                                NOT FOR PUBLICATION WITHOUT THE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-1442-17T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ROBERT O. GOODSON, a/k/a
BOBBY EARLY, and BOBBY
GOODSON,

     Defendant-Appellant.
_________________________

                   Argued October 30, 2019 – Decided December 3, 2019

                   Before Judges Koblitz, Whipple and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 16-11-0780.

                   Zachary G. Markarian, Assistant Deputy Public
                   Defender, argued the cause for appellant (Joseph E.
                   Krakora, Public Defender, attorney; Zachary G.
                   Markarian, of counsel and on the brief).

                   Milton S. Leibowitz, Special Deputy Attorney General/
                   Acting Assistant Prosecutor, argued the cause for
                   respondent (Lyndsay V. Ruotolo, Acting Union County
            Prosecutor, attorney; Milton S. Leibowitz, of counsel
            and on the brief).

            Appellant filed a pro se supplemental brief.


PER CURIAM

      Defendant Robert O. Goodson appeals from his October 27, 2017

conviction after his motion to suppress the evidence was denied. Because the

facts track very closely with those in State v. Rosario, 229 N.J. 263 (2017), we

reverse, suppressing the evidence found in defendant's car and home, vacating

his guilty plea, and remanding for further proceedings.

                I. Facts Developed at the Suppression Hearing.

      On August 6, 2016, Plainfield Detective Pierre McCall and three other

officers were traveling in a police SUV, which, although unmarked, was a "well

known police vehicle," equipped with lights and sirens. At approximately 9:00

pm, on the "hot night," the officers turned onto Sumner Avenue, a narrow

residential street known to law enforcement as a "high crime narcotic area."

      Immediately after turning, they "observed a brown Honda parked on the

west side of the street, facing southbound." The Honda was lawfully parked

outside of defendant's residence and was "occupied by a black male," later

identified as defendant, who was "sweating heavily." McCall testified that as


                                                                       A-1442-17T4
                                       2
the officers passed defendant's car, "it appeared that he leaned back to shield

himself out of our view." The officers then "backed up alongside [defendant's

car]."

         McCall and another officer shined their "really bright" LED flashlights

inside, and McCall asked defendant "his reason for being in the area."

Defendant told the officers that he came out to the car to retrieve a tablet.

McCall "believed there was more to it" because he could not see the tablet from

where he was seated in the police SUV, so he stepped out of the SUV and

approached defendant's driver's side door, shining his flashlight into the car.

McCall asked defendant his address and defendant responded that he lived

where he was parked.

         McCall could see a clear plastic baggie containing a green pill on the

driver's side door armrest. He reached inside the car to retrieve the pill and

ordered defendant out. As defendant exited, another officer smelled marijuana

and asked defendant if he had any marijuana.         Defendant replied he had

marijuana in his pocket. Meanwhile, a third officer searched the car, finding a

container of pills and heroin.




                                                                        A-1442-17T4
                                        3
       McCall placed defendant under arrest, handcuffed him, read him the

Miranda1 warnings, and asked if defendant would consent to a search of his

home. Defendant refused to provide consent. McCall then informed defendant

he would obtain a warrant.

       Another police SUV arrived containing four additional officers.

Defendant's child's grandmother left the home, and an officer began to question

her. Defendant then said he did not want anyone else involved and would

consent to a search of the home.

       Because defendant had a foot injury and thus did not want to accompany

officers to his third-floor apartment, he provided them with his keys and

instruction. The officers recovered additional narcotics, paraphernalia, and a

handgun. Defendant was subsequently indicted for various drug charges as well

as illegal possession of the handgun.

       Defendant pled guilty pursuant to a negotiated plea agreement to second-

degree possession of a firearm in the course of committing a drug offense,

N.J.S.A. 2C:39-4.1(a), and was sentenced on October 27, 2017, to eight years in

prison with a forty-eight month parole disqualifier.

       Defendant raises the following issues on appeal:


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                       A-1442-17T4
                                        4
POINT I: THE COURT SHOULD HAVE APPLIED
THE SUPREME COURT'S DECISION IN STATE V.
ROSARIO AND GRANTED THE MOTION TO
SUPPRESS BECAUSE MR. GOODSON WAS
DETAINED WITHOUT REASONABLE SUSPICION
AFTER OFFICERS SAW HIM SITTING IN A
LAWFULLY PARKED VEHICLE OUTSIDE OF HIS
HOME SWEATING ON A HOT SUMMER
EVENING.

A.  MR. GOODSON WAS DETAINED WHEN
OFFICERS STOPPED THEIR SUV IN THE ROAD
ALONGSIDE HIS PARKED VEHICLE AND
QUESTIONED     HIM    WHILE     SHINING
FLASHLIGHTS AT HIM.

B.  OFFICERS     LACKED   REASONABLE
ARTICULABLE SUSPICION OF CRIMINAL
ACTIVITY TO JUSTIFY THE INVESTIGATIVE
DETENTION OF MR. GOODSON.

C. BECAUSE THE INVESTIGATIVE DETENTION
WAS UNLAWFUL AND NO EXCEPTION TO THE
EXCLUSIONARY     RULE    APPLIES,   THE
CONTRABAND SUBSEQUENTLY DISCOVERED
BY THE OFFICERS MUST BE SUPPRESSED.

POINT II:  BECAUSE MR. GOODSON WAS
ARRESTED,    HANDCUFFED,     INITIALLY
REFUSED CONSENT, AND DENIED GUILT, AND
THERE WAS AN OVERWHELMING POLICE
PRESENCE OUTSIDE HIS HOME WHEN POLICE
REPEATEDLY REQUESTED CONSENT, MR.
GOODSON'S CONSENT WAS NOT VOLUNTARY.

POINT III: A REMAND FOR RESENTENCING IS
REQUIRED BECAUSE THE JUDGE FAILED TO
INDIVIDUALLY CONSIDER MR. GOODSON AT

                                           A-1442-17T4
                   5
            SENTENCING, AND INSTEAD APPLIED A
            BLANKET POLICY OF FINDING AGGRAVATING
            FACTOR NINE IN EVERY CASE.

                              II. Legal Standards.

      "An appellate court reviewing a motion to suppress evidence in a criminal

case must uphold the factual findings underlying the trial court's decision,

provided that those findings are 'supported by sufficient credible evidence in the

record.'" State v. Boone, 232 N.J. 417, 425–26 (2017) (quoting State v. Scriven,

226 N.J. 20, 40 (2016)). It does so "because those findings 'are substantially

influenced by [an] opportunity to hear and see the witnesses and to have the

"feel" of the case, which a reviewing court cannot enjoy.'" State v. Gamble, 218

N.J. 412, 424–25 (2014) (alteration in original) (quoting State v. Johnson, 42

N.J. 146, 161 (1964)). We owe no deference to conclusions of law, which we

review de novo. State v. Watts, 223 N.J. 503, 516 (2015).

      The Fourth Amendment of the United States Constitution, and Article I,

Paragraph 7 of the New Jersey State Constitution, provide that "[t]he right of

the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated." U.S. Const. amend.

IV; N.J. Const. art. I, ¶ 7. "Warrantless searches and seizures presumptively

violate those protections, but '[n]ot all police-citizen encounters constitute


                                                                         A-1442-17T4
                                        6
searches or seizures for purposes of the warrant requirement.'" Rosario, 229

N.J. at 271 (alteration in original) (citation omitted) (quoting State v. Rodriguez,

172 N.J. 117, 125 (2002)).

      One such encounter is a field inquiry, "a voluntary encounter between the

police and a member of the public in which the police ask questions and do not

compel an individual to answer." Ibid. "The test of a field inquiry is 'whether

[a] defendant, under all of the attendant circumstances, reasonably believed he

could walk away without answering any of [the officer's] questions.'" Id. at

271–72 (alteration in original) (quoting State v. Maryland, 167 N.J. 471, 483

(2001)).

      "In contrast to a field inquiry, an investigative detention . . . occurs during

a police encounter when 'an objectively reasonable person' would feel 'that his

or her right to move has been restricted.'" Id. at 272 (quoting Rodriguez, 172

N.J. at 126); see also United States v. Mendenhall, 446 U.S. 544, 554 (1980)

(plurality opinion) (holding that a person is seized for Fourth Amendment

purposes when, "in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave"). The

crucial distinction is that while a field inquiry does not constitute a seizure for

the purposes of the federal and state constitutions, and thus requires no


                                                                            A-1442-17T4
                                         7
particularized suspicion of criminal activity, an investigative detention must be

supported by an officer's "reasonable and particularized suspicion . . . 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)). An officer's "reasonable and particularized suspicion" should be "based

on the totality of the circumstances." Ibid. An officer's subjective, good-faith

hunch does not justify an investigatory stop, even if that hunch proves correct.

See State v. Arthur, 149 N.J. 1, 8 (1997).

       "The United States Supreme Court has defined reasonable suspicion as 'a

particularized and objective basis for suspecting the person stopped of criminal

activity.'" Stovall, 170 N.J. at 356 (quoting Ornelas v. United States, 517 U.S.

690, 696 (1996)). "In justifying an investigatory detention based on reasonable

suspicion, a police officer must 'be able to articulate something more than an

"inchoate and unparticularized suspicion or hunch."'" Id. at 357 (quoting United

States v. Sokolow, 490 U.S. 1, 7 (1989)).

                              III. The Car Search.

       As was the case in Rosario, "[t]he key issue in this case lies in the

distinction between a field inquiry and an investigative detention." 229 N.J. at

272.   Here, defendant was sitting in his lawfully parked car on a narrow,


                                                                         A-1442-17T4
                                        8
residential street directly outside of his home when a police SUV containing

four officers drove by him before backing up to stop alongside his car. The

officers shined bright LED flashlights at defendant and into his car, before

asking him what he was doing. After defendant said he lived there, and was

fetching a reading tablet, one of the officers left the SUV to approach defendant,

flashlight in hand, while another's flashlight also remained on defendant and his

car.

       In Rosario, an officer pulled up to and parked his car behind the

defendant's car at a perpendicular angle, effectively blocking the defendant's car

from leaving. Id. at 268. The patrol car's "alley light" was aimed at the parked

car. Ibid. The officer then approached the car, asking for the defendant's

"identification and driver's license." Ibid. Our Court found those circumstances

constituted an investigative detention requiring reasonable and articulable

suspicion. Id. at 273.

       The Court rejected the argument that "because [the] defendant was right

outside her residence, she could have left her vehicle, walked away from [the

officer], and entered her home." Ibid.; see also Rodriguez, 172 N.J. at 129 ("[A]s

a practical matter, citizens almost never feel free to end an encounter initiated

by the police."). "[S]uch police activity reasonably would, and should, prompt


                                                                         A-1442-17T4
                                        9
a person to think that she must stay put and submit to whatever interaction with

the police officer was about to come." Rosario, 229 N.J. at 273.

      The State did not negate that defendant here was blocked in by the police

SUV, with other cars parked ahead and behind it. A reasonable person would

not have felt free to leave under these circumstances when a police SUV backed

up to stop alongside his car on a narrow residential street. "Our case law

instructs members of the public to submit to a police officer's show of authority,

not to look for an exit." Id. at 274–75. "Case law tells people to obey words

and deeds of law enforcement that communicate demands for directed behavior

and to raise constitutional objections thereafter." Id. at 275.

      The moment Detective McCall stepped out of his SUV, flashlight in hand,

supported by the three other officers, no reasonable person would have felt free

to leave, and such an intrusion on an individual's liberty requires more than an

officer's subjective belief or hunch. See State v. Coles, 218 N.J. 322, 343

(2014).

      As our Supreme Court stated,

            [a] person sitting in a lawfully parked car outside [his
            or] her home who suddenly finds [himself or] herself
            blocked in by a patrol car that shines a flood light into
            the vehicle, only to have the officer exit his [or her]
            marked car and approach the driver's side of the
            vehicle, would not reasonably feel free to leave.

                                                                         A-1442-17T4
                                       10
               [Rosario, 229 N.J. at 273.]

That is almost precisely what occurred here. Thus, "defendant was faced with

an investigative detention" and we must consider "whether, based on a totality

of the circumstances, the encounter was 'justified at its inception' by a reasonable

and articulable suspicion of criminal activity." Id. at 276 (quoting Terry, 392

U.S. at 20).

      Being in a high-crime area, as here, is relevant in the totality of the

circumstances analysis.      See State v. Pineiro, 181 N.J. 13, 22–27 (2004)

(reviewing precedent).      We have, however, "rejected the notion that mere

presence in an area known for its drug activity" in and of itself justifies

reasonable suspicion. State v. Dangerfield, 339 N.J. Super. 229, 238 (App. Div.

2001), aff'd as modified, 171 N.J. 446 (2002).

      No compounding indicia of criminal activity existed and defendant was

not known to the officers. Defendant's presence in a high-crime area alone did

not amount to reasonable suspicion. As we stated in similar circumstances, if

that were so, "a significant portion of our urban population would be susceptible

to constant police investigation. In our view that is an entirely unacceptable

proposition." State v. Stampone, 341 N.J. Super. 247, 252 (App. Div. 2001).




                                                                           A-1442-17T4
                                         11
      The fact that defendant was sweating on an August evening is also not

significant. See Arthur, 149 N.J. at 10–11. Detective McCall's perception that

defendant leaned back as the officers passed him in an effort to hide himself is

also not significant; again, Rosario is instructive. There, our Court recognized

the long-standing distinction between furtive movements made during the

course of a legitimate detention, which might give rise to "a reasonable suspicion

that the person may be armed and dangerous or probable cause . . . that the

person possesses criminal contraband," Rosario, 229 N.J. at 277 (quoting State

v. Lund, 119 N.J. 35, 48 (1990), and the use of furtive movements to support a

detention "in the first instance," ibid. The Court stated: "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.'" Ibid. (alteration in original) (quoting Lund, 119 N.J. at 47).

      Even if Detective McCall's perception that defendant leaned back into his seat

to avoid notice were true, absent other circumstances indicating criminal activity,

defendant's actions were merely a "common response[] to [an] unanticipated

encounter[] with police officers on the road." Ibid. Like the defendant’s movements




                                                                             A-1442-17T4
                                       12
in Rosario, that is, "'scuffling around' and leaning toward the passenger seat, " ibid.,

defendant's observed action is insufficient to generate articulable suspicion.

      Last, McCall's inability to see the tablet was not a basis for reasonable suspicion.

On the stand, McCall admitted the tablet might well have not been visible from his

position in the police SUV, whether it was out of view in the passenger compartment,

or out of sight in a backpack or the glove compartment. Again, this is a purely innocent

fact absent the "objectively reasonable belief that the collective circumstances are

consistent with criminal conduct" sufficient to support reasonable suspicion. State v.

Nishina, 175 N.J. 502, 511 (2003). The law enforcement officers had no reasonable

and articulable suspicion of criminal activity at the time they initiated the investigative

detention of defendant, and thus the encounter was an unlawful infringement of

defendant's constitutional rights.

      Because McCall was not lawfully in the viewing area when he saw the

green pill in the vehicle, the plain view exception to the warrant requirement

does not apply. The "plain view doctrine requires the police officer to lawfully

be in the viewing area." State v. Johnson, 171 N.J. 192, 206 (2002). McCall

should not have blocked in defendant's car and approached it on foot. See State

v. Keaton, 222 N.J. 438, 450 (2015) (finding that "items discovered in

defendant's car do not fall within the plain view doctrine, and were illegally


                                                                            A-1442-17T4
                                        13
seized, because the trooper was not lawfully within the viewing area at the time

of the contraband's discovery"). Thus, the evidence obtained from defendant's

person and car must be suppressed.

                     IV. The Search of Defendant's Home.

       In Rodriguez, our Court firmly held that where a defendant was

unlawfully detained, "the stop's illegality void[ed] [the] defendant's subsequent

consent to search and, as a result, the fruits of the warrantless search must be

suppressed." 172 N.J. at 133. "In view of our conclusion that the officers lacked

a sufficient basis to detain defendant, we need not evaluate whether his consent

to the search was voluntary. The illegal detention voids the consent." Id. at

132.

       The State argues that the attenuation doctrine applies.         Where the

connection between the unlawful police conduct and the seizure is "so attenuated

as to dissipate the taint" from the unlawful conduct, the evidence need not be

excluded. Brown v. Illinois, 422 U.S. 590, 609 (1975); see also State v. Badessa,

185 N.J. 303, 311 (2005). The factors for determining attenuation are: "(1) 'the

temporal proximity' between the illegal conduct and the challenged evidence;

(2) 'the presence of intervening circumstances'; and (3) 'particularly, the purpose

and flagrancy of the official misconduct.'" State v. Shaw, 213 N.J. 398, 415


                                                                          A-1442-17T4
                                       14
(2012) (quoting Brown, 422 U.S. at 602–04). The burden of demonstrating

attenuation rests on the State. Brown, 422 U.S. at 604.

      With regard to the first factor, the time period here was mere minutes, and

the link explicitly clear. See Shaw, 213 N.J. at 416. As the Court recognized,

"[i]n cases where a confession or consent to search follows shortly after an

unlawful stop, the brevity of the interval ordinarily will work against the State."

Ibid. "[T]he closeness in time between the two may lend credence to the

argument that an unlawful detention was exploited to extract a confession or

consent from a suspect." Ibid.

      With regard to the second factor, the presence of intervening

circumstances, it is axiomatic that "[a] consent to search that is attributable to

police misconduct involving the violations of constitutional rights may be

regarded as the product of that unconstitutional conduct and an invalid basis on

which to justify a search." State v. Smith, 155 N.J. 83, 101 (1998).

      The third factor looks to the purpose and flagrancy of the official

misconduct. Shaw, 213 N.J. at 420. While no evidence suggests the police

purposefully violated defendant's constitutional rights, violations of "[t]he right

of freedom of movement without unreasonable interference by government

officials . . . weigh[] most heavily against the State." Id. at 421.


                                                                          A-1442-17T4
                                        15
      As the State has failed to demonstrate "the connection between the

unconstitutional police action and the [secured] evidence[s] [was] 'so attenuated

as to dissipate the taint' from the unlawful conduct," the evidence seized from

defendant's home must also be suppressed. Badessa, 185 N.J. at 311 (quoting

Murray v. United States, 487 U.S. 533, 536 (1988)). Because we reverse the

order denying defendant's motion to suppress the evidence seized from his car

and home, we vacate defendant's guilty plea.

      Reversed. Remanded for further proceedings consistent with this opinion.

We do not retain jurisdiction.




                                                                        A-1442-17T4
                                      16
