State v. Scott

• Citation: 474 N.J.Super. 388,288 A.3d 842
• Decision Date: 31 January 2023
• Docket Number: DOCKET NO. A-0529-21
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. William L. SCOTT, Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

474 N.J.Super. 388

288 A.3d 842

STATE of New Jersey, Plaintiff-Respondent,

v.William L. SCOTT, Defendant-Appellant.

DOCKET NO. A-0529-21

Superior Court of New Jersey, Appellate Division.

Argued October 25, 2022

Decided January 31, 2023

Alyssa Aiello, Assistant Deputy Public Defender, argued the cause for the appellant (Joseph E. Krakora, Public Defender, attorney; Alyssa Aiello, of counsel and on the brief).

Colleen Kristan Signorelli, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Colleen Kristan Signorelli, on the brief).

Before Judges Sumners, Geiger and Susswein.

The opinion of the court was delivered by

SUSSWEIN, J.A.D.

After pleading guilty to robbery, defendant appeals the denial of his motion to suppress an imitation handgun and the victim's cell phone found on his person when he was stopped and frisked by police. The officers detained defendant because he fit the be-on-the-lookout (BOLO) description of the person who had committed a robbery in the vicinity just minutes earlier. The BOLO described the robber as a Black male wearing a dark raincoat. However, the victim did not provide the race of the perpetrator when she reported the crime. The State acknowledges it does not know why the police dispatcher included a racial description of the robber in the BOLO alert.

Defendant contends the dispatcher assumed the robber was Black based on racial prejudice, thus constituting prohibited discrimination in violation of the Fourteenth Amendment Equal Protection Clause and its state constitutional analogues, Article I, Paragraphs 1 and 5 of the New Jersey Constitution. In rejecting defendant's equal protection claim, the motion court focused on the conduct of the responding police officers, rather than the dispatcher, concluding defendant failed to establish a prima facie case of discrimination under the burden-shifting paradigm adopted by our Supreme Court in State v. Segars, 172 N.J. 481, 799 A.2d 541 (2002). The motion court also rejected defendant's contention that the stop and ensuing frisk were unlawful under the Fourth Amendment.

This appeal requires us to address three issues of first impression. As a threshold matter, we must decide whether the conduct of a police dispatcher can be the basis for an equal protection violation under the New Jersey Constitution. We hold that decisions made and actions taken by a dispatcher can be attributed to police for purposes of determining whether a defendant has been subjected to unlawful discrimination.

Second, we address whether "implicit bias" can be a basis for establishing a prima facie case of police discrimination under the Segars burden-shifting paradigm. The problem of implicit bias in the context of policing is both real and intolerable. Accordingly, we hold evidence that permits an inference of implicit bias can satisfy a defendant's preliminary obligation to establish a prima facie case of discrimination under Segars. When, as in this case, the evidence supports such an inference, a burden of production shifts to the State to provide a race-neutral explanation. The State's inability to offer a race-neutral explanation for the dispatcher's assumption that a Black man committed the robbery constitutes a failure to rebut the presumption of unlawful discrimination.

Third, we must decide whether and in what circumstances the independent source and inevitable discovery exceptions to the exclusionary rule apply to the suppression remedy for a violation of Article I, Paragraphs 1 and 5 of the New Jersey Constitution. After considering the twin purposes of the exclusionary rule and balancing the cost of suppression against the need to deter discriminatory policing and uphold the integrity of, and public confidence in, the judiciary, we conclude the independent source exception does not apply in these circumstances. That exception allows a reviewing court to redact unlawfully obtained information to determine whether the remaining information is sufficient to justify a search. We conclude the application of any such redaction remedy would undermine the deterrence of discriminatory policing and send a message to the public that reviewing courts are permitted to essentially disregard an equal protection violation so long as police also relied on information that was lawfully disseminated.

With respect to the inevitable discovery doctrine, we hold it may apply to racial discrimination cases only if the State establishes by clear and convincing evidence that the discriminatory conduct was not flagrant. Because the State acknowledges it does not know why the dispatcher assumed the robber was Black, it cannot meet that burden of proof. We therefore reverse the denial of defendant's motion to suppress.

I.

We discern the following pertinent facts from the record. Shortly before 8:00 p.m. on December 9, 2019, a woman reported to police that she had been robbed. She conveyed that, as she was walking home, a man in a dark raincoat grabbed her by the back of the neck and pressed an object she believed to be a gun against her temple. The man demanded money and her cell phone. The victim did not have money but gave the man her phone. She observed the man fleeing south on Summit Avenue and turning west on Montgomery Street. She then ran into her home and called 911.

The victim described the perpetrator as a male wearing a dark raincoat. When asked whether the man was "Black, white, or Hispanic," she responded she "didn't see." The dispatcher relayed the victim's description of the robber, including his last known direction and possible possession of a gun, to Jersey City Police Department Officers Eric Cirino and Travis Hernandez. However, the dispatcher improperly added to the victim's description that the robber was a Black male.¹

A minute later, the officers observed a Black male, later identified as defendant, wearing a dark raincoat jogging north on Bergen Avenue about three blocks from the robbery. Defendant was the first Black male wearing a dark raincoat the officers saw in the area. The officers approached defendant, got out of their vehicle, and ordered him to stop. Defendant was directed to put his hands against a wall whereupon Officer Hernandez patted him down. The frisk turned up an imitation handgun and the victim's cell phone.

After the imitation gun and cell phone were discovered, the officers requested detectives arrange a "show up" identification. Before participating in that identification procedure, the victim used the "find my iPhone" app, which showed her cell phone was near the corner where defendant was arrested. When brought to the scene of the arrest, the victim identified the cell phone as hers and stated defendant's raincoat was the one the robber had been wearing.

In February 2020, defendant was charged by indictment with first-degree robbery, N.J.S.A. 2C:15-1(a)(2), and related offenses for a different robbery that took place on November 26, 2019. That indictment is not at issue in this appeal.

In March 2020, a grand jury returned an indictment charging defendant with first-degree robbery, N.J.S.A. 2C:15-1(a)(2), and fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e).

In fall 2020, a Law Division judge convened a three-day hearing on defendant's suppression motion. On November 18, 2020, the judge denied the motion, rendering an eleven-page written decision.

On June 29, 2021, defendant appeared before the motion judge and entered a guilty plea to one count of second-degree robbery—the November 26, 2019 robbery—and one count of first-degree robbery—the robbery at issue here. On October 8, 2021, defendant was sentenced to five years in prison for the second-degree robbery and six years in prison for the first-degree robbery. Both sentences were subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and were ordered to be served concurrently.

Defendant raises the following contentions on appeal:

POINT I

THE EXCLUSIONARY RULE REQUIRED SUPPRESSION BECAUSE THE EVIDENCE WAS OBTAINED IN VIOLATION OF [DEFENDANT]'S CONSTITUTIONAL RIGHT TO BE FREE FROM RACIALLY[-]INFLUENCED POLICING AND UNREASONABLE SEARCHES AND SEIZURES.

A. THE DISPATCHER'S DECISION TO ISSUE A BOLO FOR A BLACK MALE, WHEN THE VICTIM EXPRESSLY STATED THAT SHE DID NOT KNOW THE RACE OF THE SUSPECT, ESTABLISHED A PRIMA FACIE CASE OF RACIAL TARGETING THAT THE STATE DID NOT, AND CANNOT, REBUT.

B. THE DISPATCHER'S FAILURE TO TRANSMIT AN ACCURATE DESCRIPTION WAS OBJECTIVELY UNREASONABLE AND THUS VIOLATED THE FOURTH AMENDMENT AND STATE CONSTITUTION.

C. THE STOP AND FRISK WAS NOT VALID UNDER AN INDEPENDENT-SOURCE ANALYSIS.

II.

The scope of our review of a suppression hearing is limited. See State v. Handy, 206 N.J. 39, 44–45, 18 A.3d 179 (2011). We "must uphold the factual findings underlying the trial court's decision, so long as those findings are 'supported by sufficient credible evidence in the record.' " State v. Evans, 235 N.J. 125, 133, 193 A.3d 843 (2018) (quoting State v. Elders, 192 N.J. 224, 243, 927 A.2d 1250 (2007) ). "An appellate court ‘should give deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.’ " Elders, 192 N.J. at 244, 927 A.2d 1250 (quoting State v. Johnson, 42 N.J. 146, 161, 199 A.2d 809 (1964) ).

In contrast to the deference we owe to a trial court's factual and credibility findings, we review a trial court's legal conclusions de novo. State v. S.S., 229 N.J. 360, 380, 162 A.3d 1058 (2017). Because issues of law "do not implicate the fact-finding expertise of the trial courts, appellate courts construe the Constitution, statutes, and common law de novo—with fresh eyes—owing no deference to the interpretive conclusions of trial courts, unless persuaded by their reasoning." Ibid. (internal quotation marks omitted) (quoting State...