                                NOT FOR PUBLICATION WITHOUT THE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




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0182-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WILKINSON A. REYES,

     Defendant-Appellant.
________________________

                    Submitted January 6, 2020 – Decided March 20, 2020

                    Before Judges Vernoia and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 17-02-0114.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alicia J. Hubbard, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                    attorney for respondent (Timothy M. Ortolani, Special
                    Deputy Attorney General/Acting Union County
                    Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant, Wilkinson A. Reyes, appeals from his conviction by guilty

plea to simple possession of heroin, contrary to N.J.S.A. 2C:35-10(a). The sole

issue on appeal is whether the trial court erred when it denied defendant's motion

to suppress controlled substances found on his person. Defendant was arr ested

and subjected to a search incident to that arrest after a fold of heroin fell into

view while police were conducting a "Terry"1 frisk for weapons. Defendant

contends the initial stop and ensuing frisk were unlawful.

       We have reviewed the record in view of the parties' arguments and

applicable legal principles and conclude that the heroin should have been

suppressed. The police officers were authorized to initiate an investigative

detention based on reasonable suspicion that defendant was involved in criminal

activity. However, the State failed to establish that the officers had reasonable

suspicion to believe defendant was armed with a weapon. The protective pat -

down search, therefore, was unlawful.       Because the pat down led to the

discovery of the heroin, that evidence should have been suppressed as a fruit of

the unlawful frisk.




1
    Terry v. Ohio, 392 U.S. 1 (1968).
                                                                          A-0182-18T2
                                        2
                                         I.

      A Union County Grand Jury indicted defendant for possession of heroin,

contrary to N.J.S.A. 2C:35-10(a)(1), and possession of that heroin with intent to

distribute, contrary to N.J.S.A. 2C:35-5(a)(1), (b)(3). Defendant filed a motion

to suppress arguing that the police did not have a lawful basis to initiate an

investigative detention or to conduct a protective frisk for weapons. The trial

judge convened an evidentiary hearing after which he denied defendant's

suppression motion in a written opinion.

      Thereafter, defendant pled guilty to simple possession of heroin pursuant

to a negotiated agreement in which the State agreed to dismiss the possession -

with-intent-to-distribute charge. Defendant was sentenced in accordance with

the plea agreement to noncustodial probation for a period of eighteen months to

be followed by 180 days incarceration in county jail.          The court made

defendant's service of the jail term contingent on his performance on probation.

If defendant performed well on probation, the judge indicated he would vacate

the custodial portion of the sentence.

      Defendant appealed the denial of his suppression motion pursuant to Rule

3:5-7(d).




                                                                         A-0182-18T2
                                         3
                                       II.

      Defendant raises the following contentions for our consideration:

            THERE WAS NO REASONABLE SUSPICION TO
            STOP [DEFENDANT], NOR PROBABLE CAUSE TO
            CONDUCT THE SUBSEQUENT WARRANTLESS
            SEARCH OF HIS PERSON. THEREFORE, THE
            EVIDENCE OF THE SEARCH MUST BE
            SUPPRESSED.

                  A. THE ENCOUNTER WAS AN
                  UNLAWFUL INVESTIGATIVE STOP
                  NOT     PREDICATED     UPON
                  REASONABLE SUSPICION.

                  B. WHETHER OR NOT THE POLICE
                  HAD REASONABLE SUSPICION TO
                  STOP [DEFENDANT], THERE WAS NO
                  PROBABLE CAUSE TO JUSTIFY THE
                  SEARCH AND NO EXCEPTION TO THE
                  REQUIREMENT FOR A WARRANT
                  AND/OR PROBABLE CAUSE.

                                      III.

      The following facts were adduced at the suppression hearing. On October

25, 2016, at approximately 8:45 p.m., two detectives and another officer were

in an unmarked police vehicle on patrol in the area of East Sixth Street in

Plainfield. Detective Stephon Knox testified that the neighborhood was a high-

crime area with frequent drug activity. He noted that "[a] few days prior," there

were "shootings throughout the City of Plainfield."       As a result of those


                                                                          A-0182-18T2
                                       4
shootings, officers were on high-visibility patrol and had instructions to

investigate all suspicious behavior.

        The officers observed five adult males sitting on the steps in front a

building on East Sixth Street. The men appeared to be talking to one another;

they were not drinking or otherwise engaging in disruptive activity. When the

police vehicle approached, one of the males walked away quickly. Although

that caught the officers' attention, they did not pursue the individual who walked

away.

        Detective Knox testified that it is common for individuals to sit on other

persons' property to ingest or sell controlled substances.         The detective

acknowledged, however, that in this instance, he did not observe anyone using

drugs, nor did he observe any hand-to-hand drug transactions.

        The officers drove up to the four remaining males and, while remaining

in the police vehicle, asked them if they lived there. Defendant answered "no"

but told the officers that a female who lives in the building said they could sit

on the steps. Defendant was not able to provide the name of the woman who he

claimed had given them permission to be on the property.

        The building is a multi-family dwelling with two separate front doors.

The officers got out of the police vehicle to investigate whether the males had


                                                                          A-0182-18T2
                                         5
permission to be sitting on the front steps. The officers knocked on both doors.

No one answered the door on the left, but a woman answered the door on the

right. She stated she did not know the men sitting on the front steps and had not

given them permission to be there.

      Now believing that defendant had lied to them, the officers escorted

defendant and the other three males to the police vehicle. Defendant at that

point became "extremely nervous." Detective Knox testified that defendant's

hands were shaking and he started breathing faster. Knox acknowledged that,

from his experience, it is common for people to become nervous around police

even if they have done nothing wrong. Based on defendant's nervousness, the

detective conducted a protective frisk.

      As the detective was patting down defendant's outer clothing, he felt a

cardboard box. He asked defendant what it was and defendant answered that it

was just cigarettes. The detective did not remove the box from defendant's

pocket.

      During the frisk, defendant was leaning on the car. Knox repeatedly asked

defendant to stop doing so. The detective testified that based on his experience,

people who lean on a car during a frisk are trying to hide contraband. The

detective continued the frisk. When he reached defendant's waist area, a small


                                                                         A-0182-18T2
                                          6
glassine package, commonly referred to as a "fold," fell to the ground. Knox

testified that the fold had fallen from the front of defendant's jacket. Kn ox

recognized the fold to be heroin. A subsequent search incident to defendant's

arrest uncovered two cigarette boxes, one of which contained a paper packet

with glassine folds inside of it.

                                       IV.

      We begin our analysis by acknowledging general legal principles that

govern this appeal. When reviewing a trial court's decision in a motion to

suppress, we defer to the court's factual findings so long as they are "supported

by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412,

424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). "By contrast, the

task of appellate courts generally is limited to reviewing issues of law. Because

legal issues do not implicate the fact-finding expertise of the trial courts,

appellate courts construe the Constitution, statutes, and common law 'de novo –

"with fresh eyes" . . . .'" State v. S.S., 229 N.J. 360, 380 (2017) (emphasis

omitted) (quoting State v. Morrison, 227 N.J. 295, 308 (2016)). We need not

defer, in other words, to a trial court judge's interpretive conclusions "unless

persuaded by their reasoning."      Morrison, 227 N.J. at 308 (citing State v.

Goodwin, 224 N.J. 102, 110 (2016)).


                                                                         A-0182-18T2
                                        7
                            A. Initial Field Inquiry

      When analyzing an alleged Fourth Amendment violation and its state

constitutional counterpart, Article 1, Paragraph 7 of the New Jersey

Constitution, we proceed step by step through the sequence of events leading to

the discovery of the challenged evidence. We begin by reviewing the earliest

stages of this police-citizen encounter to determine precisely when the officers

first initiated an investigative detention, which requires objective grounds for

suspicion.

      We agree with the trial court that the officers acted reasonably when they

approached the men on the front steps. As the trial court correctly noted, police

are permitted under the consensual field inquiry doctrine to approach people and

ask questions without any grounds for suspicion, provided those individuals

would reasonably believe that they are free to walk away or ignore police

questions. State v. Pineiro, 181 N.J. 13, 20 (2004) (citing State v. Maryland,

167 N.J. 471, 483 (2001)). In this instance, the officers posed their questions to

defendant in a conversational manner that was "not harassing, overbearing, or

accusatory in nature." State v. Nishina, 175 N.J. 502, 510 (2003). The fact that

one of the individuals walked away without repercussion supports the


                                                                          A-0182-18T2
                                        8
conclusion that the initial conversation occurred within the bounds of a lawful

field inquiry.

      We also agree with the trial court that the officers were permitted to knock

on the front doors of the two residences to investigate defendant's claim that he

and the other individuals had permission to sit on the front steps.          That

investigative technique did not intrude upon defendant's Fourth Amendment

liberty or privacy rights and thus could be undertaken without objective grounds

for suspicion.

                      B. Escalation to Investigatory Stop

      The field inquiry escalated to an investigative detention, commonly

referred to as a Terry "stop," when police "escorted" defendant and the others to

the nearby police vehicle. See State v. Rosario, 229 N.J. 263, 267 (2017)

(holding that the defendant was subjected to investigative detention, not just a

field inquiry, because "a reasonable person would feel the constraints on her

freedom of movement from having become the focus of law enforcement

attention"). There is no indication in the record before us that defendant or the

others were afforded the option to refuse the police instruction that they move

from the steps to the police car. Nor would defendant have reasonably believed

at this point that he could simply walk away.


                                                                          A-0182-18T2
                                        9
      At the moment of escalation from field inquiry to investigative detention

the officers needed to have reasonable articulable suspicion to believe defendant

was involved in criminal activity. See Pineiro, 181 N.J. at 20 ("An investigatory

stop . . . is valid '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.'" (quoting Nishina, 175 N.J. at 510–11)). Stated

in another way, there must be "some objective manifestation that the person

[detained] is, or is about to be engaged in criminal activity." Id. at 22 (alteration

in original) (quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)).

      A determination of reasonable suspicion for an investigatory stop is highly

fact-sensitive. Nishina, 175 N.J. at 511 (citing United States v. Sokolow, 490

U.S. 1, 7 (1989)). We consider the "totality of the circumstances" in assessing

whether police have reasonable, articulable suspicion that criminal activity is

afoot. State v. Davis, 104 N.J. 490, 504 (1986). In this instance, the State

presented three circumstances from which to adduce reasonable suspicion to

initiate a stop: (1) the high crime nature of the neighborhood, (2) the detective's

experience that it is common in these neighborhoods for drug offenders to sit on

someone else's property, and (3) the apparent lie defendant told police

concerning his authority to be sitting on another person's front steps.           To


                                                                             A-0182-18T2
                                        10
facilitate our analysis, we address the pertinent suspicion factors separately

before measuring their combined effect. See Nishina, 175 N.J. at 511 ("Facts

that might seem innocent when viewed in isolation can sustain a finding of

reasonable suspicion when considered in the aggregate, so long as the officer

maintains an objectively reasonable belief that the collective circumstances are

consistent with criminal conduct." (citations omitted)).

      We first consider the significance of the fact this encounter occurred in a

high-crime neighborhood.      Our search and seizure jurisprudence has long

recognized that the high crime, high violence nature of a neighborhood is a

relevant circumstance police may take into account in deciding whether to

initiate a stop and, thereafter, whether to conduct a protective frisk for weapons.

While this circumstance by itself is not sufficient to justify either a stop or a

frisk, it often is cited as a suspicion factor when combined with other more

individualized suspicious circumstances. See, e.g., State v. Bard, 445 N.J.

Super. 145, 157–58 (App. Div. 2016) (relying in part on defendant's presence in

a high-crime area in holding that police possessed a reasonable, articulable

suspicion of criminal activity).

      In ascertaining the weight police may ascribe to the nature of the

surrounding area in determining whether reasonable suspicion exists, we must


                                                                           A-0182-18T2
                                       11
be mindful of the constitutional rights of law-abiding citizens who live, work,

and attend school in high-crime neighborhoods. This circumstance applies to

countless New Jersey residents, especially those who live in urban centers.

Reviewing courts applying this suspicion factor to real-world police decisions,

therefore, must guard against treating it as a talisman before which Fourth

Amendment rights are diminished.

      The detective's testimony concerning the recent shootings in Plainfield

would not, on its own, justify detaining defendant. While the shootings a "few

days" before the police-citizen encounter certainly supported the enhanced

vigilance of the police department, those shootings did not provide sufficient

grounds to stop defendant in the absence of reason to believe he had been

connected to those incidents See State v. Kuhn, 213 N.J. Super. 275, 281 (App.

Div. 1986) (noting that a report of a day-old burglary "does not transform a

residential neighborhood into a no-man's land in which any passerby is fair game

for roving police interrogatories" (quoting In re Tony C., 582 P.2d 957, 962

(Cal. 1978))).

      We turn next to the detective's experience that drug users and sellers in

this neighborhood often sit on another person's property to ingest drugs or

engage in illicit drug transactions. The detective's experience with respect to


                                                                        A-0182-18T2
                                      12
the common methods of operation and practices of drug offenders is a relevant

circumstance that provides a context in which to interpret defendant's conduct.

See State v. Gibson, 318 N.J. Super. 1, 8 (App. Div. 1999) ("In deciding the

validity of an investigatory stop, the evaluating court must 'give weight to "the

officer's knowledge and experience" as well as "rational inferences that could

be drawn from the facts objectively and reasonable viewed in light of the

officer's expertise."'" (quoting State v. Citarella, 154 N.J. 272, 278 (1998))).

      Detective Knox acknowledged that he did not observe defendant or the

other men sitting on the steps openly engaging in criminal activity. The police

also were not responding to a report that these individuals were committing an

offense. Viewed in isolation, therefore, the detective's experience as to the

common practices of drug offenders in this high-crime neighborhood would be

insufficient to justify a stop.

      However, the detective's experience takes on added significance when we

consider defendant's statement to the officers that he and the other persons

sitting on the front steps had received permission to do so from a woman inside

the house. That brings us to the one suspicion factor relied on by the State that

relates to defendant's own conduct (an individualized suspicion factor), as

distinct from the conduct of others (generalized suspicion factors). Defendant's


                                                                           A-0182-18T2
                                       13
statement to the officers that he had express permission to sit on the steps of the

building, considered in light of the follow-up investigation and the detective's

experience, tips the scale in favor of reasonable suspicion to believe criminal

activity was afoot.

      Specifically, the officers' follow-up investigation failed to verify

defendant's answer to the simple question posed during the field-inquiry

segment of this encounter.      It was reasonable in these circumstances for

detective Knox to infer that defendant had lied. It is significant, moreover, that

the suspected lie relates to the detective's experience as to the common behavior

of local drug offenders. Viewed through the lens of that experience, it was

reasonable for Detective Knox to infer that defendant lied for the purpose of

concealing criminal activity.

      We recognize that the officers only spoke to an occupant from one of the

two housing units. It therefore is possible that permission to sit on the steps had

been granted by an occupant of the other housing unit. However, the reasonable-

suspicion standard needed to justify an investigative detention is not overly

demanding. See Nishina, 175 N.J. at 511 (describing reasonable suspicion as

requiring "some minimal level of objective justification" (quoting Sokolow, 290

U.S. at 7)). Certainly, the officers did not have to possess probable cause to


                                                                           A-0182-18T2
                                       14
believe defendant had lied to them in order to justify the investigative detention.

Id. at 514 (reiterating that reasonable suspicion, not probable cause, is the

standard for an investigative detention).

      Applying the less exacting reasonable suspicion level of proof to the

circumstances presented in this case, we agree with the trial court that the

officers had a reasonable basis to suspect that defendant had lied to them. See

State v. Daniels, 264 N.J. Super. 161, 166 (App. Div. 1993) (recognizing that

lying to police is a relevant factor in determining whether police have reasonable

suspicion to believe criminal activity is occurring (citing State v. Lund, 119 N.J.

35, 48 (1990))).

      Considering the totality of the suspicious circumstances, we agree with

the trial court that the detective had an objectively reasonable basis to believe

that defendant and the other men were engaged or about to be engaged in

criminal activity. Accordingly, it was lawful for the officers to direct defendant

and the others to move off the steps and toward the police car where the officers

could continue their investigation pursuant to Terry.

                       C. Authority to Frisk for Weapons

      We next address whether the officers in this case were permitted to frisk

defendant for weapons. We note that the trial court's written opinion merely


                                                                           A-0182-18T2
                                       15
acknowledges that a pat down occurred. It does not address whether the legal

standard for conducting a frisk was satisfied. We therefore review the record de

novo to determine if that standard was met.

      The facts that support a lawful stop do not always support a lawful frisk.

See State v. Thomas, 110 N.J. 673, 683–85 (1988) (concluding that although the

officer was justified in conducting an investigative detention, the record did not

justify the officer conducting a pat-down search of the defendant); see also State

v. Walker, 282 N.J. Super. 111, 115 (App. Div. 1995) (holding that a

"generalized suspicion" that "something was amiss" during a valid traffic stop

did not provide a reasonable basis for belief that defendant might be armed and

dangerous). Rather, the frisk is a separate and distinct Fourth Amendment

intrusion that must be based on an individualized suspicion that the suspect is

carrying a concealed weapon. Police are afforded the "automatic authority" to

conduct a frisk only when a stop is based on a suspected offense that involves

violence or weapons. Thomas, 110 N.J. at 680.

      In the case before us, as in Thomas, the circumstances that justified the

initial stop do not reasonably suggest that defendant was armed. As we have

already noted, although Detective Knox testified there had been shootings at

unspecified locations in the City of Plainfield a few days earlier, there is nothing


                                                                            A-0182-18T2
                                        16
in the record to link defendant to those incidents. So far as our review of the

record shows, at the moment the field inquiry escalated to an investigative

detention, there was no objective basis to believe defendant was carrying a

weapon.

      In State v. Garland, we held that if there is no objective basis to believe a

suspect is armed and dangerous based on an initial stop, a frisk is not permitted

unless some event occurs between the stop and frisk. 270 N.J. Super. 31, 42

(App. Div. 1994). In this case, an additional suspicion factor did arise after

police escorted defendant to the police car but before they initiated the pat down.

Specifically, defendant became "extremely nervous" as evidenced by trembling

hands and rapid breathing. 2 The record shows, moreover, that defendant's

nervousness was a critical factor in the detective's decision to conduct a frisk.

Detective Knox testified that he became apprehensive when defendant became

nervous.

      Detective Knox acknowledged that, from his experience, it is common for

people to become nervous around police even if they have done nothing wrong.

That acknowledgment does not minimize the significance of defendant's nervous


2
   Defendant's nervous reaction occurred only after he was directed to move
toward the police vehicle and thus cannot be used to justify the decision to
initiate the investigatory stop.
                                                                           A-0182-18T2
                                       17
reaction to the investigatory stop. In State v. Stovall, 170 N.J. 346, 367 (2002),

the Supreme Court remarked that while "some individuals become nervous when

questioned by a police officer[,] . . . the fact that such reactions may be

commonplace does not detract from the well-established rule that a suspect's

nervousness plays a role in determining whether reasonable suspicion exists."

      The timing of defendant's nervous reaction is significant. Defendant did

not exhibit indications of extreme nervousness at the outset of the encounter or

when the detective first posed a question to him. Rather, defendant's hands

trembled and he started to breath fast only after police had conducted a follow -

up investigation with the house occupant and after police instructed defendant

and the others to walk towards the police vehicle. We therefore consider it

reasonable to infer that defendant's sudden nervousness reflects a consciousness

of guilt and not just general apprehension while around police.

      That conclusion does not necessarily mean that such nervousness

automatically constitutes reasonable suspicion that defendant was armed and

dangerous. In State v. Carty, the Court held that nervousness is "not sufficient

grounds for the reasonable and articulable suspicion necessary to expand the

scope of a detention beyond the reason for the original stop." 170 N.J. 632, 648




                                                                          A-0182-18T2
                                       18
(2002); see also Pineiro, 181 N.J. at 29 (noting the suspect's nervousness did not

elevate reasonable suspicion to probable cause).

      Our decision in Walker is instructive on this point. In that case, the

defendant during a motor vehicle encounter with a state trooper "appeared

nervous, spoke very quickly, stuttered, and failed to make eye contact." Walker,

282 N.J. Super. at 113. The defendant and the driver of the stopped vehicle also

gave conflicting answers. Ibid. We concluded on those facts that the trooper

did not have a particularized suspicion that the defendant was armed. We

reasoned, "[a]lthough the driver's [nervous] demeanor and the responses that the

driver and defendant gave to the officer's questions may have created a

reasonable suspicion that they were engaged in some form of wrongdoing, such

as being in possession of illegal drugs, they did not provide a reasonable b asis

for a belief that defendant might be armed and dangerous." Id. at 115. Here

too, defendant's nervousness, coupled with his apparent lie, bolsters the

suspicion that he was engaged in some form of wrongdoing, such as a drug

offense consistent with Detective Knox's experience with respect to persons who

sit on someone else's front steps. Defendant's nervousness, however, does not

reasonably suggest that he was carrying a weapon.




                                                                          A-0182-18T2
                                       19
      Furthermore, in assessing the totality of the circumstances, we take note

of the weapons-related suspicion factors recognized in our case law that were

not present in this encounter. See State v. Richards, 351 N.J. Super. 289, 307

(App. Div. 2002) (highlighting suspicion factors not present in that case and

noting "what this record does not show is more persuasive than what it does

reveal").

      For example, the officers did not observe an unexplained bulge in

defendant's clothing that might have been a weapon. Ibid. Defendant made no

threatening or furtive movement such as reaching to his waistband or pocket. 3

Ibid.; see also State v. Privott, 203 N.J. 16, 29–30 (2010) (noting the suspect's

movement of one hand toward his waistband—an area commonly used by armed

persons to conceal a weapon—was part of the totality of the circumstances that

would lead an officer to have objectively reasonable concern for his or her


3
    Defendant's action of leaning against the police vehicle despite being
instructed not to do so might be interpreted either as resistance or furtive conduct
somewhat analogous to reaching toward a pocket. While less threatening than
reaching for a concealed weapon, pressing against the vehicle would make it
more difficult for the officer to pat down the front of a suspect's clothing to
detect the presence of a weapon. This behavior undermines the protective value
of the frisk and thus enhances the danger to officer safety. However, defendant's
non-compliance with the detective's instructions occurred after the frisk was
initiated. Therefore, defendant's apparent attempt to frustrate the frisk cannot
be considered a suspicion factor justifying the pat down.


                                                                            A-0182-18T2
                                        20
safety); State v. Bellamy, 260 N.J. Super. 449, 457 (App. Div. 1992) (finding a

motorist's movement toward the inside jacket pocket constituted reasonable

suspicion to justify frisk even though it was equally likely that he was merely

reaching for credentials).

      Furthermore, the officers did not recognize defendant from prior

encounters and had no reason to believe defendant was a member of a violent

street gang. Privott, 203 N.J. at 28 (noting that an officer's knowledge that

defendant was associated with a violent street gang is a relevant circumstance

supporting a Terry stop and frisk). Nor did the officers have reason to believe

defendant had a criminal record or history of violence or possession of weapons.

C.f. State v. Valentine, 134 N.J. 536, 547 (1994) (deeming an officer's

knowledge of the suspect's prior armed robbery offense relevant but not

sufficient on its own to justify a frisk). The officers, moreover, were not

responding to a report that defendant was seen in possession of a weapon. C.f.

Florida v. J.L., 529 U.S. 266 (2000) (holding that an anonymous report of a man

with a gun does not per se justify a stop and frisk). Nor were the officers

responding to a recent specific violent or weapons-related crime in the area that

might have been committed by defendant or the other men who had been sitting

on the front steps. As we have already noted, the shootings in Plainfield


                                                                         A-0182-18T2
                                      21
occurred several days before this encounter and the officers had no objective

basis to link defendant to those incidents.

      We appreciate that reviewing courts should be circumspect in second-

guessing police regarding their concern for safety. Officers on patrol, after all,

"must often act on the spur of the moment without the opportunity for abstract

contemplation that . . . judges enjoy." State v. Bynum, 259 N.J. Super. 417,

421–22 (App. Div. 1992).

      Nonetheless, on the record before us, we do not believe defendant's

nervous reaction, when considered in combination with the suspicion factors

that justified the stop, was sufficient to establish reasonable suspicion to believe

he was carrying a concealed weapon. We therefore are constrained on these

facts to hold that the frisk was unlawful. Because the heroin was found only

after and as a direct result of the unlawful frisk, that evidence must be

suppressed. See State v. Bryant, 227 N.J. 60, 75 (2016) (holding evidence from

an illegal protective sweep must be suppressed as "fruits of the poisonous tree").

      The order denying the motion to suppress is reversed and the matter is

remanded. We do not retain jurisdiction.




                                                                            A-0182-18T2
                                        22
