STATE OF NEW JERSEY VS. KASIB M. FORD (16-03-0204 AND 16-04-0286, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2878-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KASIB M. FORD, a/k/a
QUASIM WILLIAMS,

Defendant-Appellant.
_______________________________

Argued March 12, 2018 – Decided August 20, 2018

Before Judges Accurso, O'Connor and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment Nos.
16-03-0204 and 16-04-0286.

Joshua D. Sanders, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Joshua D. Sanders, on the brief).

Sarah E. Elsasser, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Sarah E.
Elsasser, on the brief).

PER CURIAM
 Following the denial of his motion to suppress evidence

seized in a warrantless search, defendant Kasib M. Ford pled

guilty to unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b)(1), and was sentenced in accordance with a supplemental

non-negotiated plea form to a term of nine-and-one-half years in

State prison with a forty-two month period of parole

ineligibility, concurrent to an aggregate nine-year term on an

unrelated indictment. Defendant appeals from the denial of his

motion to suppress the handgun found in a bag he was carrying at

the time of his arrest. We reverse.

The only witness to appear at the suppression hearing was

the arresting officer. He testified he and his partner were

dispatched in October 2015 to an address on Jefferson Avenue in

Elizabeth on a report of "shots fired." In route, they were

advised the suspect, "a black male carrying a bag," was walking

toward Kellogg Park. Within a minute or so, they saw defendant,

a black male carrying two bags, "come from the direction of the

park" and cross North Avenue. Although it was dark, the officer

testified he had no trouble seeing defendant because the

streetlights provided ample light.

The officer testified his partner immediately stopped their

patrol car, and, "[d]ue to the nature of the call," he drew his

service weapon as he got out and ordered defendant "to stop and

2 A-2878-16T1
put his hands up at gunpoint." According to the officer,

defendant "dropped both bags, [but] he did not put his hands

up." Instead, defendant, who had been walking toward the

officers, "just kept walking west on North Avenue" in the

direction of the officers. Defendant ignored several more

commands to raise his hands and stop. As defendant turned into

the street away from the officers, another patrol car arrived,

cutting him off. The officer estimated defendant had by then

walked twenty to twenty-five feet toward the officers from where

he dropped the bags and another fifteen feet after turning into

the street. When asked on cross-examination whether defendant

could have at any point "disengage[d]" the contact, the officer

replied, "my position was to stop him because I believed he was

a suspect in a shooting."

According to the officer, after the second patrol car

arrived, defendant "went down to his knees." The officers,

however, had "order[ed] him to the ground, based again on the

nature of the call." When he "refused to cooperate with any

further orders," the officers "used force against him to get him

to the ground and to get him handcuffed." The officer described

the bags defendant had been carrying as a "drawstring-type

backpack" and "a plastic shopping bag." Inside one of the bags,

the officer found a loaded .45 caliber handgun. A search

3 A-2878-16T1
incident to arrest revealed ammunition for the gun in a front

pocket of defendant's pants.

In response to questions from the court about the sequence

of events, the officer testified he was "already out of the car"

with his "gun drawn" when defendant "dropped the bags." When

the court asked whether he had "said anything to Mr. Ford yet,"

the officer replied "it kind of happened real fast" and he did

not "know whether it was as [he] was saying things [defendant]

dropped the bags" but agreed it was "about the same time."

When the court returned to the timing a few minutes later

in an effort to pinpoint the sequence, the court engaged in the

following exchange with the witness:

Court: So you get out of the car. You have
your weapon drawn. You're now telling Mr.
Ford, Stop, and Show me your hands.

Officer: Correct.

Court: And, at that point, he drops the
bags.

Officer: It was kind of a simultaneous
thing. It — it wasn't very prolonged.

Court: You mean the conversation?

Officer: Yes.

Court: So — but, in other words, I'm guess
I'm trying to figure out — you're getting
out of the car.

Officer: Mm-hmm.

4 A-2878-16T1
 Court: You have your gun drawn.

Officer: Mm-hmm.

Court: You're, I guess, right away telling
him, Stop, and, Let me see your hands.

Officer: Correct.

Court: And pretty much right away does he
drop the bags or —

Officer: Yes. He dropped the bags right
away.

In response to further questions from the court, the

officer described the area as a mixed residential and commercial

neighborhood, with "a very active park," near a train station, a

school and a Stop and Shop. The officer told the court it was

not a high crime area, and he and his partner "were actually

surprised that there was this type of call in that area." He

testified if he and his partner "hadn't been dispatched to a

call of shots fired and given the suspect description that

[they] were given, [they] probably would have continued to drive

right past Mr. Ford."

The court first noted the officer was "very credible,"

"calm, clear, consistent" and his testimony straightforward.

The court found no question but that the officer "had his weapon

drawn as he got out of the car." Finding defendant obligated to

stop when ordered by the officer, "[w]hether he thought the

5 A-2878-16T1
officer was right or wrong, [or] whether he liked the fact that

a gun was pointed at him," and that he did not stop but instead

dropped the bags and walked away, the court found defendant

abandoned the bags.

Based on the officer's testimony, the court concluded that

what the police "were doing here, [is] they were making a field

inquiry." In considering "the totality of the circumstances,"

the court found:

that basically the officer, even though he
had his gun drawn, and I put on the record
that certainly in a report of shots fired
the officer has a right to have his gun
drawn, basically it was the defendant who
turned what really was going to be a field
inquiry into an investigative detention and
ultimately into probable cause to arrest and
certainly to search those bags.

Assessing the reasonableness of the officer's conduct, the

court concluded:

[T]he police officers had every right to
approach Mr. Ford. There was a report of
shots fired, black male carrying a bag,
coming from the general direction of the
area where the shots were fired, walking
through the park. Again, not a particular
description. No, there was no complexion,
no hair, facial hair. But generally Mr.
Ford fit the description, and the police
have a duty to investigate suspicious
behavior, and certainly shots fired is
suspicious behavior, and they had every
right to stop Mr. Ford, certainly to
inquire, Where are you coming from? What's

6 A-2878-16T1
 your name? Where are you going? A field
inquiry.

But that field inquiry escalated to an
investigative detention not by the police,
by Mr. Ford dropping the bags, which I think
is suspicious, refusing to obey the
officer's commands. I mean, it developed
into a reasonable and articulable suspicion
that criminal activity had occurred.

. . . .

So I find that the stop was lawful,
even though I do find it was abandoned
property for all the reasons I set forth on
the record. Certainly the police had the
right to approach Mr. Ford, stop him,
ultimately attempt to place him under
arrest, which they did. He did resist. He
was subdued by other police officers. . . .
And I find certainly that the search of the
bag was lawful.

Defendant appeals, arguing the police "did not possess

reasonable suspicion sufficient to stop [defendant] at gunpoint,

and the evidence obtained after the unconstitutional seizure was

not sufficiently attenuated from the taint of that

unconstitutional stop to justify its admission into evidence."

The State counters that defendant voluntarily abandoned the

bags, making the subsequent search and seizure proper; that the

officer had reasonable and articulable suspicion to believe

"defendant had engaged or was about to engage in criminal

activity and was attempting to flee the area"; and even assuming

defendant was illegally stopped, suppression of the evidence was

7 A-2878-16T1
unwarranted because defendant committed the crime of obstruction

by fleeing from the officer.

Our standard of review on a motion to suppress is well

established. State v. Gamble, 218 N.J. 412, 424-25 (2014). We

defer to the trial court's factual findings on the motion,

unless they were "clearly mistaken" or "so wide of the mark"

that the interests of justice require appellate intervention.

State v. Elders, 192 N.J. 224, 245 (2007) (internal quotations

omitted). Our review of the trial court's application of the

law to the facts, however, is plenary. State v. Hubbard, 222

N.J. 249, 263 (2015).

Stated differently, while "a reviewing court should take

care both to review findings of historical fact only for clear

error and to give due weight to inferences drawn from those

facts by resident judges and local law enforcement officers,"

the trial court's "determinations of reasonable suspicion and

probable cause should be reviewed de novo on appeal." Ornelas

v. United States, 517 U.S. 690, 699 (1996). Applying that

standard here, we note we have no quarrel with the trial court's

careful fact finding. We disagree about what those facts mean

for the constitutionality of this stop.

In our view, the key facts established by the court's

careful questioning of the officer are that he was "already out

8 A-2878-16T1
of the car" with his "gun drawn" when defendant "dropped the

bags." Accordingly, the issue in this case was never the

distinction between a field inquiry and an investigative

detention. See State v. Rosario, 229 N.J. 263, 272-73 (2017).

Police do not conduct a field inquiry with a citizen at the

point of a gun. See State v. Rodriguez, 172 N.J. 117, 126

(2002).

Defendant was seized within the meaning of the Fourth

Amendment the moment the officer pointed his gun at defendant

and told him to stop and put his hands up.1 See Kaupp v. Texas,

538 U.S. 626, 629-30 (2003); United States v. Mendenhall, 446

U.S. 544, 554 (1980); State v. Crawley, 187 N.J. 440, 450

(2006). Having established that this was, at the very least, an

investigative detention of defendant from the first moment of

the encounter, see Terry v. Ohio, 392 U.S. 1, 9, 16 (1968), the

question is whether the police had a reasonable suspicion,

grounded in specific and articulable facts, that defendant was

involved in the "shots fired" incident. See Rodriguez, 172 N.J.

at 126.

1
Because the facts were undisputed the officer got out of the
car and pointed his gun at defendant before defendant did
anything, we reject the court's conclusion that this was ever a
field inquiry or that it "escalated to an investigative
detention not by [actions of] the police, [but] by Mr. Ford."

9 A-2878-16T1
 We think the obvious answer to that question is no. The

officer candidly testified there was nothing beyond the dispatch

to make him believe defendant might be carrying a gun, and had

he and his partner not "been dispatched to a call of shots fired

and given the suspect description" of "a black male carrying a

bag" that they "probably would have continued to drive right

past Mr. Ford." The clear import of that testimony is that

defendant was not doing anything suspicious to draw the

attention of the officers.2 He was simply a black man walking in

a well-lit commercial and residential area, not known for its

crime, near a train station and a supermarket carrying a

backpack and a plastic shopping bag on a fall evening in

Elizabeth.

The dispatched description of the suspect would certainly

have been enough to permit the officers to approach defendant to

ask him some questions, but only because a field inquiry of that

sort requires no suspicion at all. See Rosario, 229 N.J. at

272. Even assuming the reliability of the dispatched report,

2
Because defendant only dropped his bags after the officer
jumped from his patrol car and pointed a gun at him, we reject
the trial court's finding that defendant's dropping the bags
could constitute reasonable suspicion justifying the stop. See
Rosario, 229 N.J. at 277 (explaining that suspicious behavior
occurring after instigation of an investigative detention
"can[not] be used, post hoc, to establish the reasonable and
articulable suspicion required at the outset").

10 A-2878-16T1
which we do for purposes of this analysis, see State v. Golotta,

178 N.J. 205, 219 (2003), it cannot support the investigatory

stop that occurred here for the obvious reason that the

description provided nothing more than the suspect's race and

sex. See Gamble, 218 N.J. at 429 (explaining when an "anonymous

tip is conveyed through a 9-1-1 call and contains sufficient

information to trigger public safety concerns and to provide an

ability to identify the person, a police officer may undertake

an investigatory stop of that individual") (emphasis added).

That the black male suspect was reportedly carrying "a bag"

added little, indeed so little the officers had no hesitation

stopping defendant, a black man carrying two bags. When one

considers that the "detail" of the undescribed bag was offered

to help identify a black man in a mixed commercial and

residential neighborhood in Elizabeth near a Stop and Shop and

the train station, its value as an identifier is clearly

revealed as nil.

As the Supreme Court reminded in State v. Shaw, 213 N.J.

398, 409 (2012), "[p]eople, generally, are free to go on their

way without interference from the government. That is, after

all, the essence of the Fourth Amendment — the police may not

randomly stop and detain persons without particularized

suspicion." We think it plain defendant did not forfeit his

11 A-2878-16T1
constitutional right to walk near a city park unmolested by

police simply because he was of the same race as a suspect

sought in connection with a report of shots fired nearby.

Having determined the police lacked a constitutional basis

for their investigatory stop of defendant, we turn to consider

whether defendant can be considered to have abandoned the bags

or whether his motion to suppress the gun was properly denied

because of defendant's failure to obey the officer's orders.

Turning first to abandonment, the Supreme Court held in

State v. Tucker, 136 N.J. 158, 170-73 (1994), that contraband

discarded after an unreasonable seizure was not abandoned. We

reject as unsupported by the evidence the State's assertion that

defendant dropped the bags "at the same time" the officer got

out of his patrol car and before the officer ordered him to stop

and put up his hands. The court's questioning of the officer

made clear, as the court found, that the officer was already out

of the car with his gun drawn before defendant dropped the bags.

As we have determined that seizure to have been unreasonable, we

reject the court's finding that defendant abandoned the bags.

That leaves the question of whether the trial court

correctly denied the motion based on defendant's failure to obey

the officer's orders. An analysis of that question has to begin

with the understanding that in New Jersey "a person has no

12 A-2878-16T1
constitutional right to flee from an investigatory stop, 'even

though a judge may later determine the stop was unsupported by

reasonable and articulable suspicion.'" State v. Williams, 192

N.J. 1, 11 (2007) (quoting Crawley, 187 N.J. at 458). The Court

held in Crawley that "a defendant may be convicted of

obstruction under N.J.S.A. 2C:29-1 when he flees from an

investigatory stop, despite a later finding that the police

action was unconstitutional." 187 N.J. at 460.

In Crawley, the arresting officers received a radio

dispatch that there was "a man armed with a gun" at the Oasis

Bar on South Orange Avenue in Newark. Id. at 444. "The

dispatcher described the suspect as a young black male, 5'5" to

5'7" tall, weighing about 150 pounds, and wearing a green

jacket, red shirt, blue jeans, and black boots." Ibid. "Less

than two minutes later," the officers saw a young man, Crawley,

who "matched exactly the dispatcher's description of the

suspect," walking along South Orange Avenue near the bar. Ibid.

The officers knew that part of South Orange Avenue as "[a] very

high narcotics area," and referred to the Oasis as a "notorious

bar" known for "[a] lot of weapons offenses." Ibid. When one

of the officers called from his open car window, "Police. Stop.

I need to speak with you," Crawley took off running. Id. at

444-45.

13 A-2878-16T1
 The question for the Court was whether Crawley could be

convicted of violating the obstruction statute, N.J.S.A. 2C:29-

1, which prevents a person from purposely preventing a public

servant "from lawfully performing an official function by means

of flight," even if the stop was deemed unconstitutional because

accomplished without reasonable, articulable suspicion.

Crawley, 187 N.J. at 451. The Court held "a police officer

acting on a dispatch may be 'lawfully performing an official

function' even if a court later determines that reasonable

suspicion was lacking to justify the stop," so long as the

officer acted "in objective good faith, under color of law in

the execution of his duties." Id. at 451, 460-61.

The Court, however, took pains to note that good faith is

judged by an objective standard. Id. at 461 n.8. Justice

Albin, writing for the Court in Crawley, explained:

A police officer who reasonably relies on
information from headquarters in responding
to an emergency or public safety threat may
be said to be acting in good faith under the
statute. However, a police officer who
without any basis arbitrarily detains a
person on the street would not be acting in
good faith.

[Ibid.]

If defendant violated the obstruction statute, that would be a

criminal offense, supporting his arrest and the search incident

14 A-2878-16T1
that uncovered the gun. Obstructing the police could well

constitute a break in the chain from the unlawful investigatory

stop. See Williams, 192 N.J. at 11.

Whether defendant violated the obstruction statute is not

easily answered here for two reasons. First, the facts on this

point were not as well-developed as the sequence of events.

Second, is the question of the officer's objective good faith in

stopping defendant at gunpoint.

Although there is no doubt that defendant failed to comply

with the officer's orders, defendant did not run from the

officers. He walked towards them. Indeed, the officer

testified he was "backing up. . . . [n]ot wanting [defendant] to

get too close to [him]." Further, defendant did not struggle

with the officers, but instead went "down to his knees." The

officer testified, however, that defendant had been "order[ed]

. . . to the ground, based . . . on the nature of the call."

The officers "used force against [defendant] to get him to the

ground" from his knees. There is also the question of whether

the officer, who stopped defendant based, essentially, on

15 A-2878-16T1
nothing more than his race, could be deemed to have been acting

in objective good faith in the discharge of his duties.3

We need not resolve those questions, however, because we

conclude that even assuming the officers had probable cause to

arrest defendant for obstruction, they did not obtain "the

evidence by means that are sufficiently independent to dissipate

the taint of their illegal conduct." State v. Johnson, 118 N.J.

639, 653 (1990).

Evidence seized in a warrantless search not justified by an

exception to the warrant requirement is subject to suppression

under the exclusionary rule. Williams, 192 N.J. at 14. As the

Supreme Court has recently reiterated, "[t]he appropriate

inquiry for courts assessing the admissibility of the evidence

is whether" it "was 'the product of the "exploitation" of [the

unconstitutional police action] or of a "means sufficiently

distinguishable" from the constitutional violation such that the

"taint" of the violation was "purged."'" State ex rel. J.A., __

N.J. __ (2018) (slip op. at 23) (quoting Shaw, 213 N.J. at 414).

To determine the answer to that question, New Jersey courts

3
We hasten to add here that the record offers no basis to
question the officer's subjective good faith. Although we are
limited to the cold record, our review confirms the trial
court's view of the officer's testimony as "very credible,"
"calm, clear [and] consistent." We detected no hint of bias.

16 A-2878-16T1
consider the three factors identified by the United States

Supreme Court in Brown v. Illinois, 422 U.S. 590, 593-94 (1975):

"(1) 'the temporal proximity' between the illegal conduct and

the challenged evidence; (2) 'the presence of intervening

circumstances'; and (3) 'particularly, the purpose and flagrancy

of the official misconduct.'" J.A., __ N.J. __ (slip op. at 23)

(quoting Shaw, 213 N.J. at 415).

Applying those factors here, we cannot conclude defendant's

conduct after being confronted at gunpoint by police while

walking on a public street was such as to cause a break in the

causative chain between the officer's unconstitutional

investigative detention and the discovery of the gun. First,

there was no temporal break between the stop and discovery of

the gun in one of the bags defendant was holding when confronted

by police. Although generally considered the least important of

the three factors, see State v. Worlock, 117 N.J. 596, 622-23

(1990), the closeness in time between the unconstitutional stop

and the discovery of the handgun favors defendant.

Second, as we have already discussed, under the

circumstances presented, namely that defendant, although

certainly failing to cooperate, neither ran from police nor

resisted arrest after going "to his knees," we would be hard

pressed to find "an intervening act that marked 'the point at

17 A-2878-16T1
which the detrimental consequences of illegal police action

become so attenuated that the deterrent effect of the

exclusionary rule no longer justifies its cost.'" Williams, 192

N.J. at 16 (quoting State v. Casimono, 250 N.J. Super. 173, 184-

88 (App. Div. 1991), certif. denied, 127 N.J. 558, cert. denied,

504 U.S. 924 (1992)). Accordingly, we do not find the second

"intervening events" factor, often the most important in the

analysis, see ibid., as weighing significantly in favor of the

State here.

Third, although we are satisfied, based on the trial

court's findings, that the officers had no purposeful intent to

violate defendant's rights, "[a] random stop based on nothing

more than a non-particularized racial description of the person

sought is especially subject to abuse," Shaw, 213 N.J. at 421,

and, in our view, compels the suppression of the handgun here.

In sum, we reverse the trial court's denial of defendant's

motion to suppress, vacate the judgments of conviction, and

remand to the trial court for further proceedings in light of

the suppression of the handgun. We do not retain jurisdiction.

Reversed and remanded.

18 A-2878-16T1