects had fled in less than two

minutes after the 9-1-1 call. The judge ruled that "based on the totality of these

circumstances," there was "substantial credible evidence" which gave rise to "a

reasonable and articulable suspicion that the defendants were engaged in

criminal activity, armed and dangerous."

      The judge further concluded that "a subsequent search of the defendants'

persons was valid." The judge found that the officers' actions were justified "for

the protection of the public safety," and "their own safety."

      Alternatively, the judge also found the search of the defendants' person

"could also be constitutionally sustained as a search incident to a lawful arrest."

The judge ruled that "defendants were lawfully arrested due to the totality of the

circumstances," and that the officers' search did not exceed the constitutionally

permissible area" for a search incident to an arrest. The judge reasoned that

once the silver handgun fell from Dunlap's waistband "by his own actions," that

particular weapon was "lawfully seized" and it was reasonable for the office rs

thereafter to pat defendants down to remove any other possible weapons.

      Additionally, the judge found that after defendants were handcuffed, the

black gun was discovered in the car in plain view. The judge reasoned that

defendants "did not have a legitimate expectation of privacy shielding that


                                                                           A-2122-16T4
                                       16
portion of the interior of the vehicle, which was lawfully viewed from outside"

by Adorno.

        Finally, the judge found that Dunlap had voluntarily consented to the full

search of the car, which yielded the bookbag and clothing. The judge found that

a discrepancy between the times stated on the consent form and another police

report was "nothing more than a clerical error," based on Quick's testimony that

the time shown on the form was the time the search occurred, not the time that

Dunlap signed it.

        Trial and Verdict

        The case against Dunlap and Barley was jointly tried before a jury over

several days in May and June of 2016. 7 The jury found defendants guilty of all

counts charged.

        Specifically, both Barley and Dunlap were convicted of conspiracy,

N.J.S.A. 2C:15-1(a)(2) (counts two and three); burglary, N.J.S.A. 2C:18-2

(counts four and five); unlawful possession of a weapon, N.J.S.A. 2C:39 -5(b)

(counts six and seven); and possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (counts nine and ten). Dunlap was convicted of aggravated




7
    A different judge presided over the trial.
                                                                          A-2122-16T4
                                         17
assault, N.J.S.A. 2C:12-1(b)(4) (count eight).         The Court denied both

defendants' motions for acquittal and Barley's motion for a new trial.

      Sentencing

      The court sentenced Barley to an extended term of twenty-five years with

an eighty-five percent parole disqualifier for robbery; eight years with an eighty-

five percent parole disqualifier for burglary; and five years with a three -and-a-

half-year parole disqualifier for each of the two counts of unlawful possession

of a weapon. All other counts merged. The burglary and robbery sentences

were to run consecutively to one another, and the two weapons possession

sentences were to run concurrently to each other but consecutively to the others.

      The court sentenced Dunlap to eighteen years with an eighty-five percent

parole disqualifier for robbery; nine years with an eighty-five percent parole

disqualifier for burglary; five years with a three-and-a-half-year parole

disqualifier for unlawful possession of a weapon; and eighteen months for

aggravated assault. All other counts merged. As with Barley, the burglary

sentence was made consecutive to the robbery. The sentences for the weapons

possession and assault convictions were likewise to run concurrent to each other

but consecutive to the others.




                                                                           A-2122-16T4
                                       18
      Barley's "Certain Persons" Conviction

      In August 2017, Barley was tried separately before another judge and a

new jury on the "certain persons not to have weapons charge." Again, the State's

case included the evidence seized after the warrantless police stop and search,

including the black gun. The jury found Barley guilty. The court sentenced

Barley on this offense to ten years with a five-year period of parole ineligibility,

to run consecutively to his sentences from the first trial.

      The Present Appeals

      Barley appealed his convictions from both the first trial (A-2122-16) and

the second trial (A-4645-17). Dunlap appealed his own conviction (A-2436-

16). Both defendants include in their respective appeals a challenge to the

motion judge's suppression ruling, arguing the police acted unconstitutionally

without a warrant. In addition, defendants raise several other arguments, most

of which they present in common. Specifically, they raise the following points

in their main briefs, which we present in a slightly reorganized and rephrased

manner:

            Common to A-2122-16, A-2436-16, and A-4645-17

            I.     WHETHER THE TRIAL COURT ERRED BY
                   DENYING THE MOTION TO SUPPRESS
                   (Barley's point I in both of his appeals, Dunlap's
                   point I).

                                                                            A-2122-16T4
                                        19
Common to A-2122-16 and A-2436-16

II.    WHETHER THE COURT ERRED BY FAILING
       TO INSTRUCT ON IDENTIFICATION
       (Barley's point II, Dunlap's point III, not raised
       below).

III.   WHETHER THE COURT ERRED BY FAILING
       TO INSTRUCT ON ATTEMPT (Barley's point
       II, Dunlap's point II.A, not raised below).

IV.    WHETHER THE COURT ERRED BY FAILING
       TO INSTRUCT ON VICARIOUS LIABILITY
       (Barley's point IV, Dunlap's point II.B, not raised
       below).

V.     WHETHER    THE      SENTENCES        WERE
       EXCESSIVE (Barley's point VI, Dunlap's point
       IV).

A-2122-16

VI.    WHETHER THE COURT ERRED BY
       DENYING BARLEY'S MOTIONS FOR
       ACQUITTAL AND A NEW TRIAL (Barley's
       point V).

A-4645-17

VII. WHETHER      THE     PROSECUTOR
     COMMITTED MISCONDUCT (Barley's point
     II).

VIII. WHETHER THE COURT ERRED BY NOT
      ISSUING A LIMITING INSTRUCTION
      REGARDING THE GUN RETRIEVED FROM


                                                             A-2122-16T4
                           20
                   DUNLAP (Barley's point III, not raised below).

            IX.    WHETHER     THE       SENTENCE                WAS
                   EXCESSIVE (Barley's point IV).

      Additionally, after new counsel for Dunlap was substituted for the

appellate oral argument because of scheduling issues, Dunlap filed with leave

of court a supplemental brief raising one more issue:

            THE JURY INSTRUCTIONS AND VERDICT SHEET
            IMPROPERLY ALLOWED THE JURY TO RETURN
            NON-UNANIMOUS VERDICTS REGARDING THE
            IDENTITY OF THE SPECIFIC VICTIM FOR
            CERTAIN COUNTS AS WELL AS THE IDENTITY
            OF THE CRIME WHICH WAS THE OBJECT OF
            THE CONSPIRACY IN COUNT ONE, THEREBY
            REQUIRING REVERSAL OF THE CONVICTIONS
            FOR CONSPIRACY, ROBBERY, POINTING A
            FIREARM,    AND   POSSESSION      FOR AN
            UNLAWFUL PURPOSE (not raised below).

By letter, counsel for Barley joined in this added point.

                                        II.

      We focus our discussion on what turns out to be the pivotal issue in these

appeals: the constitutionality of the police officers' warrantless stop, arrest, and

seizure of evidence.

      In undertaking this review, we must defer to the trial court's factual

findings from the suppression hearing, so long as they are supported by

sufficient credible evidence in the record. State v. Nelson, 237 N.J. 540, 551

                                                                            A-2122-16T4
                                        21
(2019). By contrast, the trial court's interpretation of the law and the legal

"consequences that flow from the established facts" are reviewed de novo. State

v. Gamble, 218 N.J. 412, 425 (2014).

      As we have previewed above, there are essentially two critical phases of

the search-and-seizure analysis in this case: (1) whether the officers performed

a valid warrantless "investigatory stop" of defendants supported by reasonable

suspicion; and (2) whether the officers thereafter conducted a valid warrantless

arrest of defendants, and an incidental search of their persons and the car,

supported by probable cause. These two recognized exceptions to the warrant

requirement are delineated by well-established legal principles and fact-

sensitive illustrative case law.

                                       A.

      Under the Fourth Amendment of the United States Constitution, a person

"may not be detained even momentarily without reasonable, objective grounds

for doing so." Florida v. Royer, 460 U.S. 491, 498 (1983). Similar protections

apply under the New Jersey Constitution. See State v. Rosario, 229 N.J. 263,

271 (2017).

      If an encounter with police does not involve a "detention" or "seizure," an

individual's constitutional rights have not been infringed. Royer, 460 U.S. at


                                                                         A-2122-16T4
                                       22
498.   For example, "mere police questioning" in a public place "does not

constitute a seizure" requiring possible suspicion or probable cause under the

Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434 (1991) (citing Terry

v. Ohio, 392 U.S. 1, 19 (1968)).

       Some circumstances that may indicate a seizure are "the threatening

presence of several officers, the display of a weapon . . . some physical touching

of the person . . . or the use of language or tone of voice indicating that

compliance with the officer's request might be compelled." United States v.

Mendenhall, 446 U.S. 544, 554 (1980). New Jersey courts have also held that

an objectively reasonable person would not feel free to leave an encounter when

a police officer parks a patrol vehicle near his or her car in a manner that

prevents the car from exiting. As the Court discussed in Rosario, 229 N.J. at

273:

            A person sitting in a lawfully parked car outside her
            home who suddenly finds herself blocked in by a patrol
            car that shines a flood light into the vehicle, only to
            have the officer exit his marked car and approach the
            driver's side of the vehicle, would not reasonably feel
            free to leave. That conclusion is consistent with
            ordinary notions of how a reasonable person responds
            to a demonstration of police authority.              See
            Rodriguez, [] 172 N.J. 117, 129 [(2002)] (“[A]s a
            practical matter, citizens almost never feel free to end
            an encounter initiated by the police.”). Rather, such
            police activity reasonably would, and should, prompt a

                                                                          A-2122-16T4
                                       23
            person to think that she must stay put and submit to
            whatever interaction with the police officer was about
            to come.

                                  1.

      A Seizure Occurred

      It is readily apparent in the present case that a "seizure" or "stop" occurred

when the officers encountered defendants. They parked their police vehicle in

a spot that would impede defendants from driving forward. In addition, there

was "the threatening presence of several officers" and "the display of weapons."

Mendenhall, 446 U.S. at 554.           Officers Monticello and Adorno seized

defendants when they drew their weapons, approached the Hyundai, and ordered

the three men to put their hands up. Monticello testified that "initially . . . as

soon as [the officers] made contact with" defendants, "they were not free to

leave" and "were detained."

      The State does not contend that the officers approached the Hyundai in a

less intrusive manner that would comprise a mere "field inquiry" to ascertain

who defendants were and why they were there. 8 In fact, the situation here in



8
  See State v. Pineiro, 181 N.J. 13, 20 (2004) (citing State v. Nishina, 175 N.J.
502, 510 (2003)) (defining a field inquiry as "the least intrusive encounter . . .
when a police officer approaches a person and asks if [he or she] is willing to
answer some questions).
                                                                            A-2122-16T4
                                        24
responding to a fresh report of an attempted armed robbery nearby made it too

dangerous to undertake such a cordial inquiry. The State maintains, and we

agree, that it was sensible under the circumstances for the officers to approach

the Hyundai with their guns drawn for their safety.

      Given that a seizure or investigatory stop was occurring when the officers

first approached the car, the critical analytic question then becomes whether that

warrantless police action was supported by reasonable suspicion.

      The Reasonable Suspicion Requirement

      The United States Supreme Court has held that "certain seizures are

justifiable . . . if there is articulable suspicion that a person has committed or is

about to commit a crime." Royer, 460 U.S. at 498. New Jersey courts have

clarified that an "investigatory detention" is "permissible 'if it is based on

specific and articulable facts which, taken together with rational inferences from

those facts, give rise to a reasonable suspicion of criminal activity.'" State v.

Chisum, 236 N.J. 530, 545-46 (2019) (quoting Pineiro, 181 N.J. at 20). Such a

stop "may not be based on arbitrary police practices, the officer's subjective

good faith, or a mere hunch." State v. Coles, 218 N.J. 322, 343 (2014). If there

was no reasonable suspicion, evidence discovered during a search conducted

during the detention must be excluded. Chisum, 236 N.J. at 546. The State


                                                                             A-2122-16T4
                                        25
bears the burden to prove that a warrantless stop was valid. State v. Atwood,

232 N.J. 433, 444 (2018).

      To determine whether reasonable suspicion existed, a court must consider

the totality of the circumstances, viewing the "whole picture" rather than taking

each fact in isolation. Nelson, 237 N.J. at 554-55. This analysis may also

consider police officers' "background and training," including their ability to

"make inferences from and deductions about the cumulative information

available to them that might well elude an untrained person." Id. at 555 (quoting

United States v. Arvizu, 534 U.S. 266, 273 (2002)). Additionally, "police may

rely on behavior that is consistent with innocence as well as guilt in finding

reasonable and articulable suspicion to conduct an investigatory stop." Pineiro,

181 N.J. at 25.

      Generic Descriptions on Police Dispatches

      As we have noted, the stop in this case was prompted by a police dispatch.

The dispatch merely identified the intruders as three males, one of whom was

taller than the others, wearing masks and dark clothing. Our courts have held

that an individual's similarity to a very general description given in a dispatch

or warrant does not by itself justify an investigative detention, because it does

not give rise to a sufficiently particularized suspicion that the person is or has


                                                                          A-2122-16T4
                                       26
engaged in criminal activity. See State v. Shaw, 213 N.J. 398, 401-11 (2012)

(affirming reversal of trial court's denial of motion to suppress evidence seized

during stop, where defendant's only similarity to fugitive police sought was that

he was "a black male"); State v. Caldwell, 158 N.J. 452 (1999) (reversing denial

of suppression where only information officer had was that suspect was a black

male at a certain address).

      In a case having some similarity to the present case, State v. Stampone,

341 N.J. Super. 247, 249-52 (App. Div. 2001), an officer looking for a burglar

had no description of the perpetrator, but approached the defendant as he sat in

his parked car near the crime scene, demanded to see identification, argued with

him when he refused to comply, then arrested him. We stated that "[a] car

parked on a residential street at 5:00 p.m., occupied by a person with no unusual

personal characteristics, is not suspicious." Id. at 252.

      Furtive Movement and Nervousness

      The officers' suppression hearing testimony in the present case

highlighted allegedly furtive movements by the Hyundai driver and perceived

nervousness of the driver and the front-seat passenger. As the motion judge

properly noted, such observations cannot be dispositive or given undue weight.

"'Furtive movements by [a] defendant," by themselves, "cannot provide


                                                                         A-2122-16T4
                                       27
reasonable and articulable suspicion to support a detention in the first instance."

Rosario, 229 N.J. at 277; State v. Dunbar, 434 N.J. Super. 522, 527 (App. Div.

2014).   "Nervousness and excited movements are common responses to

unanticipated encounters with police officers on the road, and '[m]ere furtive

gestures of an occupant of an automobile do not give rise to an articulable

suspicion suggesting criminal activity." Rosario, 229 N.J. at 277 (quoting State

v. Lund, 119 N.J. 35, 47 (1990)).

      An individual's "failure to make eye contact with the police" also does not

transform otherwise innocuous actions, such as sitting in a parked car, into

suspicious ones. Stampone, 341 N.J. Super. at 252. See also Rosario, 229 N.J.

at 267-77 (holding an officer's detention of the defendant unjustified where she

had been sitting in her parked car, glanced nervously at him as he approached,

and "scuffled around" with something in the passenger seat).

      In State v. Tucker, 136 N.J. 158, 169-70 (1994), the Court found that even

a person's flight upon seeing police does not by itself generate reasonable

suspicion, absent other evidence of criminal activity such as possession of

suspicious package, the furtive exchange of money, a report of nearby crimes,

or a description of a crime suspect matched by the fleeing individual.




                                                                           A-2122-16T4
                                       28
      By contrast, the Supreme Court found an investigatory detention proper

where a defendant met a more detailed description and also appeared nervous as

police approached. State v. Privott, 203 N.J. 16, 28-29 (2010). In Privott, the

Court found that an anonymous tip that a tall, thin, dark-skinned male wearing

a black jacket and a black and red cap was standing on a certain corner and had

a handgun would have been insufficient on its own to generate a particularized

suspicion that the defendant, who matched most of that description, was engaged

in criminal activity.   However, because the defendant was known to the

investigating officer from prior arrests, "appeared nervous," and walked away

from the officer while putting a hand near his waistband, an investigatory stop

was proper. Ibid.9

      Proximity of Place and Time

      Our case law has also recognized that "the proximity of the stop in time

and place to the crime in question" can be "critical to the resolution of the

existence of a reasonable and articulable suspicion." State v. Gavazzi, 332 N.J.

Super. 348, 357 (App. Div. 2000). In State v. Reynolds, 124 N.J. 559, 569


9
  See also State v. Ruiz, 286 N.J. Super. 155, 163 (App. Div. 1995) (in which
suppression was properly denied where the defendant was known to officer from
prior arrests, was walking in the center of the road late at night in an area known
for drug trafficking, had been reported in an anonymous tip, and immediately
ran away upon seeing officer).
                                                                           A-2122-16T4
                                       29
(1991), the Court found that the facts that the defendant matched a descripti on

by the assault victim and was located by an officer in a field near the crime scene

shortly thereafter were sufficient to generate a reasonable suspicion. Similarly,

in State v. Todd, 355 N.J. Super. 132, 138 (App. Div. 2002), the defendant

matched the height, weight, and clothing of a description given of a cat burglar;

was spotted in the vicinity of the burglaries minutes after they were reported;

was the only person walking on that street at 3:30 a.m.; and was "sweating and

appeared nervous." We held in Todd that police had the necessary level of

suspicion to conduct an investigative stop to question the defendant. Ibid.10

                                        2.

      Analysis

      Applying these principles, we recognize that both sides present strong




10
  See also Gavazzi, 332 N.J. Super. at 360-62 (investigatory stop of defendant's
car proper where the defendant matched height and clothes of robber, officers
saw car traveling away from scene six minutes after crime, and car was only
vehicle on rural road); State v. Wanczyk, 201 N.J. Super. 258, 261-64 (App.
Div. 1985) (stop of vehicle proper where the defendant was seen leaving area of
arson at nature reserve and getting into that car); State v. Anderson, 198 N.J.
Super. 340, 347 (App. Div. 1985) (stop of vehicle in which two black males
were visible found proper where car was only vehicle on road at 1:30 a.m. in
area of robbery shortly after crime reported and dispatch reported three armed
black males).
                                                                           A-2122-16T4
                                       30
reasons for concluding that reasonable suspicion was or was not present here to

justify an investigatory stop.

      On the State's side of the ledger, the strongest point is proximity to the

time and place of the reported crime. Temporally, the police encountered

defendants' vehicle only about two minutes after the 9-1-1 caller reported the

intrusion. In fact, the 9-1-1 caller was still on the phone with the dispatcher

when defendants were apprehended, and the dispatcher asked her if she could

identify them if they were brought to her. The physical proximity of the police

encounter was also very close: less than a block away and under the length of a

football field. In addition, the State emphasizes the numerical match of three

intruders and three men in the Hyundai. Further, the State has in it s favor the

observed slouch of Dunlap as the police approached, the perceived nervousness

of both defendants, the brief attempt to put the car in reverse, and the observation

of a backpack in the car.

      Defendants, meanwhile, have several important factors in their own favor.

The dispatch description of the intruders was highly generic; we can take

judicial notice that it is not uncommon to come upon a trio of adult males in

New Brunswick in a parked car possibly wearing dark clothing. The match of

three men is not especially significant since, as defendants argue, the three


                                                                            A-2122-16T4
                                        31
perpetrators left the apartment on foot and could have dispersed individually, or

with one peeling off from the other two. Or one or more other people, such a

separate getaway driver, could have joined the group.

      This case is factually different from some others where proximity to a

crime scene was held to justify an investigative detention. In Reynolds, 124 N.J.

at 569, Todd, 355 N.J. Super. at 138, Gavazzi, 332 N.J. Super. at 360-62, and

Anderson, 198 N.J. Super. at 347, the descriptions of the perpetrators that the

defendants matched were more detailed than simply "males," as here. In those

cases, and Wanczyk, 201 N.J. Super. at 261-64, the defendants were the only

people seen walking or driving in the area near the crime scene, while here, there

was "light" vehicle traffic nearby. Reynolds, Gavazzi, and Wanczyk involved

rural or park land areas where the defendants' presence was notable in itself,

while here, the crime and arrest took place in an urban area where Monticello

admitted there were "a lot of side streets" and homes where the perpetrators

could have fled.

      This case also has some differences from other cases where nervous

behavior upon noticing a police presence was held to support reasonable

suspicion. In Privott, 203 N.J. at 28-29, the defendant matched a much more

detailed description, including height, weight, and clothing, and his nervous


                                                                          A-2122-16T4
                                       32
behavior including reaching for his waistband while walking away from the

investigating officer. In Ruiz, 286 N.J. Super. at 163, the defendant was not

only nervous, he ran away, and his behavior in walking in the middle of a road

very late at night was unusual. Here, the scenario was more similar to Rosario,

229 N.J. at 267-77, and Stampone, 341 N.J. Super. at 252, where the facts that

the defendants were sitting in parked cars and avoided eye contact with officers

or made "furtive" movements were deemed insufficient to justify a search. On

the other hand, unlike the latter two cases, here there was a report of a robbery

occurring shortly before the officers approached defendants.

      Considering the "totality of circumstances," we discern strong factual

points both in favor and against a finding of objectively reasonable suspicion to

justify an investigatory stop of defendants. We need not resolve this very close

question because, as we will now explain, we conclude the officers lacked

probable cause to arrest defendants at the critical point in time when they did

so.

                                        B.

      As a threshold aspect of the arrest analysis, we reject the State's contention

that defendants were not yet arrested until after Dunlap, already handcuffed on




                                                                            A-2122-16T4
                                       33
the ground, rolled over and the silver gun was exposed. The arrest occurred

before that point in the sequence of events.

      The touchstone of an arrest is whether a reasonable person in the situation

would feel free to end the encounter with police. State v. Shaw, 213 N.J. 398,

410 (2012).    If police officers' conduct is more than what is "minimally

intrusive" than required to investigate, it can be regarded as an arrest. State v.

Dickey, 152 N.J. 468, 478 (1998).

      One indication that an arrest has occurred is when law enforcement has

placed an individual in handcuffs. Id. at 479. See also State v. Shaw, 237 N.J.

588, 613 (2019). Here, the police almost immediately placed defendants in

handcuffs once they had forcibly pulled them out of the car. Defendants were

then forced to lie face-down, on the cold ground in handcuffs, on separate sides

of the car, with police officers hovering over them. It is incredible to say that

defendants by that point were still free to leave. Their freedom of movement

was clearly and forcibly restricted. That restraint went well beyond the level

reasonably necessary to conduct a mere investigatory stop.

      The level of police restraint quickly escalated here to the degree of an

arrest. The circumstances have some parallels to those in DelaCruz v. Borough

of Hillsdale, 365 N.J. Super. 127, 146 (App. Div. 2004), aff'd in part, rev'd in


                                                                          A-2122-16T4
                                       34
part, 183 N.J. 149 (2005), in which an investigatory stop escalated into a "de

facto arrest" carried out in a "confrontational manner." The two police officers

in DelaCruz were convinced they had come upon a wanted burglar, removed a

perceived suspect from a vehicle at gunpoint, physically forced him facedown

to the ground, and kept him handcuffed for over ten minutes. Ibid. We held this

rough manner of interacting with the individual was "factually unwarranted and

legally untenable, under the circumstances." Ibid.

      In making these observations, we do not suggest that police officers

cannot use reasonable force to restrain an arrestee. Of course they can. Our

point is that when the use of physical restraint intensifies to the degree shown

here, there can be little doubt that the individual has been arrested, whether or

not a formal proclamation of an arrest has yet been made.

      The key question then becomes whether the police had sufficient probable

cause to arrest defendants at the point in time when they were pulled out of the

car, handcuffed, and forced to lie face down on the ground. We conclude that

such probable cause was not yet present, and the motion judge erred in finding

otherwise.

      At the time defendants were arrested, neither the black gun nor the silver

gun had been observed. No witness had seen them get into the car after the


                                                                         A-2122-16T4
                                      35
home invasion. As we have noted, the victim's description of "three males in

dark clothing" was quite generic. Likewise, backpacks are a common item. The

Hyundai, although pointed in a direction away from the victim's apartment with

the engine running, was lawfully parked at the side of the road. Unlike in Coles,

218 N.J. at 329, defendants had not given suspicious answers to police questions.

They apparently weren't asked any questions before they were removed from the

car and handcuffed.

      We acknowledge that Dunlap did not immediately comply with the

officers' command to raise both of his arms, and that he was seen reaching in a

direction towards his waistband. We also acknowledge Officer Monticello saw

a black backpack as he approached the vehicle. We are aware that the two

officers were initially outnumbered three-to-two, although backup officers had

arrived by the time defendants were pulled out of the car and placed in

handcuffs. These are points helpful to the State's position. Nevertheless, on

balance, we are not persuaded that the information known to the officers—even

if it hypothetically satisfied the lesser standard of reasonable suspicion—met the

more rigorous standard of probable cause. There was not yet in the chronology

a sufficiently "well-grounded" basis to believe that defendants had committed a

crime. Pineiro, 181 N.J. at 21.


                                                                          A-2122-16T4
                                       36
      To be sure, we appreciate the public safety aspects of these issues, and the

practical challenges of police officers making on-the-spot assessments of

unfolding and potentially dangerous situations when out on patrol. We have

already stated, as defendants concede, that it was appropriate for the officers to

approach the car with their guns drawn. But the officers went over the line

beyond constitutional safeguards by escalating the situation to an arrest, without

knowing more inculpatory facts or observing more troubling behavior. If we

were to condone the escalation that occurred here, that conceivably would invite

law enforcement to "rush to judgment" too swiftly in situations involving other

civilians who happen to be sitting in a parked car near the recent scene of a

crime.

                                       C.

      In sum, we are constrained to conclude that the warrantless arrest of

defendants in this case was unconstitutional. Because of that, the fruits of the

searches that ensued must be suppressed. State v. Herrerra, 211 N.J. 308, 330

(2012). Consequently, defendants' convictions based upon the illegally-seized

evidence must be reversed, and their cases remanded for further proceedings.




                                                                          A-2122-16T4
                                       37
                                       III.

      We briefly address defendants' remaining arguments for sake of

completeness.    Only two of their arguments have enough merit to warrant

discussion: (1) the absence of a jury charge on identification; and (2) the

imposition of multiple "stacked" consecutive sentences upon each defendant.

      First, we are persuaded that the trial court -- although it was not requested

by defendants' trial counsel to do so -- should have issued the relevant portion

of the model jury instruction on identification.        See Model Jury Charge

(Criminal), "Identification: No In-Or-Out-Of-Court Identification" (approved

Oct. 2015). This special instruction, crafted after our Supreme Court's seminal

opinion on identification issues in State v. Henderson, 208 N.J. 208 (2011),

appropriately advises jurors in circumstantial evidence cases such as this one

that the identity of a criminal offender is a necessary element that the

prosecution must prove beyond a reasonable doubt. See also State v. Cotto, 182

N.J. 316, 326 (2005). The utility of this instruction is not eliminated by the

absence of any positive identifications by the apartment-dwelling victims. In

fact, the absence of an eyewitness identification is the very reason this jury

instruction exists.




                                                                           A-2122-16T4
                                       38
      That said, we are not persuaded the omission of the instruction is plain

error that compels reversal in and of itself. R. 2:10-2. The jury was more

generally advised of the State's burden to prove all elements of the charged

offenses beyond a reasonable doubt. To be sure, it would have been preferable

for the identification charge to be given, but the error was not "plain."

      Second, the trial court at sentencing did not adequately explain why the

consecutive sentences for the burglary, robbery, and weapons offenses were

justified, beyond the general principle that offenders should have "no free

crimes." State v. Yarbough, 100 N.J. 627, 643 (1985). The trial court did not

provide a sufficient analysis of the Yarbough factors to support the consecutive

sentences.   The State does not provide a convincing justification for the

omission.    Had we not set aside defendants' convictions, we would have

remanded for resentencing to cure this omission.

      All other arguments raised by defendants lack sufficient merit to warrant

discussion. R. 2:11-3(e)(2). In particular, we discern no other shortcomings in

the jury charge. Although the verdict sheet could have been improved to guard

against non-unanimity, we do not regard it as critically defective. We are

unpersuaded that any other errors occurred during the trial that were clearly




                                                                            A-2122-16T4
                                       39
capable of producing an unjust result, or that the jury's guilty verdict lacked

sufficient support in the evidence the trial court admitted.

      Reversed and remanded for proceedings consistent with this opinion. We

do not comment on whether the State might possess any non-suppressed

evidence that could support a second trial.




                                                                       A-2122-16T4
                                       40
