STATE v. LEE

The opinion of the court was delivered by

FUENTES, J.A.D., dissenting.

Few issues have torn at the fabric of our State's justice system like racial profiling, the police-practice of stopping, detaining and interrogating motorists on our highways, merely because of the color of their skin. Despite the outcry from those who had been directly affected by this infamous practice, history shows that local law enforcement authorities were unable or unwilling to confront this problem. It took the intervention and coercive power of the United States Department of Justice before any meaningful reforms were implemented.

Defendant Calvin Lee, an African American man, has filed a post-conviction relief ("PCR") petition alleging that the police employed this unconstitutional, discriminatory tactic to obtain the evidence supporting his conviction for possession of illicit drugs. As a threshold matter, defendant sought an order of discovery from the trial court. State v. Ballard, 331 N.J.Super. 529, 542-43, 752 A.2d 735 (App.Div. 2000).

For the purpose of deciding whether defendant is entitled to this discovery, both the trial court and my colleagues in the majority have assumed that defendant can ultimately establish that the police's conduct was indeed motivated by racial bias. Despite this remarkable concession, the majority, adopting the trial court's reasoning, concludes that the drug evidence is otherwise admissible, because "the acts of the defendants outweigh . . . any discriminatory act that may have started the incident." I respectfully disagree, and therefore dissent.

Before addressing the relevant legal issues, I will briefly describe the salient facts. The trial court gave the following account of what occurred after the police stopped defendant's car:

In response to the actions Mr. Lee allegedly looked behind him and started to make furtive motions inside the vehicle, began reaching between the two seats and appeared to be fumbling with something. The truck did not pull over to the side of the road but continued westward for about a mile before stopping in the lane of the exit ramp. After the vehicle stopped Trooper Mayer positioned herself at the right front of the police vehicle as did Trooper Parisi and drew near to the vehicle. Calvin Lee made eye contact with him and closed his window and lit a cigarette and began speaking to the driver. Upon request Mr. Calvin Lee opened his window and Parisi requested Ricky Lee's driver's license and vehicle registration. He could not produce either and he could not even tell the troopers to whom the vehicle belonged.

Parisi noticed that the key in the ignition was a single key with a small yellow tag attached to it. Suspecting the vehicle may have been stolen, Parisi asked to see the key and the key was relinquished and as that occurred Calvin Lee made a quick movement to the area between the seats. Parisi orders the occupants to place their hands on the dashboard. Both complied but Calvin Lee becomes verbally abusive and attempts to reach between the seats again. The trooper draws his weapon, orders them to return to their respective seats.

Both defendants then attempted to exit the vehicle and were told to return to the vehicle. The driver proceeded to put the car in gear and drive as Calvin again was reaching between the seats. Trooper Parisi then puts his weapon to Calvin Lee's temple. Parisi informs the defendants they are under arrest. The driver then runs from the truck and simultaneously Calvin grabs Parisi's gun and pulls him into the vehicle. After a struggle Calvin flees on foot into a wooded area.

Parisi returns to the truck, looks between the seat for the weapon. Parisi doesn't find a weapon but finds a brown bag containing 11.48 ounces of cocaine and 18.31 ounces of marijuana. After the incident Calvin Lee was apprehended by State Police Sergeant Palumbo who brings him back to the scene and Parisi identifies him as the passenger of the vehicle and his fingerprints were later found on the truck.

Against this factual backdrop, the trial court framed the issue as to the admissibility of the drug evidence as follows:

The issue is whether or not [the conduct of defendant and his co-defendant] represents a sufficient break in the chain between the discretionary [unconstitutional] stop made by the police and their intervening acts.

Thus, applying this analytical construct to the facts of this case, the court reached the following conclusion:

[I]f the defendants, so to speak, sat on their hands, they would have had appropriate remedies due to racial profiling constitutional violations of the Fourth and Fifth Amendments to have that evidence excluded. They chose, however, not to do that. Their acts are independent I find of the original basis for the stop and the discovery of the item was a result of additional police actions that were not discriminatory in nature post-stop but rather based on what the police officers learned from their further investigations after the intervening acts of the defendants and the need to search that vehicle because of what was going on at the scene.

[Emphasis added.]

Stated differently, the trial court conceded that "but for" defendant's actions after the illegal stop, the drug evidence would have been excluded as the fruits of the initial unconstitutional and racially motivated stop. According to the trial court, the intervening event purges the taint from the drug evidence by creating an independent basis to sustain the prosecution of the drug charges.

The principle flaw in this analysis lies in a misapprehension of the public policy underpinning the exclusionary rule. This threshold error led to a misapplication of the "attenuation doctrine" line of cases. State v. Badessa, 185 N.J. 303, 885 A.2d 430 (2005); State v. Johnson, 118 N.J. 639, 573 A.2d 909 (1990); State v. Battle, 256 N.J.Super. 268, 606 A.2d 1119 (App.Div.), certif. denied, 130 N.J. 393, 614 A.2d 616 (1992); State v. Casimono, 250 N.J.Super. 173, 593 A.2d 827 (App.Div. 1991), certif. denied, 127 N.J. 558, 606 A.2d 370, cert. denied, 504 U.S. 924, 112 S.Ct. 1978, 118 L.Ed.2d 577 (1992).

As the Supreme Court recently reaffirmed:

The primary purpose of the exclusionary rule "is to deter future unlawful police conduct" by denying the prosecution the spoils of constitutional violations. The exclusionary rule also "advances the `imperative of judicial integrity' and removes the profit motive from `lawless behavior.'"

Under the rule, the State is barred from introducing into evidence the "fruits" of an unlawful search or seizure by the police. . . . Even evidence indirectly acquired by the police through a constitutional violation is subject to suppression.

[ State v. Badessa, supra, 185 N.J. at 310-11, 885 A.2d 430 (emphasis added) (citations omitted).]

At the heart of racial profiling is the assumption that a person's race is a per se indication of criminality. This type of pernicious myth was not only invalid from a law enforcement perspective, but also served to further weaken the fragile confidence racial and ethnic minorities have had in the fairness of our justice system.

It is now undeniable, that for years, racial profiling was a de facto part of law enforcement tactics on our State's highways. State v. Ballard, supra, 331 N.J.Super. at 546-48, 752 A.2d 735. It was considered a standard operating procedure by troopers in the field and practiced without fear of reprisal, because it was condoned, if not encouraged outright, by the State Police hierarchy. See N.J. Office Of The Attorney General, Interim Report of the State Police Review Team Regarding Allegations Of Racial Profiling (April 20, 1999).

For those who have directly experienced this type of insidious abuse of police power, the resulting emotional trauma cannot be overstated. It provided concrete evidence that, despite the dismantling of the legal institutions supporting centuries of disparate treatment, the goal of eradicating racist practices remained illusory.

The harm caused by racial profiling, however, is not limited to the impact on its victims. When the coercive power of government is deliberately misused to target a historically discriminated class of citizens, the entire structure of our criminal justice system is undermined. This type of police misconduct, therefore, demands strict and unequivocal condemnation. It is, in my judgment, a profound and flagrant attack on justice itself, and a violation of the Equal Protection guarantees of the Fourteenth Amendment.

As noted earlier, the express purpose of the exclusionary rule is to deny the State the fruits obtained as a direct result of police misconduct. The practice of racial profiling was designed and intended to circumvent constitutional protections of individualized suspicion, as a means to unlawfully procure evidence. It must be emphasized, that the detection and apprehension of drug traffickers on our State's highways was the rationale for the practice of racial profiling. The police stopped minority motorists based on the unreasonable expectation that there was a probability that contraband would be found in their vehicles. Thus, the direct or indirect discovery of illicit drug evidence was precisely the fruit sought from the poisonous tree of racial profiling.

Here, for purposes of this discovery motion, both the trial court and my colleagues in the majority concede that defendant and his companion were subject to a racially motivated stop. Based on this undisputed fact, the exclusionary rule would mandate the suppression of any evidence discovered, directly or indirectly, as a result of this constitutional violation.

The majority relies on the "attenuation doctrine" to avoid reaching this otherwise ineluctable result. No published opinion in this State has examined the attenuation doctrine in the context of a racial profiling case. State v. Badessa, supra, 185 N.J. at 311-15, 885 A.2d 430 (fourth amendment unconstitutional motor vehicle stop); State v. Johnson, supra, 118 N.J. at 650-51, 573 A.2d 909 (fifth amendment Miranda violation); State v. Domicz, 377 N.J.Super. 515, 529-30, 873 A.2d 630 (App.Div.), certif. granted, 185 N.J. 268, 883 A.2d 1064 (2005) (fourth amendment warrantless search of defendant's home); State v. Pante, 325 N.J.Super. 336, 346-47, 739 A.2d 433 (App.Div. 1999), certif. denied, 163 N.J. 76, 747 A.2d 285 (2000) (fifth amendment Miranda violation); State v. Worthy, 273 N.J.Super. 147, 155-56, 641 A.2d 282 (App.Div. 1994), aff'd, 141 N.J. 368, 661 A.2d 1244 (1995) (violation of New Jersey Wiretapping and Electronic Surveillance Control Act); State v. Garland, 270 N.J.Super. 31, 48, 636 A.2d 541 (App.Div.), certif. denied, 136 N.J. 296, 642 A.2d 1005 (1994) (fourth amendment Terry violation); State v. Stelzner, 257 N.J.Super. 219, 233-34, 608 A.2d 386 (App.Div.), certif. denied, 130 N.J. 396, 614 A.2d 619 (1992), (fourth amendment warrantless search of telephone records); State v. Casimono, supra, 250 N.J.Super. at 178-79, 593 A.2d 827 (fourth amendment Terry violation).

In Badessa, the Supreme Court examined the attenuation doctrine. The Court considered whether evidence gathered by the police after an unconstitutional motor vehicle stop should have been excluded in a prosecution for refusal to submit to a breathalyzer test. State v. Badessa, supra, 185 N.J. at 310-11, 885 A.2d 430. In so doing, the Court explained that:

[T]he exclusionary rule will not apply when the connection between the unconstitutional police action and the evidence becomes "`so attenuated as to dissipate the taint'" from the unlawful conduct. In those circumstances, withholding from the finder of fact relevant evidence far removed from the constitutional breach is a cost not justified by the exclusionary rule. Under both federal and state law, courts must determine whether law enforcement officials "have obtained the evidence by means that are sufficiently independent to dissipate the taint of their illegal conduct." To determine whether there is sufficient attenuation to purge the unconstitutional taint from evidence offered by the State, 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."

[ State v. Badessa, supra, 185 N.J. at 312-13, 885 A.2d 430 (citations omitted).]

Here, the police questioned defendant immediately after the racially motivated stop of his car. From these questions, Parisi determined that Ricky Lee, (the driver) could not produce his driver's license and vehicle registration, or even identify the owner of the car. Defendant also attempted to reach between the seats of the car, alerting the officer to a potentially dangerous situation. Armed with this information, Parisi ordered defendant and his fellow traveler to place their hands on the dashboard. Although both complied, defendant became verbally abusive.

As noted earlier, the trial judge found that after the occupants attempted to exit the vehicle, Parisi ordered them to remain in the car. At this point, the driver attempted to put the car in gear. The trooper then placed his gun against defendant's temple, and informed both men that they were under arrest.

As these facts illustrate, defendant's detention was complete before the occurrence of any intervening act. As noted in the State's brief, the intervening act occurred when defendant physically assaulted the officer, and fled from the scene. Even if defendant had not resisted, the trooper would have conducted a search of the vehicle incident to the unlawful, racially tainted arrest. That search would have revealed the existence of the drugs that were secreted between the seats of the car. All of these events flowed directly from the initial unconstitutional motor vehicle stop.

Under these circumstances, not only is the discovery of the relevant evidence not "so attenuated as to dissipate the taint from the unlawful conduct," but in fact, its discovery was irrevocably linked to the illegal stop. In other words, because the discovery of the drug evidence was not "far removed from the constitutional breach," the exclusionary rule applies.

Although I am satisfied that the attenuation doctrine is not germane to the proper resolution of this matter, the trial court's analysis compels me to discuss the three factors relevant to its applicability. The first factor is temporal proximity. In evaluating temporal proximity, the challenged evidence must spring directly from the illegal conduct. State v. Badessa, supra, 185 N.J. at 312, 885 A.2d 430. In my view, temporal proximity does not necessarily involve a pure time sensitive analysis. In this context, temporal proximity refers to a causal link between the illegal stop and the discovery of the evidence, whether or not such discovery is made immediately after the unlawful stop, or sometime shortly thereafter. Obviously, the greater the degree of temporal proximity between the police misconduct and the discovery of the evidence, the greater the probability that the evidence should be suppressed.

In Casimono, the discovery of the tainted evidence sprang immediately from the illegal pat down search. State v. Casimono, supra, 250 N.J.Super. at 186, 593 A.2d 827. In Casimono, we suppressed a dollar bill containing cocaine residue that defendant threw over a guardrail, because this action was in direct response to an illegal pat down search. Ibid. Here, although the actual discovery of the drug evidence may have occurred at a later point in time, the stage was set for the police to have discovered and seized the illicit drugs within minutes after the illegal stop. Thus, there is a close temporal proximity between the illegal stop and the discovery of the constitutionally tainted evidence.

The second factor is the existence of an intervening event. The trial court found that defendant's physical confrontation with the officer amounted to "a break in the chain" of events, sufficient to constitute an independent basis for admitting the drug evidence. The majority adopted the trial court's reasoning. What this analysis fails to appreciate, is that the physical confrontation occurred after the unconstitutional arrest that would have inevitably led to the discovery of the drug evidence. Thus, for purposes of the attenuation doctrine, there was no intervening event. The chain was forged between the police misconduct and the drug evidence before defendant engaged in any violent act against the police.

In the context of the attenuation doctrine, an intervening event must be completely unconnected to the original illegal conduct. The facts and holding in Casimono illustrates this point.

After the [defendant's] car [was lawfully] stopped, [the driver] got out and [the police officer] directed defendant also to get out of the car.

The troopers conducted pat down searches of both [the driver] and defendant. [The driver] resisted the pat down search by [one trooper], first refusing to take his hand out of his right front pocket and then throwing something from his pocket over the guardrail located along the shoulder of the roadway. [The other trooper] went to the aid of [the first trooper], at which point defendant returned to the car, where he retrieved a large brown paper bag which he threw over the guardrail. [The second trooper] returned to defendant and attempted to subdue him while [the first trooper] continued in his efforts to subdue [the driver]. As the two troopers were rolling on the ground with defendant and [the driver], a third occupant of the car . . . got out of the back seat, jumped into the front seat and drove away. Both troopers shot at the fleeing vehicle. They then handcuffed [the driver] and defendant and pursued [the third occupant], who abandoned the vehicle, which had its back tires shot out, approximately a half mile away. [The third occupant] was apprehended later that day and a search of the area below the guardrail revealed a dollar bill containing cocaine residue and a brown paper bag containing 700 grams of cocaine.

[ State v. Casimono, supra, 250 N.J.Super. at 178, 593 A.2d 827.]

Thus, in Casimono, the evidence that was directly linked to the illegal pat down search was suppressed, while the evidence obtained as a result of the lawful motor vehicle stop, coupled with the subsequent assaults upon the officers, was admitted. As Judge Skillman explained:

[D]efendant did not discard the cocaine in the paper bag in direct response to unlawful police conduct. The pat down search of defendant had been completed before defendant threw the paper bag over the guardrail. Furthermore, the paper bag was not in his possession but rather in the car. Thus, defendant had to voluntarily return to the car, in violation of [the] [t]rooper['s] direction to stand with his hands on the car, and retrieve the bag, before he could dispose of this evidence.

We hold that these actions by defendant were sufficiently independent of the prior illegal pat down searches to warrant the conclusion that the discovery of the cocaine in the paper bag did not directly result from the police misconduct. To be sure, the troopers' illegal pat down searches and defendant's retrieval and disposal of the cocaine occurred in close temporal proximity, which is one factor supporting suppression of the evidence thereby revealed. However, there are other more weighty factors which lead us to conclude that the discovery of the cocaine was not tainted by the prior illegal searches. The stop of the car in which defendant was riding and the police order to defendant to get out of the car were lawful. Thus, the only police misconduct consisted of the pat down searches, and the paper bag containing the cocaine was not located on the persons of either [the driver] or defendant but rather in the car, which was not subject to an unlawful search. Furthermore, defendant gained access to the bag only by disobeying a lawful police order that he remain outside the car. Therefore, there was a significant break in the chain of causation between the illegal searches and the discovery of the cocaine. (Emphasis added.)

[ State v. Casimono, supra, 250 N.J.Super. at 186-87, 593 A.2d 827 (emphasis added) (citations omitted).]

In State v. Battle, supra, 256 N.J.Super. at 273, 606 A.2d 1119, a police officer stopped defendant's car under the mistaken impression that the vehicle did not have license plates. After realizing his error, instead of permitting defendant to resume his journey, the officer detained defendant long enough to notice what appeared to be drug paraphernalia inside the car. A further search of the vehicle revealed an unspecified amount of marijuana. Ibid. What transpired next in Battle was significantly more egregious, from the point of view of the actions taken by the defendant against the police, than what occurred in this case.

According to the officer, he then told defendant and the other occupants that they were under arrest. However, codefendant Harris bolted from the group and began running down the highway. The officer directed Harris to stop or he would shoot. While the officer's attention was directed towards the fleeing Harris, defendant got back into his car and began to drive away. Consequently, the officer jumped into the passenger side of the car and tried to turn off the ignition. But defendant prevented the officer from stopping the car by elbowing his chest and hitting his arms. In response, the officer pulled out his gun and hit defendant over the head with it. At this point, with the car traveling approximately 40 miles per hour, defendant pushed the officer out of the car onto the middle lane of the highway. As a result, the officer suffered a broken foot and other injuries. Defendant continued his flight from the scene but surrendered to the police three days later. Harris also was apprehended but the third occupant escaped. The police never recovered the rolling paper or greenish brown vegetation which the officer observed in defendant's car.

[ Ibid.]

Despite these facts, we upheld the trial court's suppression of the drug evidence from being used to prosecute drug charges, while allowing its use in connection with the prosecution of the assault and escape charges. Id. at 278, 606 A.2d 1119. The goal in Battle was to successfully harmonize two seemingly competing public policy objectives: the deterrence of police misconduct; and the prosecution of crimes that endanger the safety of police officers in the field.

The final, and in this case, the most critical factor of the attenuation doctrine is the flagrancy of the police misconduct. It bears repeating, that this factor has never been considered, analyzed, or applied in the context of a racial profiling case. The attenuation doctrine requires a reviewing court to balance the flagrancy of the police misconduct against the intervening event, in order to determine whether, as a matter of public policy, the prosecution of the intervening event outweighs the need to deter the particular police misconduct. Stated differently, if the police misconduct involved a limited and, under the circumstances, relatively minor intrusion into defendant's constitutionally protected rights, while the defendant's subsequent misconduct exposed the police to significant harm, then the connection between the initial police misconduct and the subsequent event becomes attenuated. Casimono supra, 250 N.J.Super. at 187, 593 A.2d 827.

This is not how the flagrancy factor was applied by the trial court here:

When you do the balancing issues under Casimono, the three factors, sure, there is some temporal proximity but it is not immediate, number one. Are the actions of the police in terms of racial discrimination egregious? Pretty egregious if you are a minority being stopped but there are also intervening circumstances and, again, I can't say that the flagrancy and purpose of the police misconduct is such to warrant the response of the defendants.

While the police may be acting under a color of unlawful authority, the acts of the defendants outweigh in my mind any discriminatory act that may have started the incident in terms of this type of a response.

[Emphasis added.]

Despite the inapplicability of the attenuation doctrine, as well as the absence of an intervening event relevant to the drug charges, I am nevertheless compelled to take issue with the trial court's failure to appreciate the true nature of the harm caused by racial profiling. At an earlier point in this dissent, I discussed the profound and pernicious effect this abhorrent practice has had in our State.

It cannot be overemphasized, that racial profiling connotes a segregationist mentality, harkening to a time when this type of malevolent stereotyping was not only considered acceptable, but legitimate. Short of actual physical violence, its difficult for me to imagine a more serious, and flagrant abuse of the State's police power.

Against this backdrop, if we accept that the initial stop of defendant's vehicle was the product of racial profiling, as both the trial court and my colleagues in the majority have done, I see no legal impediment to granting defendant's discovery motion. As noted by Justice Pollock in State v. Johnson, supra, 118 N.J. at 658, 573 A.2d 909, in none of the cases that have addressed the attenuation doctrine "was the incriminating evidence admitted to establish the offense for which the defendant had been illegally detained."

This case is not about immunizing defendant from crimes committed after the unconstitutional stop. In fact, defendant specifically concedes that the unlawful stop does not preclude his prosecution for the crimes committed against the troopers. Rather, defendant argues that the approach here should mirror our holding in Battle. There is no tension to be resolved between protecting our citizens from racial profiling, and protecting officers in the field from the inherent dangers of police work. In short, the potential dismissal of the drug charges does not sacrifice police safety at the altar of the Equal Protection Clause.

For these reasons, I respectfully dissent.