State of New Jersey v. William L. Scott
CourtNew Jersey Superior Court Appellate Division
Date FiledJanuary 31, 2023
DocketA-0529-21
StatusPublished
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Full Opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0529-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. January 31, 2023
APPELLATE DIVISION
WILLIAM L. SCOTT,
Defendant-Appellant.
_________________________
Argued October 25, 2022 – Decided January 31, 2023
Before Judges Sumners, Geiger and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Hudson County, Indictment Nos.
20-02-0189 and 20-03-0215.
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).
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 (2002). The motion court also rejected defendant's
contention that the stop and ensuing frisk were unlawful under the Fourth
Amendment.
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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
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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
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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
1
The State does not dispute the racial description in the BOLO alert was not
supported by the victim's report. The State did not present evidence or argue
that the mistake was made by someone other than the police dispatcher.
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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.
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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.
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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 (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
(2018) (quoting State v. Elders, 192 N.J. 224, 243 (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 (quoting State v. Johnson, 42 N.J. 146, 161
(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 (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 v.
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Morrison, 227 N.J. 295, 308 (2016)); see also Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995) (noting appellate courts are
not bound by a trial court's interpretations of the legal consequences that flow
from established facts). In the event of a mixed question of law and fact, we
review a trial court's determinations of law de novo but will not disturb a
court's factual findings unless they are "clearly erroneous." State v. Marshall,
148 N.J. 89, 185 (1997).
Under the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution and Article 1, Paragraphs 1 and 5 of the New Jersey
Constitution, a person's race may not be considered as a basis for making law
enforcement decisions other than when determining whether an individual
matches the description in a BOLO alert. Segars, 172 N.J. at 492–93; State v.
Nyema, 249 N.J. 509, 524 (2022) (citing Attorney General, Directive
Establishing an Official Statewide Policy Defining and Prohibiting the Practice
of "Racially-Influenced Policing" (June 28, 2005) (Directive 2005-1)).2
2
In Nyema, the Court noted:
The Attorney General appear[ed as amicus] for the
limited purpose of reiterating that racial profiling, in
all its forms, must be eliminated from policing
decisions. The Attorney General asserts that
consideration of a person's race or ethnicity—in
drawing an inference that an individual may be
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In Segars, the Court explained that a defendant advancing a claim of
racial discrimination "has the ultimate burden of proving by a preponderance
of the evidence that the police acted with discriminatory purpose, i.e., that they
selected him because of his race." 172 N.J at 493. In addition to that ultimate
burden, a defendant bears the preliminary obligation of establishing a prima
facie case of discrimination. Id. at 494. A prima facie case is one in which the
evidence, including any favorable inference to be drawn therefrom, could
sustain a judgment. Ibid. (citing Pressler, Current N.J. Court Rules, cmt. on R.
4:37-2(b) (2002)). Once a defendant establishes a prima facie case of
discrimination through relevant evidence and inferences, the burden of
production shifts to the State to articulate a race-neutral basis for the
challenged police action. Ibid.
The State's burden of production "has been described as so light as to be
'little more than a formality.'" Ibid. (quoting Mogull v. CB Com. Real Est.
Grp., 162 N.J. 449, 469 (2000)). "It is met whether or not the evidence
involved in criminal activity or in exercising police
discretion with respect to how the officer will deal
with that person—will not be tolerated and is
prohibited by Attorney General Law Enforcement
Directive No. 2005-1, which established a statewide
policy prohibiting the practice of "Racially-Influenced
Policing."
[249 N.J. at 523–24.]
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produced is found to be persuasive." Ibid. "In other words, the determination
of whether the party defending against an [e]qual [p]rotection challenge has
met its burden of production 'can involve no credibility assessment.'" Ibid.
(quoting Mogull, 162 N.J. at 469). The Court nonetheless stressed that "[f]or
the State to prevail, it cannot remain silent once a prima facie case has been
established by a defendant because the '[e]stablishment of the prima facie case
in effect creates a presumption that the [State] unlawfully discriminated
against the [defendant].'" Id. at 495 (second and third alterations in original)
(quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). However,
if the State articulates a race-neutral explanation for the challenged police
conduct, the presumption of discrimination "simply drops out of the picture."
Ibid. In that event, the defendant retains the ultimate burden of proving
discriminatory enforcement. Ibid.
The specific issue in Segars was whether the officer relied on race to
conduct a motor vehicle lookup of the defendant's car, which was parked in a
bank parking lot. Id. at 493. The officer testified he did not use the automated
teller machine (ATM) during the events in question, never saw Segars, and
thus he did not know Segars's race when running the search. Id. at 485–86.
He said the query was totally random and that he checked and ticketed others,
including a Caucasian motorist, during the same period. Ibid. Segars testified
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the officer used the ATM immediately before he did and passed him while
exiting the bank. Id. at 485. Segars "noticed that [the officer] sort of was
looking with sort of a question mark on his face. As [Segars] was getting
ready to use the machine, [the officer] was sort of looking back." Id. at 485.
The defense presented bank records to establish that the officer did, in fact, use
the ATM one minute before Segars. Id. at 487. The officer checked Segars's
plates two minutes after he saw him and, thus, did not testify accurately about
those occurrences. Ibid.
The Court reasoned, "[f]rom that evidence, a trier of fact could infer that
[the officer] checked Segars's plates because of his race and testified falsely
about what he did because he knew that racial targeting is wrong. Put another
way, Segars met his burden of establishing a prima facie case of selective
enforcement." Id. at 496–97.
The Court further explained that the State had presented
a race-neutral explanation not subject to a credibility
assessment at the production phase of the case. Both
parties having met their burdens of production, the
question then became whether, on the total record,
Segars met his burden of persuasion. Because the
evidence that raised the inference of racial targeting
also impeached [the officer's] race-neutral rationale, a
critical part of the State's rebuttal should have been
the production of an explanation for [the officer's]
inaccurate testimony. No such explanation was
forthcoming. That is the pivotal point in the case.
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[Id. at 497.]
The Court concluded an inference of discriminatory targeting was
established by Segars's testimony and documentary evidence, the officer's
inaccurate testimony, and the State's failure to recall the officer for an
explanation. Ibid. Because the State did not defeat the inference of
discrimination, the Court ruled that Segars established racial targeting and, on
that basis, invoked the exclusionary rule to suppress the State's evidence. Id.
at 498–99.
III.
Turning to the matter before us, the motion court found defendant had
not established a prima facie case of discrimination. In reaching that
conclusion, the motion court focused solely on the conduct of Officers Cirino
and Hernandez. In doing so, the court misconstrued defendant's equal
protection contention. We have no quarrel with the State's argument—and the
motion court's finding—that Officers Cirino and Hernandez cannot be faulted
for relying on the BOLO alert transmitted to them. But that finding misses the
point. Defendant does not argue that the officers themselves engaged in
racially-influenced policing. Rather, the gravamen of defendant's equal
protection claim is that the dispatcher committed a constitutional violation by
providing an unsupported description of the perpetrator's race. The issue
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before us is whether the dispatcher's inclusion of an unsupported racial
description supports an inference of discrimination sufficient to constitute a
prima facie case for purposes of the Segars burden-shifting template.
Before we can address whether the dispatcher's conduct supports an
inference of racial discrimination, we must consider the threshold question of
whether the actions of a dispatcher can be attributed to law enforcement for
purposes of establishing a prima facie case. Although we are aware of no
precedents concerning the role of police dispatchers with respect to equal
protection claims, we find helpful guidance, indeed clear instruction, in our
Supreme Court's decision in Handy, a Fourth Amendment case.
There, a police dispatcher mistakenly informed the police officer of a
warrant for the defendant's arrest, even though the first names were spelled
differently and the date of birth for the person subject to the warrant was
different from the defendant's birth date. Handy, 206 N.J. at 41–42. The
officer relied on the warrant information provided by the dispatcher and
arrested the defendant. Id. at 42. The Court concluded the dispatcher's error
was attributable to police and, on that basis, found the arrest was unlawful,
triggering the Fourth Amendment exclusionary rule. Ibid.
The Court reasoned that although the arresting officer's conduct was
objectively reasonable, "the dispatcher's actions were plainly unreasonable . . .
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in light of what the dispatcher actually knew." Id. at 47. The State conceded
that "the dispatcher was not attenuated from the arrest, but was an integral link
in the law enforcement chain." Id. at 50. The Court emphasized the dispatcher
"was literally a co-operative in [the arrest] along with the officer on the scene."
Id. at 52. Relatedly, the majority rejected the notion that a Fourth Amendment
exclusionary rule analysis is limited to the conduct of the arresting officer. Id.
at 54. It stated, "[u]nder that construct, police operatives, like the dispatcher
here, [would be] free to act heedlessly and unreasonably, so long as the last
man [or woman] in the chain does not do so. Nothing in our jurisprudence
supports that view." Ibid.
We see no reason to limit the Court's rationale to violations of the Fourth
Amendment—especially since the Attorney General Directive banning
racially-influenced policing expressly applies to "sworn officer[s] or civilian
employee[s] of a police agency acting under the authority of the laws of the
State of New Jersey." Directive 2005-1, § 2(a) (emphasis added). Because
we, no less than the Attorney General, are committed to deterring
discriminatory policing in all of its permutations, we reject the notion that a
police dispatcher can engage in racial discrimination without tainting ensuing
actions taken by sworn officers relying on the dispatcher's discriminatory
conduct. Accordingly, we hold a defendant can establish a prima facie case of
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discrimination through relevant evidence and inferences that a police
dispatcher engaged in impermissible racial targeting.
IV.
We next address the substantive question of whether defendant presented
a prima facie case of discrimination. Certainly, an inference can be drawn that
the dispatcher assumed the robber was Black, otherwise she would not have
included that racial description in the BOLO alert. See Segars, 172 N.J. at 494
(recognizing that inferences favorable to a defendant can be drawn in
determining whether a prima facie case has been established). The remaining
fact-sensitive question is whether another inference can be drawn that the
dispatcher's assumption was the product of racial prejudice. Defendant posits
there are only two explanations for why the dispatcher assumed the robber's
race: "(1) she deliberately included race based on her belief that Black men are
more likely to commit crime; (2) she included race because she unconsciously
associates Black men with criminality." Defendant argues that either of these
explanations would establish a prima facie case of racially-influenced policing.
There may well be other conceivable explanations for the dispatcher's
erroneous inclusion of a racial description. It is not our task, however, to
speculate on the State's behalf. The critical point is that a prima facie case "is
one in which the evidence, including any favorable inference to be drawn
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therefrom, could sustain a judgment." Id. at 494 (emphasis added). It does not
matter for purposes of establishing a prima facie case that there may be
alternate explanations. Indeed, that would put the cart before the proverbial
horse given that once a prima facie case is established, it falls upon the State to
offer a race-neutral explanation.
We next consider whether defendant was required to prove the
dispatcher acted with racial animus to establish a prima facie case or whether
evidence of "implicit bias" is sufficient to satisfy defendant's preliminary
obligation under Segars. We begin by emphasizing that one does not have to
be a racist to rely on stereotypes. It is clear in this regard that an officer or
civilian police employee can violate Directive 2005-1 by unconsciously
relying on such stereotypes. Although we are not bound by either the
Directive's broad definition of racially-influenced policing or the training
materials developed by the Attorney General pursuant to Section 3 of that
Directive, we find the Attorney General's reasoning to be persuasive. We
reiterate our Supreme Court recently cited to Directive 2005-1 as authority.
See Nyema, 249 N.J. at 524, 529–30. And as former Chief Justice Weintraub
commented in Eleuteri v. Richman, "[t]he judiciary, of course, is not the sole
guardian of the Constitution. The executive branch is equally sworn to uphold
it." 26 N.J. 506, 516 (1958).
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In State v. Andujar, a recent case involving the jury selection process,
our Supreme Court recognized the nature and scope of the problem of implicit
bias, explaining, "[i]mplicit bias refers to . . . attitudes or stereotypes that
affect our understanding, actions, and decisions in an unconscious manner.
Such biases . . . are activated involuntarily and without an individual's
awareness or intentional control." 247 N.J. 275, 302–303 (2021) (internal
quotation marks and citations omitted). The Court acknowledged that the
landmark cases on racial discrimination in jury selection—Batson v. Kentucky,
476 U.S. 79 (1986) and State v. Gilmore, 103 N.J. 508 (1986)—address
purposeful discrimination. Id. at 302. Even so, and importantly for purposes
of this appeal, the Court commented that "implicit bias is no less real and no
less problematic than intentional bias." Id. at 303. The Court added that
"[f]rom the standpoint of the State Constitution, it makes little sense to
condemn one form of racial discrimination yet permit another." Ibid.
Accordingly, the Court established a prospective new rule requiring that
implicit bias be considered as part of Gilmore analysis. Id. at 315.
In view of the Andujar Court's recognition of the constitutional harm
that can be caused by implicit bias, we likewise hold that implicit bias may be
considered as part of a Segars analysis notwithstanding that Segars provides
that a defendant bears the "ultimate burden of proving by a preponderance of
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the evidence that the police acted with discriminatory purpose." Segars, 172
N.J. at 493 (emphasis added). Accordingly, evidence of implicit bias can
support an inference of discrimination that would establish a prima facie case
under Segars, shifting the burden of production to the prosecutor.
But even if we were to hold that evidence of implicit bias is not
sufficient to establish a prima facie case of purposeful discrimination under
Segars, the evidence in this case, when viewed in a light favorable to
defendant's claim, supports the inference the dispatcher made a conscious
decision to infer the robber's race based on a prejudiced assumption about the
correlation of race and criminality.3 While any such inference of intentional
discrimination might be rebutted under the Segars burden-shifting paradigm,
the State was obliged—and failed—to do so.
To summarize, we believe defendant presented evidence establishing a
prima facie case, shifting the burden of production onto the prosecutor to
provide a race-neutral explanation for the dispatcher's assumption that the
robber was a Black man. As we have noted, the State's burden of production is
3
Segars explains that in determining whether a defendant has established a
prima facie case, a reviewing court may consider "favorable inferences" to be
drawn from the evidence. 172 N.J. at 493. In the absence of any explanation
for the dispatcher's motivation for assuming the robber was Black, the
evidence that supports an inference of unconscious bias would also tend to
support an inference of conscious bias.
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minimal. But so far as the record before us reflects, the prosecutor did not
investigate the circumstances of the dispatcher's decision and certainly never
called the dispatcher as a witness at the three-day-long suppression hearing or
introduced other evidence to explain why she included a racial description in
the BOLO alert. Moreover, as we reiterate throughout this opinion, the State
candidly acknowledged in its brief and at oral argument that, to this day, it
does not know why the dispatcher added the racial description. Cf. Segars,
172 N.J. at 495 ("For the State to prevail, it cannot remain silent once a prima
facie case has been established by a defendant . . . ."). Because defendant
presented a prima facie case of racial discrimination and the State failed to
meet its burden of production,4 we conclude defendant established selective
enforcement in violation of Article I, Paragraphs 1 and 5.
V.
Our conclusion there was a Segars violation does not end our inquiry.
We must next determine whether the exclusionary rule should be applied in
4
We recognize that because the motion court ruled that defendant had not
established a prima facie case, the State's burden of production was not
triggered at the trial court level. However, in view of the State's concession on
appeal it has no explanation for the dispatcher's inclusion of a racial identifier
in the BOLO alert, a remand to allow the State an opportunity to offer a race -
neutral explanation would be pointless. The time for the State to determine
why the dispatcher included a racial description has long passed.
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these circumstances. In Segars, the Court held that "[o]nce it has been
established that selective enforcement has occurred in violation of Article I,
Paragraphs 1 and 5 of the New Jersey Constitution, the fruits of that search
will be suppressed." 172 N.J. at 493 (citing State v. Maryland, 167 N.J. 471,
485 (2001)). The Court added, "[t]he rationales that support the suppression of
evidence under Article I, Paragraph 7, namely, deterrence of impermissible
investigatory behavior and maintenance of the integrity of the judicial system,
apply equally, if not more so, to cases of racial targeting." Ibid. (emphasis
added).
However, the Segars Court had no occasion to consider whether any of
the recognized exceptions to the exclusionary rule developed in our search and
seizure jurisprudence apply when the fruit-of-the-poisonous tree doctrine is
triggered by a violation of Article 1, Paragraphs 1 and 5.5 That task now falls
5
By our reckoning, putting aside the "good faith exception" rejected by our
Supreme Court in State v. Novembrino, 105 N.J. 95, 158 (1987), there are four
recognized exceptions to the exclusionary rule: inevitable discovery, see Nix
v. Williams, 467 U.S. 431 (1984); independent source, see Segura v. United
States, 468 U.S. 796 (1984); attenuation of taint, see Brown v. Illinois, 422
U.S. 590 (1975); and impeachment, see United States v. Havens, 446 U.S. 620
(1980). We focus our attention on the two exceptions raised by the parties—
independent source and inevitable discovery. We note those exceptions entail
the balancing of different interests and concerns than the attenuation and
impeachment exceptions. Both the independent source and inevitable
discovery exceptions focus on the need to deter governmental misconduct.
The attenuation doctrine, in contrast, also addresses the need to deter private
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upon us since the parties dispute whether the independent source and
inevitable discovery doctrines apply in this case.
We begin by acknowledging a foundational principle: the New Jersey
Constitution may afford defendants greater protections than the United States
Constitution. Our Supreme Court has relied on independent state
constitutional grounds to diverge from United States Supreme Court search-
and-seizure precedents on numerous occasions. In State v. Caronna, Justice
(then Judge) Fasciale stressed that New Jersey has a "sound tradition and
powerful precedent of providing greater protection against unreasonable
searches and seizures than those guaranteed by the Fourth Amendment." 469
N.J. Super. 462, 483 (App. Div. 2021). We therefore have an "obligation to
apply the heightened constitutional guarantees afforded under the Constitution
of New Jersey." Id. at 481.
individuals from engaging in dangerous conduct, such as fighting or fleeing
from police after a constitutional violation. See, e.g., State v. Herrerra, 211
N.J. 308 (2012) (holding, in a post-conviction relief case concerning racial
profiling discovery, the exclusionary rule does not apply to evidence of
defendant's attempted murder of a State Trooper regardless of the legality of
the initial motor vehicle stop, suggesting the attenuation doctrine applies to
racial profiling cases). Relatedly, the impeachment doctrine balances the need
to deter police misconduct against the cost of allowing a defendant to commit
perjury at trial. See Havens, 446 U.S. at 626 (rejecting the "notion that the
defendant's constitutional shield against having illegally seized evidence used
against him [or her] could be perverted into a license to use perjury by way of
a defense" (internal quotation marks and citations omitted)).
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Those heightened constitutional guarantees apply not only to substantive
rights but also to the scope and boundaries of the exclusionary rule. For
example, our Supreme Court relied on independent state constitutional grounds
to reject a "good faith exception" to the exclusionary rule recognized by the
United States Supreme Court. Novembrino, 105 N.J. at 145–59. Furthermore,
although the New Jersey Supreme Court has accepted the inevitable discovery,
independent source, and attenuation exceptions—with respect to Article I,
Paragraph 7 violations—it consistently diverged from the corresponding
United States Supreme Court precedents by imposing a burden on the State to
prove the elements for those exceptions by clear and convincing evidence,
rather than the preponderance of the evidence standard used under federal
constitutional law. See e.g., State v. Sugar (Sugar II), 100 N.J. 214, 239–40
(1985). Our Supreme Court, moreover, added a flagrancy element to the
independent source exception where none exists under federal law. State v.
Holland, 176 N.J. 344, 361 (2003); see discussion infra Section VIII.
Under the New Jersey Constitution, "[w]e apply the exclusionary rule
when the benefits of deterrence outweigh its substantial costs." Caronna, 469
N.J. Super. at 490 (citing State v. Gioe, 401 N.J. Super. 331, 339 (App. Div.
2008)). "The core purpose of the exclusionary rule is 'deterrence of future
unlawful police conduct.'" Id. at 489 (quoting State v. Shannon, 222 N.J. 576,
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597 (2015)). But under the State Constitution, the exclusionary rule serves as
more than a deterrent. It "also provides an 'indispensable mechanism for
vindicating the constitutional right to be free from unreasonable searches.'" Id.
at 490 (quoting State v. Carter, 247 N.J. 488, 530 (2021)). Additionally, "[t]he
exclusionary rule 'uphold[s] judicial integrity' by informing the public that 'our
courts will not provide a forum for evidence procured by unconstitutional
means.'" Ibid. (second alteration in original) (quoting State v. Williams, 192
N.J. 1, 14 (2007)); see also State v. Worthy, 141 N.J. 368, 385 (1995)
("Application of the exclusionary rule encourages respect for protected rights
and care in following prescribed procedures among law enforcement officials
and departments."). We deem the goal of informing the public of the
judiciary's stalwart commitment to deterring discriminatory policing to be
vitally important.
VI.
There appear to be no published opinions in New Jersey or any other
jurisdiction addressing whether the exceptions to the exclusionary rule apply to
discriminatory policing in violation of the Equal Protection Clause. However,
there are instructive precedents that balance the costs and benefits of these
exceptions as they apply in the face of violations of law other than the Fourth
Amendment. Notably, our Supreme Court has considered—and rejected—the
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State's contention that the inevitable discovery and independent source
doctrines apply to violations of the New Jersey Wiretap and Electronic
Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37 (Wiretap Act