SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2388- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. SINCERE DANIELS, Defendant-Appellant.

_____________________ __

Submitted March 18, 2024

– Decided August 1, 202 4 Before Judges DeAlmeida and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 22

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- 1475. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Nadine Kronis, Assistant Deputy Public Defender, of counsel and on the brief). Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Assista nt Prosecutor, of counsel and 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he 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- 2388

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Defendant Sincere Daniels appeals from an order den ying his motion to suppress evidence seized pursuant to a warrantless search. Following our review of the arguments and applicable law, we conclude th e trial court erred in denying defendant's motion to suppress because the totality of the circumstances does not establish a reasonable articulable suspicion fo r the investigatory stop of defendant. We reverse the order denying defendant's motion to sup press the evidence, vacate his guilty plea, and remand for an evidentiary hearing.
I. No evidentiary hearing was held. Therefore, we re cite the facts as represented in the parties' submissions and by the trial court from its in-courtviewing of the body worn camera footage of Newark D etective Steven Resendes. The parties stipulated to the facts stated in the incident report prepared by Resendes

. On March 15, 2022, at approximately 4:15 p.m., a lieu tenant from the Criminal Intelligence section assigned Resendes to investigate an anonymous tip from the Newark Police Department's Gun Stoppers h otline

. The lieutenant relayed that a tipster provided information that at Columbia Avenu e and South Orange Avenue, "a black male wearing a black sweats uit and grey sneakers ha[d] a gun on him" and that "the male was standing near a male who [was]3 A- 2388

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wearing a grey sweatsuit." No information was provided concerning the tipster or how the lieutenant obtained the information. In three unmarked cars , Newark officers dressed in plainclothes and display ing police badges responded to that intersection. In his report, Resendes reported that he and his partner approached the intersection of Columbia Avenue and South Orange Avenue and saw a group of males cong regated in front of 773 South Orange Avenue. A black male wearing a black sweatsuit and gray sneakers, later identified as defendant, stood near the other male wearing a grey sweatsuit. According to the report, while traveling westbound on South Orange Avenue, Resendes saw the male in the grey sweatsuit "tap" defendant on the arm while looking at his police car. Resendes wrote th at while traveling toward Cedar Avenue, defendant turned and faced his police car and "immediately " turned his back to the car. As Resendes approached Cedar Avenue, defendant was "still looking" at the police car while holding the front waistband of his sweatpants. As three other officers were traveling westbound on South Orange Avenue from Columbia Avenue, Resendes radioed: "He's righ t there on the right." According to the report, as Resendes made a U-turn at the intersection of South Orange Avenue and Cedar Avenue, defendant began to walk toward the street.4 A- 2388

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Resendes pulled his car into the parking lot of 773 South Orange Avenue, and defendant started walking toward the southbound sidewalk of South Orange Avenue while looking at Resendes's police car with his hand in the front waistband. Four officers exited their police car and yelled: "Newark Police stop." Defendant ran with his cellphone in one hand and hi s other hand remained in his front waistband towards Resendes and his partner. As defendant approached the northbound sidewalk of South Orange Avenue, he fell to the ground, dropped his cellphone and kept his hand in the front waistb and. The report stated another detective "immediately gr abbed" defendant's right arm and placed it around his back. At the sa me time, a different detective attempted to grab defendant's left hand from under his body and shouted the Newark police code word for "Gun." Resendes assisted the second detective in lifting defendant's left arm and placed it behind d efendant's back. Detectives picked up defendant off the ground and Resendes ret rieved a ".45 caliber Kimber handgun" loaded with ammunition from defendant's wa istband. Defendant was

arrest ed and placed in the back of the unmarked vehicle. A computer search revealed the handgun was reported stolen from South Carolin a.5 A- 2388

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A grand jury indicted defendant on charges of second- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); fou rth-degree obstructing the administration of law, N.J.S.A. 2C:29-1(a); fourth- degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); and third-degree receiving stolen property, N.J.S.A. 2C:20-7(a). Defendant moved to suppress the evidence obtained d uring the stop. He challenged whether the officers responding to the a nonymous tip had a reasonable suspicion of criminal activity to justif y the stop pursuant to Terry v. Ohio , 392 U.S. 1 (1968). Defendant argued that the ano nymous tipster was not reliable and provided only a description of clothin g worn by defendant and another male. He also relied on State v. Tucker , 136 N.J. 158, 169 (1994) , arguing that flight alone is not ample evidence of reasonable suspicion. In a written opinion, the court denied defendant's motion, finding that the totality of the circumstances, based on the officer s' training and experience, which was not included within the report, as well a s the anonymous tip and defendant's actions, justified a reasonable suspici on to stop and frisk defendant. At the outset, the court rejected the State's argum ent that the plain view exception to warrantless searches applied. The cou rt then analyzed the veracity, reliability, and the basis of knowledge of the anon ymous tip. The court citing6 A- 2388

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State v. Matthews, 398 N.J. Super. 551, 559 (App. D iv. 2008), reasoned that "unlike a tip from an ordinary citizen, an anonymou s tip alone generally lacks the veracity, reliability, and basis of knowledge n eeded for an officer to have the reasonable suspicion required for a stop." The court concluded that tip was unreliable because it provided information about de fendant's appearance and location and no other information that explained wh y defendant possessed a gun. Nevertheless , the court found that under the totality of the circ umstances, the officers ha d a reasonable suspicion of criminal activity becau se "other evidence arose before the seizure began [that] corr oborate[d] the tip." In particular, after defendant was alerted of the offi cers' presence, he began walking away with his hand in the front waistband o f his sweatsuit. The court determined that action "suggested defendant was try ing to prevent an object too heavy for a waistband to constrain from falling out of the bottom of his sweatpants." That conclusion, however, was not sta ted in the police report. Following the denial of the motion, defendant plead ed guilty to seconddegree unlawful possession of a weapon and was sent enced in accordance with the plea agreement to a four-year prison term with one year of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C: 43 -6(c).7 A- 2388

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On appeal, defendant argues the trial court erred i n denying his motion to suppress because the police lacked a reasonable and articulable suspicion for the stop

. Our review of the denial of a suppression motion is limited. State v. Handy, 206 N.J. 39, 44 (2011). We apply our familiar deferential standard of review. State v. Nyema, 249 N.J. 509, 526 (2022). "'[A]n appellate court reviewing a motion to suppress must uphold the fact ual findings underlying the trial court's decision so long as those findings ar e 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, 243 (2007)). In contrast, the trial court's interpretation of the l aw and the legal "'consequences that flow from established facts'" are reviewed de novo. Ibid. (quoting State v. Hubbard, 222 N.J. 249, 263 (2015)); State v. Tiwana , 256 N.J. 33, 40 (2023). The Fourth Amendment to the United States Constituti on and Art. I § 7 of the New Jersey Constitution protect the right of in dividuals from unreasonable searches and seizures. State v. Smart, 253 N.J. 15 6, 164 (2023) (quoting Nyema , 249 N.J. at 527). The parties do not dispute that an inves tigatory stop occurred. 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.8 A- 2388

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Goldsmith, 251 N.J. 384, 399 (2022); see also State v. Rosario, 229 N.J. 263, 272 (2017). An investigative stop or detention "is constitution al only 'if it is based on "specific and articulable facts which, tak en together with rational inferences from those facts," give rise to a reason able suspicion of criminal activity.'" Elders , 192 N.J. at 247 (quoting State v. Rodriquez, 172 N.J. 117, 126 (2002)). The State has the burden to establish that a stop was valid. State v. Mann , 203 N.J. 328, 337-38 (2010); State v. Pineiro, 181 N.J. 13, 19 -20 (2004). The standard of reasonable suspicion is less rigorous t han probable cause to warrant an arrest. Terry, 392 U.S. at 26

- 27; State v. Shaw, 213 N.J. 398, 410 (2012). If there was no reasonable suspicion of criminal activ ity to justify the stop, evidence discovered because of the stop is subject to exclusion. State v. Chisum , 236 N.J. 530, 546 (2019). In considering whether the officer had a reasonable suspicion to stop defendant, we begin our review of the anonymous tip provided to the Gun Stoppers hotline. "In determining the reliability of a tip, a court m ust consider an informant's 'veracity,' 'reliability,' and 'basi s of knowledge.'" State v. Stovall , 170 N.J. 346, 362 (2002) (quoting Alabama v. White, 496 U.S. 325, 328 -29 (1990)). To determine the informant's "basis of kn owledge," "the nature and9 A- 2388

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details revealed in the tip may imply" that the kno wledge of the criminal activity comes from a "trustworthy source." Stovall, 170 N. J. at 362. "In determining whether reasonable suspicion exists, a court must c onsider 'the totality of the circumstances-the whole picture.' " Id. at 361 (internal citations omitted). The reliability of the tip is part of the totality of t he circumstances analysis. Id. at 361

- 62. In that regard, our Supreme Court has held that an anonym ous tip without more "is rarely sufficient to establish a reasonabl e articulable suspicion of criminal activity." Rodriquez, 172 N.J. at 127 (internal citation omitted ). "A n 'anonymous tip standing alone cannot justify a Terr y stop .'" State v. Richards , 351 N.J. Super. 289, 303-04 (App. Div. 2002). "To justify action based on an anonymous tip, the police in the typical case must verify that the tip is reliable by some independent corroborative effort." Rodriqu ez, 172 N.J. at 127 (citing White, 496 U.S. at 329

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. Here, the trial court found the anonymous tip was based on a description of the clothing worn by defe ndant and another male with no other facts. Accordingly, the court correctly r uled the anonymous tip was unreliable because it provided no explanation or basis of knowledge regarding defendant's appearance , location, and that he had a gun. Id. at 132- 33.10 A- 2388

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We conclude reasonable suspicion did not exist unde r the totality of the circumstances for the investigatory stop. As noted above, defendant was stopped based solely on an unreliable anonymous tip . With nothing more than the anonymous tip, Resendes did not have "an articulab le [and reasonable] suspicion that criminal activity had occurred or wo uld shortly occur." State v. Davis, 104 N.J. 490, 505 (1986). In considering the video and the police report, the court found that defendant's avoidance of a "po ssible " police encounter when he was alerted to police presence and his grip on his waistband was sufficient evidence to corroborate the anonymous tip and establish reasona ble suspicion. The State contends that there was sufficient corroboration ba sed on the other male alerting defendant, followed by defendant walking away hold ing his waistband. We disagree with the court's finding and the State' s contention because the combination and sequence of facts does not provide a r easonable articulable basis for the stop. The police report did not state that Resendes saw t he presence of a gun or that defendant was armed and dangerous. The fact that a group of males were "congregating" in front of a building do es not suggest any unusual or nefarious activity. On the record before us, the totality of the circum stances11 A- 2388

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lacked an objectively reasonable and articulable ba sis for the investigatory stop of defendant and seizure of the handgun. Even if the court considered defendant's flight aft er the police identified themselves and directed him to stop, the court did not consider and apply the factors to determine whether there was a "significa nt attenuation" between the unconstitutional stop , the flight by defendant from police, and the seizure of the handgun from defendant to purge the unlawful stop. State v. Williams, 410 N.J. Super. 549, 552

. (App. Div. 2009) ; Shaw , 213 N.J. at 415. Lastly, we note the trial court made two credibilit y determinations and two factual findings regarding reasonable suspicion based on a review of the police report and video recording

. In that regard, the court found (1) the suggestion that "defendant was trying to prevent an object too heavy for a waistband to constrain from falling out of the bott om of his sweatpants" and reasonable suspicion was "based on the officers' kn owledge and experience." Those facts were not presented by the State in the police report or testimony. "We ordinarily will not disturb the trial court's f actual findings unless they are 'so clearly mistaken "that the interests of justice demand intervention and correction."'" Goldsmith, 251 N.J. at 398 (quoting State v. Gamble, 218 N.J. 412, 425 (2014)). In this matter, factual findings were made without the court12 A- 2388

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having the opportunity to hear and see witnesses. See State v. Parker , 459 N.J. Super. 26, 30 (App. Div. 2019). We, therefore, do not give deference to the court's factual findings. We vacate the January 27, 2023 order denying defend ant's suppression of the handgun and remand the matter for a full eviden tiary hearing. On remand, we direct that a different judge conduct the hearin g because the judge who decided defendant's motion has already engaged in w eighing the evidence and rendered an opinion on the credibility of the defen dant and officers. Vacated, reversed, and remanded. We do not retain jurisdiction.