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GUN POSSESSION CONVICTION TOSSED BECAUSE COPS FAILED TO FOLLOW THE LAW




Cops found guns on a guy and charged him with multiple felonies. He eventually took a plea deal and he was convicted for second-degree unlawful possession of a handgun.


The New Jersey Appellate Division has just tossed out the guilty plea and suppressed the evidence, all because the cops didn't follow the laws.


The following testimony was provided at the suppression motion hearing:


On September 11, 2019, Jersey City Police Department Sergeant Joemy Fernandez, then a police officer, and his partner, Mohamed Saheed, were assigned to the street crimes unit. At about 8:30 p.m., the officers received a notification from Lieutenant Mohammad Riaz "that he received information from a registered and reliable confidential informant (C.I.) that a male [was] in the area of Neptune and Ocean Avenue[s] wearing a multi-colored sweatsuit was in possession of a handgun."


The C.I. was registered because he was "known to [Riaz]," had been "used in the past," and had been "proven reliable." According to Fernandez, the area of Neptune and Ocean Avenue is a "high crime area" "prone to gun violence, gang violence, drugs, shootings, [and] robberies." On cross-examination, Fernandez testified that he was notified that a "black male" was in possession of the handgun. No other identifiers were provided.


Officer Macaluso, also working the night shift, was monitoring CCTV footage. Based on Macaluso's observations, officers were informed that a male matching the C.I.'s description was "leaving the area" and entering 116 Neptune Avenue. Fernandez responded to the area to "canvas" for the male. While traveling west on Neptune, Fernandez observed a male, wearing a multi-colored sweatsuit, and a female, wearing a black tank top and camouflage pants, leaving 116 Neptune Avenue. The male was later identified as Rodney E. Williams and the female was later identified as Alfreda Williams. 


Fernandez saw Rodney hold the door for Alfreda while engaged in a conversation with her. They walked east on Neptune. As they were walking east, the officers exited the patrol car. Fernandez stopped Rodney. Alfreda began walking away toward what appeared to be an alleyway, then quickly changed direction walking east on Neptune. She yelled out: "I'm not with him. I'm not with him," and continued to walk away.


Saheed then conducted a pat-down of Rodney. No weapons or contraband was found on him. Yet, the officers continued to detain defendant for a "short period, about a minute," because Fernandez found Alfreda's behavior to be "suspicious." He explained, Alfreda had not shown "concern" for Rodney. She also "quickly" walked in one direction away from him, "darted out" and walked in a different direction. Fernandez then explained he "continued to detain defendant for 'a short period of time,' [about four minutes], following the pat-down until Alfreda could be located because of her reaction when police arrived." Fernandez stated it was approximately "a minute" to "a minute and a half" between the time he stopped Rodney and when he received the radio call from Sergeant Jason Perez that Alfreda had been stopped.


Perez arrived fifteen to thirty seconds after Alfreda walked away from the officers and Rodney. He testified that his assistance was requested in a firearm investigation based on the radio call from Riaz. Rodney had already been stopped by Fernandez and Saheed when he arrived. Fernandez described Alfreda to Perez and told him that she had been with Rodney and had walked off toward Ocean Avenue.


Perez drove toward Ocean Avenue to locate Alfreda for further investigation. Initially, he traveled south on Ocean Avenue, where he saw a group of females, but none matched Fernandez's description. Perez then turned around and headed north on Ocean Avenue.


Eventually, Perez found Alfreda walking west on Bartholdi Avenue. Alfreda was walking with a "young juvenile Hispanic male, wearing a camouflage tank top and camouflage shorts, and a blue drawstring bag on his back." Perez described the bag as a "thin nylon bag" with "thin strings" worn around a person's shoulders, commonly used to carry "like a basketball." 


Perez was about one car length away from Alfreda and juvenile when he saw them in an area lit by streetlights. As Perez approached, he noticed the juvenile's "bag was extremely weighted down by an object, and…there was…a 90-degree outline that appeared to be a handgun." Perez believed the object was a handgun based on its outline and his training and experience. So, Alfreda and the juvenile were stopped and frisked. During the pat-down of the outside of the juvenile's bag, Perez determined the object was metal and immediately recognized it as a handgun. The juvenile was placed under arrest. Perez did not search inside the bag. Eventually, Perez recovered a 9-millimeter Hi-Point handgun from the bag and placed it in his vehicle for safekeeping before it was transported for processing. 


After Perez arrested the juvenile, Alfreda spontaneously stated, "No, it's not his. It's–I gave it to him. It's my boyfriend's gun" or "The male that you have stopped's (sic) gun." Perez made a radio call to Fernandez and advised that he located the handgun and that Alfreda said Rodney had given her the gun. 


Fernandez placed Rodney under arrest and transported him to Perez's location. Fernandez confirmed Alfreda's identity. Alfreda spontaneously restated that the gun was not the juvenile's and it belonged to Rodney, who had given it to her to hold. Alfreda further stated that she had held the gun "in her bra or shirt and that she placed it in a bag."


By indictment, Rodney was charged with second-degree unlawful possession of a handgun; second-degree certain persons; fourth-degree unlawful possession of hollow point bullets; and third-degree receiving stolen property.


Rodney filed a motion to suppress the handgun, arguing that there was no reasonable suspicion for the stop and frisk. On January 14, 2022, the trial judge denied the motion.


First, the trial judge found there was reasonable suspicion to stop and frisk based on the description provided by a tip from the C.I. and the "basis of knowledge" obtained by an officer viewing CCTV footage. The judge further found that "due to the nature of the offense, there was reasonable suspicion to warrant the frisk for protection of the officer." Therefore, "under the totality of circumstances, both the stop and pat-down were valid."


Second, the trial court determined there was reasonable cause to detain him after the investigative stop and pat-down. The court explained, "[w]hile the resulting search [of defendant] did not produce weapons or contraband, there was reasonable suspicion to continue to detain him due to the CI tip, confirmation of his presence in the relevant location, in a high crime area, and the behavior of co-defendant." The judge concluded, "considering the totality of the circumstances, the facts . . . supported a finding of reasonable and articulable suspicion." 


Following the denial of his motion to suppress, defendant pleaded guilty to second-degree unlawful possession of a handgun.


He also appealed the denial of his motion to suppress, contending the court erred in denying the suppression motion because he was unlawfully detained after the pat-down did not produce weapons or contraband.


In a written ruling just released, Appellate Division Judges Gilson and Bishop-Thompson agreed.


The Fourth Amendment to the United States Constitution and the New Jersey Constitution protect the right of individuals from unreasonable searches and seizures.


"To justify a warrantless search or seizure, 'the State bears the burden of proving by a preponderance of the evidence that [the] warrantless search or seizure falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Vanderee.


Critical to our inquiry is the nature and scope of the officers' initial encounter with defendant and the subsequent detention. Under the federal and New Jersey constitutions, the police may stop and frisk a person if they have reasonable suspicion that evidence of criminal activity or a weapon may be found on that person. Terry v. Ohio, State v. Smith. 


The standard of reasonable suspicion is less rigorous than probable cause to warrant an arrest. Terry. "However, an officer's hunch or subjective good faith—even if correct in the end—cannot justify an investigatory stop or detention." State v. Shaw.


The Terry stop, or an investigative stop, "involves a relatively brief detention by police during which a person's movement is restricted." State v. Goldsmith. An investigative stop or 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. Rodriquez. 


During an investigative stop, a police officer may conduct a protective search or pat-down without a warrant when the officer believes the individual detained is armed and dangerous. Terry.


An officer is permitted "'to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.'" In other words, an officer may "conduct 'a carefully limited search of the outer clothing'" to determine whether weapons are present. Like an investigatory stop, "to conduct a protective search, an officer must have a 'specific and particularized basis for an objectively reasonable suspicion that defendant was armed and dangerous.'" State v. Roach.


"Determining whether reasonable and articulable suspicion exists for an investigatory stop is a highly fact-intensive inquiry that demands evaluation of 'the totality of circumstances surrounding the police-citizen encounter, balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions.'" The inquiry "takes into consideration numerous factors, including officer experience and knowledge." Goldsmith.


Applying these principles, we conclude the trial judge erred in finding the officers had a reasonable suspicion that defendant had a handgun to justify the stop and, in turn, the frisk.


We view the reliability of the tip from a C.I. under a totality of circumstances test. An informant's tip, though hearsay, may be considered "'so long as a substantial basis for crediting [it] is presented." Two factors which are "essential" in establishing the credibility of an informant's tip are the "informant's 'veracity' and . . . 'basis of knowledge.'" Veracity is established by "demonstrating that the informant proved to be reliable in previous police investigations." An informant's basis of knowledge is demonstrated when "the tip itself relates expressly or clearly how the informant knows of the criminal activity." State v. Sullivan, State v. Smith


Here, the judge determined the officers had reasonable suspicion to detain defendant based on the tip from the C.I. As to the C.I.'s veracity, Fernandez made a generalized statement that the C.I. had "proven reliable" because he was "known to Riaz" and nothing more. Absent from the record is any testimony regarding the length of the C.I.'s relationship with Riaz or if the prior tips were fruitful. 

Regarding the C.I.'s "basis of knowledge," all that was relayed by the C.I. to Riaz was that the suspect was "male" wearing a "multi-colored sweatsuit." The tip was silent to any other detailed identifiers. This information alone "[did] not show that the [C.I.] had knowledge of concealed criminal activity." State v. Rosario.


Additionally, the record is silent as to how the C.I. came into possession of the information that defendant possessed a handgun. "Without knowing the facts that led the informant to believe defendant was engaged in illegal activity, we cannot make an independent determination of whether that conclusion was reasonable." State v. Smith


The sex and clothing identifiers, even if corroborated by Macaluso's observation, were not indicative of criminal activity. We hold that neither the C.I. tip nor Macaluso's observation was a "reliable source of information" to satisfy the basis of knowledge factor. These facts, individually or cumulatively, were insufficient to establish an objectively reasonable suspicion that defendant possessed a handgun.


We similarly conclude the trial judge erred in finding the officers had reasonable and articulable suspicion to detain defendant based on his presence in the high crime area and Alfreda's behavior. Though the trial judge may consider defendant was within the "high crime area" of Neptune and Ocean Avenues, our Supreme Court "has held that 'just because a location to which police officers are dispatched is a high-crime area does not mean that the residents in that area have lesser constitutional protection from random stops.'" State v. Goldsmith.


Furthermore, Fernandez's experience that Alfreda's behavior was suspicious, and Perez's "hunch" the juvenile's drawstring bag contained a gun, which proved correct, did not justify defendant's on-going detention. State v. Shaw.


When the officers did not find the handgun on defendant, he should have been immediately free to leave. The intervening search for Alfreda, discovery of the handgun, and Alfreda's spontaneous utterances do not "purge the taint" from the eventually-discovered handgun. Defendant's arrest based on possession of the handgun stemmed from the unlawful detention. Accordingly, the evidence must be suppressed, and the guilty plea is vacated because of the likelihood defendant would not have pleaded guilty if he knew the evidence seized was suppressed.


Assistant Deputy Public Defender Stefan Van Jur represented Rodney Williams in this matter.


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