SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3808- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. RODNEY E. WILLIAMS, Defendant-Appellant.

_______________________

Submitted on October 10, 2023

– Decided December 19, 2023 Before Judges Gilson and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 20

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- 0200. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura , Assistant Deputy Public Defender , of counsel and on the brief). Esther Suarez , Hudson County Prosecutor, attorney for respondent (Patrick Ryan McAvaddy, Assistant Prosecutor, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3808

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Defendant Rodney E. Williams appeals from his guilt y plea conviction for second-degree unlawful possession of a handgun. He contends the trial court erred in denying his motion to suppress the h andgun seized by the police during an investigative detention. After reviewing the record in light of the governing law , we reverse and remand this matter for further proce edings

. I. By indictment, defendant was charged with second-de gree unlawful possession of a handgun, N.J.S.A. 2C:39-5b(1) (coun t one); second-degree certain persons, N.J.S.A. 2C:39-7b(1) (count two); fourth-degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39- 3f(1) (count three); and third-degree receiving stolen property, N.J.S.A. 2C :20-7a (count four). Defendant moved to suppress the handgun and an evid entiary hearing was held on November 10, 2021. On January 14, 2022 , the trial judge issued an order accompanied by a written decision denying defendant's motion to suppress. The trial judge determined there was rea sonable suspicion for the stop and frisk of defendant. First, the trial judg e found there was reasonable suspicion to stop and frisk defendant based on the description provided by a tip from the confidential informant (C.I.) and the "bas is of knowledge" obtained by an officer viewing CCTV footage. The judge further found that "[d]ue to3 A- 3808

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the nature of the offense, there was reasonable sus picion to warrant the frisk for protection of the officer." Therefore, "[u]nde r the totality of circumstances, both the stop and pat[-]down of [d]e fendant were valid." Second, the trial court determined there was reason able cause to detain defendant after the investigative stop and pat- down

. The court explained, "[w]hile the resulting search [of defendant] did no t produce weapons or contraband, there was reasonable suspicion to conti nue to detain [d]efendant due to the CI tip, confirmation of [d]efendant's pr esence in the relevant location, in a high crime area, and the behavior of [c]o-defendant." The judge concluded, "[c]onsidering the totality of the circu mstances, the facts . . . support[ed] a finding of reasonable and articulable suspicion." Following the denial of his motion to suppress, def endant pleaded guilty to second-degree unlawful possession of a handgun a nd reserved the right to appeal.
We recite the salient facts elicited at the suppression hearing. The State presented two witnesses: Jersey City Police Departm ent Sergeant Joemy Fernandez, then a police officer, and Sergeant Jaso n Perez. On September 11, 2019, Fernandez and his partner, M ohamed Saheed, were assigned to the street crimes unit. At about 8:30 p.m., the officers4 A- 3808

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received a notification from Lieutenant Mo hammad Riaz "that he received information from a registered and reliable confiden tial informant (C.I.) that [] a male [was] in the area of Neptune and Ocean Avenu e[s] wearing a multicolored sweatsuit was in possession of a handgun." Fernandez explained 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" "pr one to gun violence, gang violence, drugs, shootings, [and] robberies." On cross-examination, Fernandez testified that he was notified that a "bl ack 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, officer s were informed th at a male matching the C.I.'s description was "leaving the ar ea" 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 multicolored sweatsuit, and a female, wearing a black ta nk top and camouflage pants, leav ing 116 Neptune Avenue. The male was later identified as defendant and the female was later identified as Al freda Williams, although testimony was not provided as to how they were iden tified. Fernandez saw5 A- 3808

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defendant hold the door for Alfreda while engaged i n a conversation with her. They walked east on Neptune. As they were walking east, the officers exited the patrol car. Fernandez stopped defendant. Alfr eda began walking away toward what appeared to be an alleyway, then quickl y 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 defendant. No weapons or contraband was found on defendant. Yet, the office rs continued to detain defendant for a "short period, about a minute," bec ause Fernandez found Alfreda's behavior to be "suspicious". He explaine d , Alfreda had not shown "concern" for defendant. She also "quickly" walk ed in one direction away from defendant, "dart ed out " and walk ed in a different direction. Fernandez then explained he "continued to detain defendant fo r 'a short period of time', [about four minutes], following the pat-down until Alfreda could be located because of her reaction when police arrived." Fern andez stated it was approximately "a minute" to "a minute and a half" between the time he stopped defendant and when he received the radio call from Perez that Alfreda had been stopped.6 A- 3808

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Perez arrived fifteen to thirty seconds after Alfre da walked away from the officers and defend an t. He testified that his assistance was requested in a firearm investigation based on the radio call from Riaz. Defendant had already been stopped by Fernandez and Saheed when he arrive d

. Fernandez described Alfreda to Perez and told him that she had been wit h defendant and had walked off toward Ocean Avenue. Perez drove toward Ocean Avenue to locate Alfreda f or further investigation. Initially, he traveled south on Ocean Avenue, where he saw a group of females, but none matched Fernandez's desc ription. Perez then turned around and headed north on Ocean Avenue. Eventually, Perez found Alfreda walking west on Bar tholdi Avenue. Alfreda was walking with a "young juvenile Hispanic male, wearing a camouflage tank top and camouflage shorts, and a bl ue 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 an d 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...a7 A- 3808

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90 -degree outline that appeared to be a handgun." Pe rez believed the object was a handgun based on its outline and his training and experience. So, Alfreda and the juvenile were stopped and frisk ed. During the patdown of the outside of the juvenile's bag, Perez determ ined 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 processin g. 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 d efendant had given her the
gun . Fernandez placed defendant under arrest and transpo rted 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 defendant, who had given it to her to hold. Alfreda further state d that she had held the gun "in her bra or shirt and that she placed it in a bag."
II.8 A- 3808

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Defendant raises one issue on appeal. He contends the court erred in denying the suppression motion because he was unlaw fully detained after the pat-down did not produce weapons or contraband. We agree. The standard of our review on a motion to suppress is deferential. State v. Nyema, 249 N.J. 509, 526 (2022). "[A]n appellat e court reviewing a motion to suppress must uphold the factual findings underl ying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Ahmad, 246 N.J. 592, 609 (2021) (alteration in original) (quoting State v. Elders, 192 N.J. 224, 2 43 (2007)). We "defer[] to those findings in recognition of the trial court's 'opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Nyema, 249 N.J. at 526 (quoting Elders, 1 92 N.J. at 244). Generally, we do not disturb the trial court's factual findings unless they are "clearly mistaken" and must be reversed in the interests of justice. State v. Cohen, 2 54
N.J. 308 , 319 (20 23 ) (internal citations omitted). In contrast to the deference owed to a trial court's factual and credibility fin dings, we review a trial court's legal conclusions de novo. State v. S.S., 229 N.J. 360, 380 (2017). The Fourth Amendment to the United States Constitut ion and Art. I § 7 of the New Jersey Constitution protect the right of individuals from9 A- 3808

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unreasonable searches and seizures. State v. Smart , 253 N.J. 156, 164 (2023) (quoting Nyema, 249 N.J. at 527). "Warrantless sei zures are presumptively invalid as contrary to the United States and the Ne w Jersey Constitutions." State v. Pinei ro , 181 N.J. 13, 19 (2004). "To justify a warrantles s search or seizure, 'the State bears the burden of proving by a preponderance of the evidence that [the] warrantless search or seizure f alls within one of the few well-delineated exceptions to the warrant requireme nt.'" State v. Vanderee , 476 N.J. Super. 214, 230 (App. Div. 2023) (quoting State v. Chisum, 236 N.J. 530, 546 (2019)). Here, the Stated failed to meet its burden of proof. Critical to our inquiry is the nature and scope of the officers' initial encounter with defendant and the subsequent detenti on. Under the federal and New Jersey constitutions , the police may stop and frisk a person if they have reasonable suspicion that evidence of criminal acti vity or a weapon may be found on that person. Terry v. Ohio, 392 U.S. 1, 2 6- 27 (1968); State v. Smith , 155 N.J. 83, 91

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. Th e standard of reasonable suspicion is less rigorous than probable cause to warrant an arrest

. Terry, 392 U.S. at 26- 27 ; State v. Shaw, 213 N.J. 398, 410 (2012). "However, an officer's hunch or subjective good faith

— even if correct in the end

— cannot justify an investigatory stop or detention." Id. at 411.10 A- 3808

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The Terry stop, or an investigative stop, "involves a relatively brief detention by police during which a person's movemen t is restricted." State v. Goldsmith, 251 N.J. 385, 399 (2022); see also State v. Rosario, 229 N.J. 263,
272 (2017). An investigative stop or detention "is pe rmissible 'if it is based on specific and articulable facts which, taken togethe r with rational inferences from those facts, give rise to a reasonable suspici on of criminal activity.'" State v. Rodriquez, 1 72 N.J. 1 17 , 126 (2002). During an investigative stop, a police officer may conduct a protective search or pat-down without a warrant when the offic er believes the individual detained is armed and dangerous. Terry , 392 U.S. at 27 ; see also State v. Thomas, 110 N.J. 673, 678 (1988). 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.'" State v. Roach, 172 N.J. 19, 27 (2002) (quoting Terry, 392 U.S. at 23). In other words, a n officer may "conduct 'a carefully limited search of the outer clothing'" to determine whether weapons are present. Id. (quoting Terry, 392 U.S. at 30). Like an investigatory stop, "to conduct a protective search, an officer must ha ve a 'specific and particularized basis for an objectively reasonable suspicion that defendant was armed and dangerous.'" Ibid. (italicization omitte d).11 A- 3808

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"Determining whether reasonable and articulable sus picion exists for an investigatory stop is a highly fact-intensive inqui ry that demands evaluation of 'the totality of circumstances surrounding the poli ce-citizen encounter, balancing the State's interest in effective law enf orcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions.'" Goldsmith, 251 N.J. at 399 (quoting State v. Privott, 203 N.J. 16, 25 -26 (2010)). The inquiry "takes into consideration numerous factors, including officer experience and knowledge." Id. a t 400. Applying these principles, we conclude the trial judge erred in finding the officers had a reasonable suspicion that defend ant 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 p resented."' Smith, 155 N.J. at 92 (quoting State v. Novembrino, 105 N.J. 95, 111 (1987)). Two factors which are "essential" in establishing the credibili ty of an informant's tip are the "informant's 'veracity' and . . . 'basis of knowled ge.'" Id. at 93 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Veracity is established by "demonstrating that the informant proved to be reli able in previous police12 A- 3808

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investigations." State v. Sullivan, 169 N.J. 204, 213 (2001). An informant's basis of knowledge is demonstrated when "the tip it self relates expressly or clearly how the informant knows of the criminal act ivity." Ibid. (internal citation omitted). Here, the judge determined the officers had reasona ble 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 re lationship 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" wearin g a "multi-colored sweatsuit." The tip was silent to any other detaile d identifiers. This information alone "[did] not show that the [C.I.] ha d knowledge of concealed criminal activity." Rosario, 229 N.J. at 276 (inter nal citation omitted). Additionally , the record is silent as to how the C.I. came into possession of the information that defendant possessed a handgun. "W ithout knowing the facts that led the informant to believe defendant was eng aged in illegal activity, we13 A- 3808

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cannot make an independent determination of whether that conclusion was reasonable." Smith, 155 N.J. at 98. The sex and clothing identifiers, even if corrobora ted by Macaluso's observation, w ere 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. Smith, 155 N.J. at 97. These facts , individually or cumulatively, were insufficient to establish an objectively reasonable suspicion that defendant poss essed a handgun

. See Thomas, 110 N.J. at 683.
We similarly conclude the trial judge erred in find ing the officers had reasonable and articulable suspicion to detain defe ndant 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 '[j]ust b ecause 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 p rotection from random stops.'" Goldsmith, 251 N.J. at 399 (quoting Chisum, 236 N.J . at 549; see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000)) ("An individu al's presence in an area of expected criminal activity, standing alone, is n ot enough to support a14 A- 3808

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reasonable, particularized suspicion that the perso n is committing a crime."); Pineiro, 181 N.J. at 31 (Albin, J., concurring) ("T he words 'high crime area' should not be invoked talismanically by police offi cers to justify a Terry stop that would not pass constitutional muster in any ot her location."). Although "officers need not ignore the relevant characterist ics of a neighborhood, . . . more is required to find reasonable suspicion." Go ldsmith, 251 N.J. at 400- 401 (citing Wardlow, 528 U.S. at 124). Furthermore, Fernandez's experience that Alfreda's behavior was suspicious, and Perez's "hunch" the juvenile's drawstring bag contained a gun, which proved correc t, did not justify defendant's on -going de tention. Shaw, 213 N.J. 411. When the officers did not find the handgun on defen dant, he should have been immediately free to leave. The intervening se arch for Alfreda , discovery of the handgun, and Alfreda's spontaneous utterance s do not "purge[] the taint" from the eventually-discovered handgun. Shaw, 213 N.J. at 421; Smith, 155
N.J. at 101

. Defendant's arrest based on possession of the handg un stemmed from the unlawful detention. Accordingly, the evid ence must be suppressed. We reverse the trial judge's denial of defendant's motion to suppress evidence. We vacate that plea because of the likel ihood defendant would not15 A- 3808

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have pleaded guilty if he knew the evidence seized was suppressed. Th erefore, we remand this matter for further proceedings cons istent with this opinion. Reversed and remanded. We do not retain jurisdiction.