SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5736-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALFREDO LOPEZ, 

Defendant-Appellant. 

———————————————————————————

Submitted April 25, 2017 – Decided

Before Judges Fasciale and Gilson.

On appeal from the Superior Court of New 

Jersey, Law Division, Bergen County, 

Indictment No. 12-06-0927.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Stephen W. Kirsch, Assistant 

Deputy Public Defender, of counsel and on the 

brief).

Gurbir S. Grewal, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Senior Assistant Prosecutor, of counsel and on 

the brief).

PER CURIAM

Following the denial of his motion to suppress physical 

evidence, defendant Alfredo Lopez pled guilty to second-degree 

eluding, N.J.S.A. 2C:29-2(b); second-degree possession of heroin 

NOT FOR PUBLICATION WITHOUT THE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.

May 15, 2017
2 A-5736-14T4

with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 

-5(b)(2); third-degree possession of heroin, N.J.S.A. 2C:35-

10(a)(1); and third-degree hindering, N.J.S.A. 2C:29-3(b)(1). On 

the second-degree convictions, defendant was sentenced to seven 

years in prison with forty-two months of parole ineligibility. On 

the third-degree convictions, he was sentenced to four and five 

years in prison. The sentences were run concurrent. Defendant 

now appeals the denial of his motion to suppress and his sentences. 

We affirm the convictions, but remand for resentencing.

I. 

The relevant facts were established at a hearing on the motion 

to suppress. On February 27, 2012, defendant was driving in 

Paramus just before midnight. Two officers, who were parked in 

an unmarked vehicle, observed defendant's car driving at 

approximately forty miles an hour in a fifty-mile-an-hour zone. 

As defendant's car drove by the officers' vehicle, defendant 

slammed on the brakes and moved from the left to the center lane 

without the use of a turn signal. One of the officers then 

observed that one of the brake lights on defendant's car was not 

operating. The officers began to follow defendant and thereafter 

effectuated a motor vehicle stop.

Officer Hayo and his partner Officer Cullen approached the 

vehicle. When the officers spoke to defendant, they observed that 
3 A-5736-14T4

he was nervous, the car contained multiple air fresheners and they 

could see a large amount of cash in the center console. Based on 

those observations, which they believed gave rise to reasonable 

suspicion of drug activity, the officers requested consent to 

search the car. Defendant initially agreed, but then asked if his 

brother-in-law, who owned the car, could be present. The officers 

denied that request citing officer safety. Defendant then fled

by driving away and the officers pursued him. While in pursuit, 

the officers observed defendant slow down and throw a black object 

out of the passenger window. Defendant then drove on and 

eventually came to a stop. 

Defendant was arrested and he was found to be in possession 

of $2490 in cash. Other officers went back and found a black 

plastic bag near the area where defendant had thrown the object. 

The bag contained 2250 packs of suspected heroin and air 

fresheners.

Defendant was indicted for eluding, hindering, possession of 

heroin with the intent to distribute, and possession of heroin. 

He made a motion to suppress. The only witness at the hearing was 

one of the two arresting officers, Officer Hayo. After hearing 

the testimony, the trial judge denied defendant's motion. The 

judge found that the stop was lawful because of the inoperable 

brake light and because defendant changed lanes without signaling. 
4 A-5736-14T4

The motion judge also found that the request for consent was valid. 

The judge went on to find that the patrolman's testimony was 

credible when he testified that he observed defendant throw an 

object from the car and that defendant had abandoned that property.

II.

On appeal, defendant makes two arguments. First, he argues 

that the motion to suppress should have been granted because the 

police did not have reasonable articulable suspicion to request 

consent to search, and the doctrine of "attenuation" does not 

apply. Second, defendant challenges his sentences as inconsistent 

with the plea and argues that certain counts should have merged. 

He articulates those arguments as follows:

POINT I – DEFENDANT'S MOTION TO SUPPRESS THE 

ITEMS SEIZED SHOULD HAVE BEEN GRANTED; THERE 

WAS NOT REASONABLE ARTICULABLE SUSPICION FOR 

THE REQUEST FOR CONSENT TO SEARCH THE VEHICLE, 

AND, WHEN DEFENDANT FLED AND DISCARDED DRUGS 

ONLY SECONDS AFTER THE IMPROPER CONSENT TO 

SEARCH, WITHOUT ASSAULTING OR INJURING -- OR 

EVEN USING FORCE UPON -- OFFICERS, THE 

DOCTRINE OF "ATTENUATION" DOES NOT "SAVE" THE 

UNCONSTITUTIONAL CONDUCT OF THE POLICE FROM 

THE REMEDY OF SUPPRESSION

POINT II – THE SENTENCE IMPOSED ON ONE COUNT 

APPEARS TO BE BEYOND THE UPPER LIMIT OF THE 

TERMS OF THE PLEA BARGAIN; LIKEWISE, THE PLEA 

DEAL MANDATES MERGER OF OFFENSES THAT WAS NOT 

ORDERED; MOREOVER, THE AGGREGATE SENTENCE AND 

THE INDIVIDUAL TERMS ARE ALSO UNSUPPORTED BY 

ANY ANALYSIS OF THE AGGRAVATING AND MITIGATING 

FACTORS, AND ARE, THUS, MANIFESTLY EXCESSIVE, 

THEREBY REQUIRING A REMAND FOR RESENTENCING
5 A-5736-14T4

We are "bound to uphold a trial court's factual findings in 

a motion to suppress provided those 'findings are supported by 

sufficient credible evidence in the record.'" State v. Watts, 223 

N.J. 503, 516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-

44 (2007)). "Deference to those findings is particularly 

appropriate when the trial court has the 'opportunity to hear and 

see the witnesses and to have the feel of the case, which a

reviewing court cannot enjoy.'" Ibid. (quoting Elders, supra, 192 

N.J. at 244). Review of a trial court's legal conclusions, 

however, is conducted de novo. Reese v. Weis, 430 N.J. Super.

552, 568 (App. Div. 2013) (citing Dep't of Envtl. Prot. v. Kafil, 

395 N.J. Super. 597, 601 (App. Div. 2007)).

To request consent to search during a motor vehicle stop, 

police must have a reasonable articulable suspicion that the search 

will produce evidence of illegal wrongdoing. State v. Carty, 170 

N.J. 632, 647 (2002). "[T]he appearance of nervousness is not 

sufficient grounds for the reasonable and articulable suspicion 

necessary to extend the scope of a detention beyond the reason for 

the original stop." Id. at 648. Nevertheless, "nervousness and 

conflicting statements, along with indicia of wrongdoing, can be 

cumulative factors in a totality of the circumstances analysis 

that leads to a finding of reasonable and articulable suspicion 
6 A-5736-14T4

of ongoing criminality." Elders, supra, 192 N.J. at 250 (citing

State v. Stovall, 170 N.J. 346, 367 (1990)). 

In denying defendant's motion to suppress, the trial judge 

found the testimony of Officer Hayo to be credible. The court 

found that the stop of defendant's vehicle was lawful because 

defendant had an inoperable brake light and changed lanes without 

the use of his turn signal. When the officers approached 

defendant's vehicle, defendant's hands were shaking and he 

appeared "overly nervous." There were "multiple air fresheners 

in the motor vehicle" and "hundred dollar bills in the center 

console." The totality of circumstances, including the excessive 

number of air fresheners, the hundred dollar bills in the center 

console, in conjunction with the appearance of nervousness, 

constituted reasonable suspicion to request consent to search the 

vehicle. The trial court's decision that this request was lawful 

was supported by sufficient credible evidence in the record. 

Alternatively, assuming the request to search was not lawful, 

defendant's flight sufficiently attenuated the seizure of the 

evidence from the alleged improper police conduct. New Jersey 

courts apply a three-factor test to determine attenuation: "(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 
7 A-5736-14T4

misconduct." State v. Johnson, 118 N.J. 639, 653 (1990) (citations 

omitted) (followed by State v. Shaw, 213 N.J. 398, 416-21 (2012)). 

"[T]he determination whether the evidence is the 'fruit' of the 

illegal conduct is a factual matter for the court." Ibid. 

In considering the first factor, temporal proximity, the time 

between the alleged improper request for consent to search and 

defendant throwing the bag from his car window was brief. Temporal 

proximity, however, "'is the least determinative' of the three 

factors." Shaw, supra, 213 N.J. at 416 (quoting State v. Worlock, 

117 N.J. 596, 623 (1990)). Its effect on attenuation is often 

ambiguous. Ibid. Here, the brief passage of time does not suggest 

that the official conduct somehow coerced the abandonment. 

Most significantly, there are undisputed intervening 

circumstances in this case that support the finding of attenuation. 

Defendant fled while the officers were conducting a lawful motor 

vehicle stop, giving the officers the right to pursue defendant. 

Suspects must obey a police officer's commands during an 

investigatory stop and they have no right to resist arrest, elude, 

obstruct the police, or escape in response to a stop or detention. 

State v. Herrerra, 211 N.J. 308, 334-35 (2012); State v. Crawley, 

187 N.J. 440, 468, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 

166 L. Ed. 2d 563 (2006). When defendant fled the scene after 

being told his brother-in-law could not be present for the search 
8 A-5736-14T4

of the vehicle, defendant committed an eluding that justified the

officers' pursuit. 

Finally, there is nothing to suggest that the police were 

acting improperly. There was nothing flagrant about the police's 

conduct. At worst, the officers asked for consent to search 

without a proper basis. As we have found, however, the officers 

did have a proper basis to request consent. Thus, applying the 

three-factor standard, there was credible evidence supporting the 

alternative grounds of attenuation. 

After fleeing, defendant threw the bag containing the heroin 

from his car. It logically follows that defendant had no right 

to challenge the admission of the heroin into evidence because he 

abandoned the bag when he threw it from the car. See Johnson, 

supra, 193 N.J. at 548. Further, this abandonment was sufficiently 

attenuated from the alleged police misconduct. See Id. at 548-49 

(explaining that property "is not considered abandoned when a 

person throws away incriminating articles due to the unlawful 

actions of police officers" (quoting State v. Tucker, 136 N.J.

158, 172 (1994))). 

In summary, even assuming the officers did not have the 

requisite reasonable suspicion to request consent to search the 

vehicle, defendant's abandonment of the property, and the 

attenuation of this abandonment from the alleged unlawful police 
9 A-5736-14T4

conduct, leaves defendant with no right to challenge its seizure. 

See Ibid. (explaining that abandonment is a "narrow exception to 

our automatic standing rule"). 

Therefore, we affirm the trial court’s denial of defendant’s 

motion to suppress. 

III.

Next, we consider defendant's sentences. When defendant pled 

guilty, the judge informed defendant of the maximum sentences that 

would be imposed. Defendant was told that he would be sentenced 

to seven years in prison with forty-two months of parole 

ineligibility on the conviction for second-degree possession of 

heroin with the intent to distribute. Defendant would also be 

sentenced to a concurrent seven-year prison term on the conviction 

for second-degree eluding. The conviction for hindering would 

merge with the eluding conviction and the conviction for possession 

of heroin would merge with the conviction for possession of heroin 

with the intent to distribute. Those representations were embodied 

in a supplemental plea form signed by the prosecutor and defendant 

and made part of the plea agreement.

At sentencing, a different judge stated that he would sentence 

defendant in accordance with the plea agreement. The judgment of 

conviction, however, imposed different sentences. In the judgment 

of conviction, defendant was sentenced to seven years in prison 
10 A-5736-14T4

with forty-two months of parole ineligibility on both the eluding 

and the possession with intent to distribute convictions. He was 

also sentenced to five years in prison on the hindering conviction 

and four years in prison on the possession of heroin conviction. 

All of those sentences were run concurrent. 

The State concedes that the matter should be remanded for 

resentencing. We agree because a defendant who pleads guilty and 

relies on a promise has a right to expect that the bargain will 

be fulfilled or he be given the opportunity to withdraw his guilty 

plea. State v. Subin, 222 N.J. Super. 227, 238 (App. Div.), 

certif. denied, 111 N.J. 580 (1988). Here, the sentencing judge 

stated that he intended to sentence defendant in accordance with 

the plea agreement. Accordingly, this matter will be remanded for 

resentencing in accordance with the plea agreement.

Given that the matter will be remanded for resentencing, we 

need not address defendant's arguments concerning the analysis of 

the aggravating and mitigating factors. At the resentencing, the 

court will have the opportunity to make findings and explain the 

basis for the aggravating and mitigating factors. See State v. 

Fuentes, 217 N.J. 57, 73 (2014) (explaining that "[a]t the time 

of sentencing, the court must 'state reasons for imposing such 

sentence including . . . the factual basis supporting [its] finding 
11 A-5736-14T4

of particular aggravating or mitigating factors affecting 

sentence" (second alteration in original) (quoting R. 3:21-4(g))). 

Defendant's convictions are affirmed and the matter is

remanded for resentencing in accordance with the plea agreement. 

We do not retain jurisdiction.