State v. Miller

1

STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAHEEM T. MILLER, a/k/a RAHEEM MILLER, Defendant-Appellant.

No. A-1587-22

Superior Court of New Jersey, Appellate Division

May 28, 2024

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.

Argued April 17, 2024

On appeal from the Superior Court of New Jersey, Law Division Camden County, Indictment No. 21-08-2318.

Peter Thomas Blum, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Peter Thomas Blum, of counsel and on the brief).

Jason Magid, Assistant Prosecutor, argued the cause for respondent (Grace C. MacAulay, Camden County Prosecutor, attorney; Jason Magid, of counsel and on the brief).

Before Judges Firko and Susswein.

PER CURIAM.

Defendant Raheem T. Miller appeals his guilty plea conviction for possession of a firearm by a previously convicted person N.J.S.A. 2C:39-7(b)(1). Specifically, he challenges an August 2, 2022 Law Division order denying his motion to suppress the handgun he attempted to discard while grappling with a detective during a stop and frisk. The trial court ruled the investigative detention was not predicated upon reasonable articulable suspicion and thus was unlawful. However, the trial court also ruled that under the attenuation exception to the exclusionary rule, by removing the gun from a concealed fanny pack and throwing it to the ground during the physical struggle, defendant's resistance broke the chain of causation between the unlawful stop and the discovery and seizure of the weapon. We affirm.

I.

We discern the pertinent facts and procedural history from the record. A detective for the Narcotics Gang Unit of the Camden County Police Department was the State's sole witness at the suppression hearing. His partner was called to testify by the defense. Footage from both officers' body worn cameras (BWCs) was admitted. The following evidence was presented at that hearing.

On May 31, 2021, streets were closed off in the Centerville neighborhood of Camden for a block party. Police obtained information through social media that a male juvenile, T.G would be bringing a gun to Centerville.

The detective-who was familiar with T.G. from prior encounters-was conducting surveillance in an unmarked police vehicle around the 1200 block of Chase Street. At about 5:00 p.m., the detective spotted T.G. walking with other males who ranged from fifteen to seventeen years old. At this point, T.G. was about a five-to-ten-minute walk from Centerville.

The detective testified the four males were "walking around aimlessly." He observed them enter a residence on Chase Street where they remained inside for approximately fifteen minutes. When they exited the residence, they traveled down Louis Street until they reached the 1100 block of Lansdowne Avenue, where they entered a second residence. When they exited the Lansdowne residence, the detective noticed they all were wearing different clothing. They were now wearing long pants and sweatshirts. The group then traveled toward the Centerville neighborhood.

The detective radioed other officers to stop T.G. and the other three juvenile males. The detective was not present for the stop because he was delayed in traffic due to the block party. T.G. and another juvenile complied when officers ordered them to stop on Sheridan Street. The other two males ran from the scene, heading south on Sheridan Street, which runs parallel to Carl Miller Boulevard. About a minute or two after receiving the radio communication, the detective exited his car around the 900 block of Carl Miller Boulevard. The detective was not in uniform but was wearing a utility vest marked "Camden County Police Department."

The detective observed a male wearing a gray sweatsuit-defendant- walking out of an alleyway from Sheridan Street located about 100 feet from where the attempted stop of the four juveniles occurred. Defendant had the hood of his sweatshirt over his head and his hands in his pockets. The detective believed that was incompatible with the warm weather.

Defendant walked directly towards the detective. The detective radioed his supervisor "to get a better description of the males that ran"-in case defendant had also run during the earlier stop. There was no indication he tried to avoid the detective. As defendant drew close, the detective asked, "[y]ou all right, buddy? You all right?" At that point, the detective grabbed defendant's arm with one hand and put his other hand on defendant's chest. The detective told defendant, "[y]our heart's pounding, bro." The detective noticed a "large bulge" under defendant's sweatsuit. While holding defendant's arm, the detective ordered, "[h]old on. Don't move."

After making a brief radio transmission to his supervisor, the detective told defendant to "put your hands behind your back." The detective acknowledged at the hearing that defendant, who was twenty-eight years old, was not one of the three juveniles he had observed walking with T.G. The detective explained:

At this point the bulge, he had a large bulge. He had the sweatsuit, which really didn't correspond with the weather. And at that point I was unable to confirm who exactly ran from the area, so at that point I believed he was possibly armed and dangerous and involved.

The detective attempted to secure defendant by putting his hands behind his back. Defendant did not comply and attempted to pull away from the detective's grasp. While the detective held defendant's sleeve, defendant took his sweatshirt off. The detective stated, "[b]ro, stop moving." As defendant's sweatshirt was coming off, the "bulge" was revealed to be a fanny pack. About six seconds after defendant first tried to pull away, the detective pulled defendant close and held him from behind in a bear hug. Defendant continued to struggle. They remained in that position for about fourteen seconds.

The detective testified that while he was holding defendant, defendant reached into the fanny pack, removed a gun, and tossed it onto the sidewalk. Defendant asked passers-by to take the gun, but they ignored him. Other officers arrived and helped subdue defendant. Police recovered the gun lying on the sidewalk.

As the encounter with defendant was transpiring, the detective's partner was searching for the two juveniles who fled from the attempted stop. His partner's BWC recording shows that as he was searching for the two juveniles, he received a radio transmission about "an older dude" who had "tossed a gun." At the hearing, the detective's partner acknowledged defendant was not one of the four youths.

In August 2021, defendant was charged by indictment with: (1) second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); (2) fourthdegree possession of a defaced handgun, N.J.S.A. 2C:39-3(d); (3) third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3); and (4) second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1).

The evidential suppression hearing was convened on June 15, 2022. On August 2, 2022, the trial court denied defendant's motion to suppress in an oral decision. The trial court concluded the detective did not have reasonable suspicion to stop defendant, noting "an anonymous tip alone is not enough to support a stop because the level of reliability is unchecked and low." The trial court stressed, moreover, that defendant "was not the subject of the tip, nor part of the group of males with whom the suspect had been with, a fact known by the detective." The trial court noted "the only facts that the officer witnessed is that the [d]efendant was wearing clothing similar to the others that was too heavy for the weather, a fact not apparent to the [c]ourt from the video."

Although he found the stop and frisk of defendant was unlawful, the trial court nonetheless denied defendant's motion to suppress the gun because defendant's obstruction attenuated the initial illegality and provided a basis to arrest defendant and seize the gun that was discarded during the struggle. The trial court applied the three-factor attenuation test set forth in State v. Williams, 192 N.J. 1 (2007).^[1]

As to the first factor, the trial court held the short timeframe of the encounter weighed in favor of suppression, finding "[h]ere, there was no material time, as shown on the video. At most seconds between the beginning of the illegal seizure of the[d] efendant and the ultimate seizure of the challenged evidence." As to the second attenuation factor, the trial court found defendant's obstruction was "an intervening circumstance, as reflected on the video." As to the third factor, "[t]here is nothing to show the police did not act in good faith." The trial court concluded, "the second and third prong of the factors outweigh the first. Defendant's resistance and efforts to dispose of the gun turns what would otherwise have been an unconstitutional violation into a legal search." In reaching that fact-sensitive conclusion, the trial court stressed that defendant actively resisted the stop prior to him throwing the gun away, finding "[t]his resistance is clearly shown on the video and started before he threw the gun away." The court determined [d]efendant's conduct at that moment makes the gun admissible.

On September 22, 2022, defendant pled guilty pursuant to a plea agreement to second-degree possession of a firearm by a previously convicted person. The State agreed to dismiss the remaining charges and to cap the overall sentence at five years-the bottom of the second-degree range. On January 20,...