                                NOT FOR PUBLICATION WITHOUT THE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-3303-18T2

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

DELSHON J. TAYLOR,

     Defendant-Respondent.
_____________________________

                    Submitted July 9, 2019 – Decided August 28, 2019

                    Before Judges Hoffman and Currier.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Salem County,
                    Indictment No. 18-07-0257.

                    John T. Lenahan, Salem County Prosecutor, attorney
                    for appellant (David M. Galemba, Assistant Prosecutor,
                    of counsel and on the briefs).

                    Joseph E. Krakora, Public Defender, attorney for
                    respondent (Stefan Van Jura, Assistant Deputy Public
                    Defender, of counsel and on the brief).

PER CURIAM
      By leave granted, the State appeals from a February 11, 2019 order

granting defendant's motion for reconsideration, resulting in the court granting

defendant's motion to suppress evidence. Following our review of the record

presented to us, we summarily remand this matter to the Law Division for further

consideration based on State v. Williams, 192 N.J. 1 (2007).

                                       I

      We discern the following facts from the initial hearing on defendant's

motion to suppress. While on patrol on November 15, 2017, shortly after 9:00

p.m., Sgt. Carmen Hernandez of the Penns Grove Police Department heard a

radio report of "shots fired" from Officer Travis Paul, who was on patrol in a

local apartment complex. Officer Paul left the complex and drove onto South

Broad Street, in the direction where he heard the shots. Sgt. Hernandez drove

toward the complex from the other direction on South Broad Street, and within

one to five minutes of the radio report, she approached three males walking at a

location "about two blocks" from the complex. Sgt. Hernandez testified "hardly

anybody was in the area" other than these individuals, so she approached them

in response to the shots fired.

      Viewing the video from Sgt. Hernandez's body-worn camera, the Law

Division judge observed "that as soon as [Sgt.] Hernandez began approaching


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                                       2
the three men she said, 'Wait a minute. Don't leave yet.' She then detained the

men until back-up arrived, explaining that shots were fired 'close to this area.'"

The judge then found that when Officer Paul arrived, he

            exited his vehicle [and] saw . . . defendant attempting
            to walk away. The officer told him "I have to pat you
            down." . . . [D]efendant continued pacing and then took
            off running. Officer Paul and Officer Haslett, who had
            also arrived on location, pursued him. Officer Paul
            observed . . . defendant reach into his waistband and
            throw a gun to the ground. He apprehended . . .
            defendant, and the gun was located and seized.

      A grand jury indicted defendant, charging him with two counts of

possession of a weapon, N.J.S.A. 2C:39-4a(1) and N.J.S.A. 2C:28-6(1), one

count of obstruction, N.J.S.A. 2C:29-1a, and one count of tampering with

physical evidence, N.J.S.A. 2C:28-6(1). Defendant filed a motion to suppress

the evidence seized, arguing it was recovered subsequent to an unlawful

investigatory stop.

      On November 2, 2018, the Law Division issued a written opinion denying

defendant's motion to suppress. Since Sgt. Hernandez told the individuals to

remain until her backup arrived, the judge found they "reasonably perceived they

were not free to leave," and thus were subject to "an investigative detention."

However, considering "the totality of the circumstances to determine whether

reasonable suspicion existed," and giving "due weight to all inferences which

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                                        3
can be made from the specific and articulable facts present at the time of the

detention," (citing State v. Pineiro, 181 N.J. 13, 25-27 (2004)), the judge found

"there was a reasonable and articulable suspicion that one or more of these men

had engaged in or been part of the shots fired incident[,] and thus an

investigative detention was warranted." The judge determined that Officer

Paul's attempted pat-down was warranted, and concluded "that the action by the

police in this case was not unlawful."

       Lastly, the judge observed:

              [R]egardless of the ultimate determination as to the
              legality of the [Terry1] stop, the New Jersey Supreme
              Court has determined that a person must submit to a
              stop by police regardless of the lawfulness of the stop
              because the resistance and fleeing puts officers and the
              public at risk. State v. Crawley, 187 N.J. 440 (2006).
              The proper way to challenge a stop is in court. By
              fleeing the scene, defendant committed the offense of
              obstructing the administration of law. He discarded the
              weapon while in the course of committing that offense,
              not during the course of the investigative
              determination. Therefore, the weapon was lawfully
              recovered.

       Defendant filed a motion for the Law Division to reconsider its denial of

defendant's original motion to suppress the evidence seized. After the parties

submitted briefs and orally argued, the judge granted defendant's motion for


1
    Terry v. Ohio, 392 U.S. 1 (1968).
                                                                         A-3303-18T2
                                         4
reconsideration, resulting in the grant of "[d]efendant's motion to suppress

evidence, namely the handgun."

      The judge issued a written opinion in support of her decision to grant the

motion for reconsideration.       The judge stated that in his motion for

reconsideration,

            defense counsel argued that the court had relied on
            observations and circumstances that occurred after the
            men were detained to support the conclusion that the
            detention was lawful. . . . He further argued that at the
            moment [Sgt.] Hernandez ordered . . . defendant to
            wait, she had no basis to justify . . . defendant's
            detention. . . . I cannot disagree with defense counsel's
            assessment after further review of the testimony.

Since she "clearly had instructed them not to leave" immediately upon

approaching the individuals, the judge found Sgt. Hernandez "did not have a

reasonable and particularized suspicion that any of these men had just engaged

in or was about to engage in criminal activity."

      The judge then addressed the State's argument that Crawley "requires

denial of the motion to suppress notwithstanding the fact that the investigatory

stop was unlawful." The judge framed the issue in Crawley as "whether a

suspect can be convicted of the offense of obstruction under N.J.S.A. 2C:29 -1

if he flees the scene of an investigatory stop later found to be unconstitutional."

The judge observed the Supreme Court "emphasized the fact that an individua l

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                                        5
may not flee from police who are acting in good faith and under color of their

authority." See Crawley, 187 N.J. at 460-61 n.8. The judge then quoted the

Court's discussion of good faith:

            Among other things, good faith means "honesty in
            belief or purpose" and "faithfulness to one's duty or
            obligation." A police officer who reasonably relies on
            information from headquarters in responding to an
            emergency or public safety threat may be said to be
            acting in good faith under the statute. However, a
            police officer who without any basis arbitrarily detains
            a person on the street would not be acting in good faith.
            [. . .] [Good] faith is an objective, not a subjective,
            standard.

            [(quoting Ibid. (citation omitted) (second alteration in
            original))]

      Applying the facts to this definition, the judge found

            the complete absence of articulated facts to support
            [Sgt.] Hernandez'[s] decision to subject . . . defendant
            to an investigatory stop[,] indicat[ing] that she
            arbitrarily detained . . . defendant. The mere fact that
            shots were fired somewhere in the community does not
            authorize police officers to stop and detain every
            individual they encounter. Yet there is no question that
            . . . defendant was detained by [Sgt.] Hernandez simply
            because another officer heard shots fired somewhere in
            Penns Grove. . . .

                The Crawley decision does not stand for the
            proposition that the police may order anyone to stop
            without a reasonable articulable suspicion for doing so.
            The circumstances presented here are so devoid of any
            basis to conclude that an investigatory stop was

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                                       6
            warranted that the court declines to find that . . .
            defendant's flight from police is sufficient to overcome
            the constitutional deficiencies of the detention.

                                             II

      Police encounters with individuals generally occur at three distinct levels:

a field inquiry; an investigatory stop; and/or an arrest. State v. Nishina, 175 N.J.

502, 510-11 (2003). There are constitutional considerations at all levels of

encounters. Ibid.

      An investigative stop, often referred to as a Terry stop-and-frisk, does not

require probable cause to believe a person has committed or is about to commit

an offense. Id. at 510. Rather, "[a] police officer may conduct an investigatory

stop if, based on the totality of the circumstances, the officer ha[s] a reasonable

and particularized suspicion to believe that an individual has just engaged in, or

was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356

(2002) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)).

      We presume the investigatory stop in this case was unconstitutional. See

Williams, 192 N.J. at 10. Our reason for ordering a remand is that the judge's

decision on whether to deny the motion to suppress notwithstanding the

unlawful stop was guided entirely by Crawley, when Williams applies more

directly to the facts of this case. As the Court explained in Williams:


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                                         7
             In . . . Crawley, . . . we determined that a defendant
             commits the crime of obstruction if he disobeys a police
             command and flees from an investigatory stop--even an
             unconstitutional one. In this appeal, we must decide
             whether [the] defendant who resisted and fled from a
             presumed unconstitutional investigatory stop and who
             was later arrested for obstruction is entitled to
             suppression of the handgun seized incident to his lawful
             arrest.

             [Williams, 192 N.J. at 4.]

By focusing on the admissibility of the handgun as opposed to the criminality

of obstruction after an unlawful investigatory stop, we note that the Court in

Williams additionally analyzed "whether [the] evidence [was] sufficiently

attenuated from the taint of the constitutional violation . . . ." Id. at 15.

      The Court then provided the following guidance for cases like the one

under review:

                   In evaluating whether evidence is sufficiently
             attenuated from the taint of a constitutional violation,
             we look to three factors: "(1) the temporal proximity
             between the illegal conduct and the challenged
             evidence; (2) the presence of intervening
             circumstances; and (3) the flagrancy and purpose of the
             police misconduct."

             [Id. at 28-29 (quoting State v. Johnson, 118 N.J. 639,
             653 (1990)).]




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                                          8
In granting reconsideration, the judge did not specifically address these three

factors, and instead focused solely on "the constitutional deficiencies of the

detention."

      While fully explaining her reasons for concluding that Sgt. Hernandez

lacked a basis for conducting "an investigatory stop," the judge did not reject

her initial determination

              that the officer would have had a basis to make a field
              inquiry. Since "a field inquiry is voluntary and does
              not effect a seizure in constitutional terms, no particular
              suspicion of criminal activity is necessary on the part
              of an officer conducting such an inquiry." State v.
              Rosario, 229 N.J. 263, 272 (2017). In other words, Sgt.
              Hernandez certainly would have been justified in
              asking the men to talk to her about what they may have
              heard or seen.

      Under the circumstances, we conclude that a remand for further

consideration is appropriate, thereby allowing the motion judge to apply the

three factors cited in Williams to the facts of this case. We imply no view as to

what the judge should decide on remand, only that the judge's decision should

fully address the factors identified in Williams.

      Remanded. We do not retain jurisdiction.




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