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Roadside statements inadmissible were improper roadside stop
State v. Alessi,
(A-41/42-17) Decided January 27, 2020
TIMPONE, J., writing for the Court.
The Court considers whether the police may pull over a driver for questioning in furtherance of an investigation without reasonable suspicion that she committed a crime or traffic violation.
In 2011, defendant Donna Alessi began dating Philip Izzo, a construction official for Raritan Township who supervised the construction staff, including Mark Fornaciari. Fornaciari filed a whistleblower claim, naming Izzo as a defendant. In preparing his defense, Izzo took Fornaciari’s personnel file and stored it in his truck. In 2013, the relationship between defendant and Izzo ended. One night in June 2013, Izzo went to a bar in Hillsborough Township. Defendant saw Izzo, went to the parking lot, entered his truck, and removed some of her personal items as well as the personnel file, which she mailed to Fornaciari. The package wound up at the construction office because of an issue with the address, and the police were called. They determined through post office surveillance footage that defendant had mailed the package.
Detective Benedict Donaruma made several attempts to contact defendant: he called and left voicemails, and he left his business card in her door. On another day, he knocked at defendant’s door and, seeing a woman in her home, called out to her. He later testified that all of these methods of initiating contact generally lead to responses. On the day when Donaruma saw the woman in defendant’s home, he waited to see if she would leave. After a couple of minutes, he spotted defendant’s vehicle on a local road. Though Donaruma did not observe her commit a traffic violation, he pulled behind her in his marked patrol car and activated the overhead lights. When defendant stopped, he approached her car and said he wanted to discuss his investigation. Over the course of the questioning, Donaruma informed defendant multiple times that she was free to leave.
According to Donaruma, defendant initially denied involvement but then admitted she sent the package at the behest of her then-boyfriend Izzo in an effort to get Fornaciari and another person in trouble with the Township. Defendant conceded she and Izzo drafted the letter enclosed in the package together, and she intentionally listed the wrong return address so the package would end up with the Township.
Police arrested Izzo on charges of official misconduct and misapplication of entrusted property. Upon arrest, Izzo gave a statement claiming the personnel file had been stolen out of his truck at the bar. Defendant later gave another statement in the presence of her attorney, which was later played at her trial. In it, defendant indicated that, by the time she mailed the package, she was no longer dating Izzo. She asserted she had permission to enter Izzo’s truck and remove her personal effects, and that she accidentally grabbed the personnel file. Upon realizing her mistake, she decided to send it back to Fornaciari to spite Izzo and help with the lawsuit.
Defendant was arrested and charged with false reporting, hindering apprehension, and burglary. She moved to suppress her roadside statement based on a violation of the Fifth Amendment. The court denied her motion and admitted the statement at trial. A jury found defendant guilty on all three counts.
The Appellate Division reversed her convictions, holding that the roadside stop was unconstitutional. Following a motion for reconsideration, the Appellate Division changed course as to the burglary conviction, determining that there was clear evidence that defendant entered Izzo’s truck without permission and removed the personnel file.
Both sides sought certification. The Court granted defendant’s petition, “limited to the issue of whether the burglary conviction also should have been reversed due to the admission of defendant’s incriminating roadside statement, which influenced the jury’s determination as to defendant’s credibility.” 232 N.J. 289 (2018). The Court also granted the State’s cross-petition in full. 232 N.J. 293 (2018). Following oral argument, the Court retained jurisdiction but remanded the case, directing the trial “court to make a record and findings of fact and law on whether the officer’s stop of defendant’s vehicle was constitutional.” ___ N.J.___ (2018). The judge concluded that “the stop and resultant seizure [were] unconstitutional.”
HELD: The circumstances of this case do not legitimize the stop. Law enforcement must have reasonable and articulable suspicion of a traffic violation, the commission of a crime, or unlawful activity before executing a traffic stop. Accordingly, the roadside statement given by defendant during the unlawful stop should have been excluded at trial, and the Court affirms the Appellate Division’s reversal of her convictions for hindering apprehension and false reporting. Because defendant’s roadside statement permeated the trial, severely affecting her credibility and ability to mount a defense to the separate burglary charge, that conviction is reversed as well.
1. Courts evaluate the totality of the circumstances to determine whether an officer had a reasonable suspicion that justified an investigatory stop. The Court reviews cases in which it has determined the constitutionality of a stop where the officer’s suspicion was not based on an observed traffic violation and notes that those decisions reveal a highly fact-intensive inquiry.
2. Based solely on the knowledge available to Donaruma at the time he pulled defendant over, he could not have reasonably suspected defendant participated in a crime. Donaruma testified on remand that defendant was not the target of his investigation or even a suspect at the time he stopped her. Donaruma stopped defendant to develop his investigation into Izzo. From an objective perspective, defendant’s actions on the post office surveillance footage were not reasonably more consistent with guilt than innocence. That defendant did not respond to the officers’ calls or visits does not alter that conclusion; as the trial judge noted, there was no testimony that Donaruma became suspicious due to defendant’s elusive behavior. A law enforcement officer cannot use an automobile stop merely for the purpose of a police interview and without observing a traffic violation or having a reasonable suspicion of other criminal activity. Because the stop in this case was unconstitutional, the Court does not address defendant’s additional argument that the scope of the stop was unreasonable.
3. Courts will not exclude evidence sufficiently attenuated from the taint of an unconstitutional stop. The Court reviews the three factors in an attenuation analysis and determines defendant’s statement to Donaruma was not so attenuated from the initial stop as to avoid application of the exclusionary rule. Without that statement, defendant’s convictions for false reporting and hindering apprehension cannot stand.
4. Finally, the Court reviews the application of defendant’s roadside statement to her burglary charge. Defendant’s guilt hinged on whether she had permission to enter Izzo’s truck. If the jury believed defendant’s version of events over Izzo’s, then it would not have found defendant guilty of burglary. Yet, this was unlikely in light of the State’s exploitation of contradictions between defendant’s roadside statement and the statement she gave later, with counsel present. Additional facts in the record support defendant’s claim that she had permission to enter the truck, and Izzo had his own credibility issues. Had the trial court initially excluded defendant’s roadside statement, defendant’s credibility would have remained intact because the State would never have had the opportunity to highlight the falsehoods she told Donaruma. The admission of the roadside statement was “clearly capable of producing an unjust result,” R. 2:10-2, because there is reasonable doubt as to whether the jury would have found defendant guilty of burglary in its absence. The Court does not pass judgment on the merits of whether defendant burgled Izzo’s truck.
The judgment of the Appellate Division reversing defendant’s convictions of hindering apprehension and false reporting is AFFIRMED, defendant’s conviction for burglary is REVERSED, and the matter is REMANDED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’S opinion.