STATE OF NEW JERSEY VS. MICHAEL KEE (17-11-3227, CAMDEN COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-3793-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL KEE, a/k/a
MIKEY,

     Defendant-Appellant.
_______________________

                    Submitted January 13, 2021 – Decided April 26, 2021

                    Before Judges Alvarez and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 17-11-3227.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Gilbert G. Miller, Designated Counsel, on
                    the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Steven A. Yomtov, Deputy Attorney
                    General, of counsel and on the brief).

PER CURIAM
      Defendant Michael Kee appeals from his judgment of conviction,

challenging the denial of his motions to suppress. We affirm.

      On March 1, 2017, at about 8:00 p.m., defendant, Tymera Green, Troy

Brown, and Brown's cousin left a home located at Fifth and Walnut Streets in

Camden, New Jersey. The group was celebrating defendant's birthday. Before

getting in the car, defendant told Green that he would be right back, then walked

with Brown around the corner. Green and Brown's cousin got into defendant's

silver Nissan Altima and waited. About five minutes later, Green heard a

gunshot moments before defendant and Brown came back to the car with their

hoods pulled over their heads.

      Defendant got into the driver's seat, Brown got into the front passenger's

seat, and Green and Brown's cousin remained in the back. When they returned,

Green said the pair was frantic and defendant drove away at a high rate of speed.

After making a few turns, defendant turned to Green, gave her a handgun, and

instructed her to hold it. Green secured the gun under her shirt. The vehicle

was headed south on Fourth Street when it passed officers James DiMarco, Kyle

Cook, and Justin Widman of the Camden County Metro Police Department.

      DiMarco, Cook, and Widman were standing near the intersection of

Fourth and Mechanic Streets. Each officer testified they observed the silver


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                                       2
Nissan traveling south on Fourth Street at a high rate of speed. The speed limit

in the area was twenty-five miles per hour. As the vehicle passed, the officers

shined their flashlights on the pavement in front of it to signal the driver to slow

down. The car continued at the same rate of speed. DiMarco advised Cook and

Widman, who were conducting bicycle patrols, that he was going to stop the

Nissan. While walking toward his patrol car, DiMarco noticed the Nissan's

brake lights activate at the intersection of Fourth Street and Atlantic Av enue,

before turning left onto Atlantic. Cook and Widman testified the Nissan failed

to heed the stop sign at the intersection.

      DiMarco, whose car was facing away from Fourth Street, proceeded down

Mechanic Street, turned right onto Broadway, and right again onto Atlantic

Avenue. Cook and Widman pursued the Nissan on their bicycles. They traveled

south down Fourth Street then made a left onto Atlantic. As they turned onto

Atlantic, Cook and Widman saw the Nissan stop and park on the side of the

road. Cook testified that defendant attempted to exit the vehicle after he parked.

DiMarco also saw the silver Nissan stop and park but was dispatched to a report

of a nearby shooting before reaching the car. Cook and Widman approached on

their bicycles and activated their body cameras as they initiated the stop.




                                                                              A-3793-18
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      At the suppression hearing, the State produced video footage of the traffic

stop captured by Cook and Widman. The first thing that can be heard on the

video is the dispatcher requesting available officers to respond to the area of

Fourth and Mount Vernon Streets. Cook is shown standing on the driver's side

as he directs defendant to exit the vehicle, walk to the back, and keep his hands

on the top of the car. Cook asks "why are you driving so fast?" Defendant

responds that his girl and his little nephew are in the back seat.

      While Widman is standing next to the front passenger window with his

flashlight trained on defendant's face, the following exchange occurred:

            WIDMAN: Where you guys comin' [sic] from man?

            DEFENDANT: What? Huh?

            WIDMAN: Where yous [sic] coming from? Where?

            COOK: Keep your hands on the car.

            DEFENDANT: We just come from Walnut Street.

            [DVD 1, Cook.]

      Simultaneously, the following message can be heard over the radio:

            DISPATCH: Fourth and Mount Vernon. We got a
            report of a white Maxima, uh, crashed into another
            vehicle. The uh, suspect. Okay, correction. The victim
            was in the car. The white Maxima. Appears to be uh,
            one shot to the uh, the chest.


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             WIDMAN: Fifth and Walnut?

             DEFENDANT: Right there on the –

             COOK: Yo, this, it's where they're coming from.

             WIDMAN: Huh?

             COOK: That's where they're coming from.

             DEFENDANT: It's not us though –

             COOK: Keep your hands. Where do you live?

             DEFENDANT: I live in Woodland.

             COOK: In Woodland?

             DEFENDANT:           Yeah.        I got my name and
             (indiscernible) in the car.

             COOK: What's your name?

             DEFENDANT: My name Michael Kee.

             [DVD 1, Cook; DVD 2, Widman.]

        Cook directed defendant to sit on the curb then turned to Widman and

said:

             COOK: This is where they're coming from.

             WIDMAN: Huh?

             COOK: That's where they're coming from, the shots
             fired.


                                                                      A-3793-18
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            DEFENDANT: We just left from right there because
            they were shooting. We was at my friend's house on
            Walnut Street.

            COOK: What were you doing over there?

            DEFENDANT: My brother live right there. We were
            talking to my brother. And when we heard shots we
            just pulled off, like, that shit scared us because they
            almost shot us.

            [DVD 1, Cook; DVD 2, Widman.]

      Cook also asked defendant for his address, with whom he resided, and his

date of birth.   Defendant answered.        During that exchange, the following

messages can be heard over the radio:

            UNIDENTIFIED SPEAKER:                (Indiscernible) one
            person shot in the chest.

            UNIDENTIFIED SPEAKER:                 Hispanic male,
            approximately (indiscernible) got at least one bullet
            wound to chest. Uh, critical slash grave condition.

            DISPATCH: Ten-four.
            UNIDENTIFIED SPEAKER: (Indiscernible) younger
            black male in a green hooded sweatshirt.

            UNIDENTIFIED SPEAKER: You guys coming in? I
            need that traffic blocked off at Fifth and Mount Vernon
            ASAP.

            [DVD 1, Cook; DVD 2, Widman.]




                                                                          A-3793-18
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     Brown, a young black male wearing a Philadelphia Eagles hoodie,

matched the description that came over the radio. Widman responded:

           WIDMAN: Bravo-six-eight. We have a vehicle
           stopped. It's gonna [sic] be at Fourth and Atlantic.
           They were fleeing the area. They were coming from
           Fifth and Walnut they said. I have one individual in the
           passenger's seat with a green Eagles hoodie.

           [DVD 2, Widman.]

     Defendant responded to the statement Widman made over the radio:

           DEFENDANT: That's where we live at.

           COOK: Stay there. Is there anything in the car?

           DEFENDANT: Sir ain't [sic] nothing in the car, but my
           information and everything in the kids (indiscernible).

           COOK: How many people are in the car?

           DEFENDANT: There's four people in the car. Me, the
           passenger, and two people in the back.

           WIDMAN: Where you guys going right now? Who
           lives on this block?
           BROWN: Nah, we just dropping my cousin off. Takin
           [sic] my little cousin.

           WIDMAN: Where?

           BROWN: Out in Centerville.

           WIDMAN: Centerville? This ain't [sic] Centerville.



                                                                      A-3793-18
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              BROWN: We comin [sic] from my mom's house.
              That's what I'm tellin [sic] you. That's what I said, we
              coming from my mom's house. That's what I told you.

              [DVD 1, Cook; DVD 2, Widman.]

        At this point, backup arrived. The remaining occupants were removed

from the vehicle. Widman instructed Green to sit on the curb next to defendant.

She testified that while seated, defendant warned her not to say anything to the

police. Defendant told Green that she saw how easy it was for him to shoot

someone and threatened to kill her if she told on him.

        Each passenger was placed into a different police vehicle. Defendant had

not been Mirandized.1 Green was placed into the back of a patrol car, uncuffed,

while her purse was placed in the front. The front of the vehicle was not

accessible from the back. Green testified that after about five minutes, she

removed the handgun from her shirt 2 and tucked it under the cushion of the

backseat. She did not inform anyone about the gun. When asked why she hid

the gun, Green responded "[b]ecause I didn’t want anything to do with it. I

didn’t want to hold it."




1
    Miranda v. Ariz., 

384 U.S. 436

(1966).
2
    The record is unclear as to how Green secreted the gun under her shirt.
                                                                              A-3793-18
                                         8
       Green sat in the back of the patrol car for approximately twenty minutes

before she was driven to a police station. She was not taken inside. Green

remained in the patrol car for some time before she was driven to the prosecutor's

office. At some point after leaving Atlantic Avenue but before reaching the

prosecutor's office, Green's phone was taken from her and placed in the front of

the patrol car where she could not access it. When she arrived at the prosecutor's

office, Green continued to wait in the back of the vehicle for a period of time

before she was eventually escorted inside and questioned for approximately two

hours. While being questioned, Green allowed detectives to download several

photographs from her phone. Green left the prosecutor's office at about 1:30

a.m.

       The following morning, another officer was assigned the patrol car Green

was placed in the night before. While performing a pre-shift inspection of the

vehicle, he discovered the handgun underneath the back seat.

       Defendant filed motions to suppress the roadside statements he made to

the police on the night of his arrest, as well as the handgun. He argued his

statements were taken while he was in custody and had not been given his

Miranda warnings, therefore they must be suppressed. He also argued that the




                                                                            A-3793-18
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police had no basis to conduct the traffic stop, and that the discovery of the

handgun was the product Green's illegal detention.

        Evidentiary hearings were held on January 2, 2019, and January 10, 2019.

DiMarco, Cook, Widman, and Green testified on behalf of the State. Defendant

did not call any witnesses. On February 7, 2019, the motion judge issued a

written decision denying both motions.

        The judge deemed the officers' testimony credible.          He admitted

defendant's roadside statements, finding they were not taken in violation of

Miranda, but rather answers to appropriate questions associated with a routine

traffic stop. Based on the time of day and defendant's attempted departure from

the vehicle, the judge also found the instructions that were given and the limited

questions that were asked were intended to secure the scene and collect

biographical information.     They were not intended to elicit incriminating

statements.

        The judge found the alleged traffic violations justified the traffic stop

based on the officers' testimony. He also found defendant lacked standing to

challenge admissibility of the gun because he relinquished his interest in the

firearm by abandoning it, and that the exclusionary rule was inapplicable in this

case.


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                                       10
      On February 7, 2019, pursuant to a plea agreement, defendant plead guilty

to an amended count one, aggravated manslaughter, N.J.S.A. 2C:11-4(a). In

return, the State recommended a term of thirteen years' imprisonment, subject

to eighty-five percent parole ineligibility under the No Early Release Act,

N.J.S.A. 2C:43-7.2, followed by a five-year period of parole supervision. All

other counts were dismissed. Under the plea agreement, defendant preserved

his right to appeal the denial of the motion to suppress his roadside statements. 3

This appeal ensued.

      Defendant raises the following points for our consideration:

            POINT I

            DEFENDANT'S STATEMENTS AT THE SCENE OF
            THE ROADSIDE STOP WERE THE PRODUCT OF
            UNWARNED CUSTODIAL INTERROGATION
            AND SHOULD HAVE BEEN SUPPRESSED.

            POINT II

            THE HANDGUN DISCOVERED BY THE POLICE
            UNDER THE REAR SEAT CUSHION OF THE
            PATROL CAR IN WHICH TYMERA GREEN HAD
            EARLIER BEEN LOCKED WAS SEIZED IN
            CONTRAVENTION OF GREEN'S RIGHT TO BE
            FREE FROM UNREASONABLE SEARCHES AND

3
   Defendant's right to appeal the denial of his motion to suppress physical
evidence was automatically preserved. R. 3:5-7(d); see also State v. Greeley,

178 N.J. 38

, 50-51 (2004) ("[O]nly motions for suppression on the grounds of
unlawful search and seizure automatically survive the entry of a guilty plea.").
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                                       11
             SEIZURES UNDER THE FEDERAL AND STATE
             CONSTITUTIONS. U.S. CONST. AMEND. IV; N.J.
             CONST. ART. I PAR. 7.

                   A.    Standing

                   B.    Green's Seizure and the Resultant Seizure of
                         the Gun

                   C.    Exclusionary Rule

                                         I
      Our review of the trial court's decision on a motion to suppress is limited.

State v. Robinson, 

200 N.J. 1

, 15 (2009). "An appellate court reviewing a

motion to suppress evidence in a criminal case must uphold the factual findings

underlying the trial court's decision, provided that those findings are 'supported

by sufficient credible evidence in the record.'" State v. Boone, 

232 N.J. 417

,

425-26 (2017) (quoting State v. Scriven, 

226 N.J. 20

, 40 (2016)). We do so

"because those findings 'are substantially influenced by [an] opportunity to hear

and see the witnesses and to have the 'feel' of the case, which a reviewing court

cannot enjoy.'" State v. Gamble, 

218 N.J. 412

, 424-25 (2014) (alteration in

original) (quoting State v. Johnson, 

42 N.J. 146

, 161 (1964)). "The governing

principle, then, is that '[a] trial court's findings should be disturbed only if they

are so clearly mistaken "that the interests of justice demand intervention and

correction."'" 

Robinson, 200 N.J. at 15

(alteration in original) (quoting State v.


                                                                               A-3793-18
                                        12
Elders, 

192 N.J. 224

, 244 (2007)).          "We owe no deference, however, to

conclusions of law made by trial courts in deciding suppression motions, which

we instead review de novo." State v. Brown, 

456 N.J. Super. 352

, 358-59 (App.

Div. 2018) (citing State v. Watts, 

223 N.J. 503

, 516 (2015)).

                                        II

      Defendant argues the statements he made to the police immediately after

he was pulled over must be suppressed because the officers failed to use the least

intrusive means necessary to carry out the traffic stop.        Until the officers

received the transmission about the gunshot victim, they had no basis to use such

aggressive tactics. What should have been an innocuous traffic stop, defendant

contends, was transformed into an unlawful arrest when he was ordered to get

out of the vehicle, go to the back, and keep his hands on top of the car. By the

time reasonable suspicion arose justifying limited questioning regarding the

nearby shooting, defendant suggests he was already under arrest. Consequently,

because he had not received his Miranda warnings, defendant argues the

statements must be suppressed.

      "General on-the-scene questioning as to facts surrounding a crime or other

general questioning of citizens in the fact-finding process" does not require

Miranda warnings. Miranda v. Ariz., 

384 U.S. 436

, 477 (1966). The United


                                                                            A-3793-18
                                       13
States Supreme Court, as well as our courts, have distinguished between

detaining a citizen in the course of an investigatory stop, pursuant to Terry v.

Ohio, 

392 U.S. 1

, 21-22 (1968), and placing a citizen in custody so as to trigger

Miranda requirements. See Berkemer v. McCarty, 

468 U.S. 420

, 435-442

(1984); State v. Smith, 

374 N.J. Super. 425

, 432-35 (App. Div. 2005).

      An investigatory stop is characterized by a detention in which the person

approached by a police officer would not reasonably feel free to leave, even

though the encounter falls short of a formal arrest. State v. Stovall, 

170 N.J.

346

, 355-56 (2002); see also 

Terry, 392 U.S. at 19

. A police officer may

lawfully conduct an investigatory traffic stop, without a warrant, based on a

reasonable and articulable suspicion that the driver or any of its occupants have

committed a traffic violation. State v. Dunbar, 

229 N.J. 521

, 532-33 (2017).

      In this case, we see no error in the motion judge's denial of defendant's

motion to suppress his roadside statements. Defendant argues he was placed

into custody when the traffic stop was initiated because he was pulled out of the

car and directed to stand near the back. Because he had not been given his

Miranda warnings, defendant argues the entire interaction must be suppressed.

However, "once a motor vehicle has been lawfully [detained] . . . the police

officers may order the driver to get out of the vehicle without violating the


                                                                           A-3793-18
                                      14
Fourth Amendment's proscription against unreasonable searches and seizures."

State v. Smith, 

134 N.J. 599

, 611-12 (1994) (quoting Pa. v. Mimms, 

434 U.S.

106

, 111 n.6 (1977)).

      At the suppression hearing, officers DiMarco, Cook, and Widman each

testified they observed defendant's vehicle traveling at a high rate of speed down

a street with a twenty-five mile per hour speed limit. Cook and Widman also

testified that defendant failed to observe the stop sign at the intersection of

Fourth and Atlantic and exited the car after parking. Under these circumstances,

the officers' reasonable suspicion that defendant committed at least two traffic

violations justified the investigatory stop and brief detention.

      Once the traffic stop was initiated, the police were justified in asking

"general on-the-scene question[s]" regarding the reason for the stop and were

not required to provide Miranda warnings.           

Miranda, 384 U.S. at 477

.

"Typically, this means that the officer may ask the detainee a moderate number

of questions to determine his identity and to try to obtain information confirming

or dispelling the officer's suspicions." 

Berkemer, 468 U.S. at 439

.

      That is precisely what happened in this case. The officers conducted an

investigatory detention during which they inquired who the driver was, where

he was coming from, and why he was driving so fast. The questions were related


                                                                            A-3793-18
                                       15
to the traffic violation that gave rise to the stop. As more information became

available over the radio, it became apparent that defendant may have been

involved in the nearby shooting. That also gave rise to a reasonable suspicion

of illegal activity that justified a line of questioning more intrusive than what

may be permitted during an ordinary traffic stop. A review of the record,

however, reveals that the officers did not engage in such an interrogation.

Rather, the officers removed the remaining occupants from the car and placed

them in separate police vehicles.      The interactions the officers had with

defendant, and each other, were clearly intended to secure the scene and ensure

officer safety.

      Even if the officers had posed a limited number of questions intended to

"confirm[] or dispel[]" their suspicion, 

Berkemer, 468 U.S. at 439

, that

defendant was involved in the shooting, caselaw suggests it would have been

permissible.      A court must consider the totality of the circumstances in

determining whether an interrogation is custodial. State v. P.Z., 

152 N.J. 86

,

102 (1997). The content of the biographical questions, the amount of time spent

in investigatory detention, and the evolving nature of the events of the traffic

stop lead us to conclude defendant was not subjected to a custodial interrogation

requiring Miranda warnings.       Instead, the interaction represented a valid


                                                                           A-3793-18
                                      16
investigatory detention justified by the circumstances. Accordingly, we affirm

the motion judge's decision denying defendant's motion to suppress his roadside

statements.

                                      III

      Next, defendant argues the handgun was seized in contravention of

Green's right to be free from unreasonable searches and seizures. He contends

Green's prolonged detention, which began around 8:30 p.m. when she was

placed in the back of a patrol car and ended around 1:30 a.m. when she was

released from the prosecutor's office, constitutes a de facto arrest lacking

probable cause. Because Green hid the gun while she was unlawfully detained,

defendant argues New Jersey's constitutional protections prohibit it from being

used against him. The motion judge admitted the handgun, finding that (1)

defendant had abandoned the firearm by relinquishing it to Green; (2) Green was

lawfully detained when she hid it; and (3) the purposes of the exclusionary rule

would not be served by suppression.

                                      A.

      In finding defendant had standing to assert violations of Green's

constitutional rights, the motion judge relied primarily on State v. Bruns, 

172

N.J. 40

(2002). In that case, the defendant sought to suppress evidence seized


                                                                          A-3793-18
                                      17
from a vehicle that was subjected to a warrantless stop and search for reasons

unrelated to the robbery the defendant allegedly committed. 

Bruns, 172 N.J. at

43

. The defendant had no connection with the vehicle, but the evidence seized

from it implicated him in the robbery.

Id. at 44-45.

The Court explained:

             In order to contest at trial the admission of evidence
             obtained by a search or seizure, a defendant must first
             demonstrate that he has standing. Generally speaking,
             that requires a court to inquire whether defendant has
             interests that are substantial enough to qualify him as a
             person aggrieved by the allegedly unlawful search and
             seizure. Jones v. United States, 

362 U.S. 257

, 261
             (1960).

             [

Id. at 46

.]

      The Court noted that Article I, Paragraph 7 of the New Jersey Constitution

provides broader standing to challenge warrantless searches and seizures than

under the Fourth Amendment of the United States Constitution.

Id. at 50.

In

New Jersey, standing depends upon "whether that defendant has a proprietary,

possessory or participatory interest in the place searched or items seized."

Id.

at 46

(citing State v. Alston, 

88 N.J. 211

, 228 (1981)). "[I]n most cases in which

the police seize evidence implicating a defendant in a crime that defendant will

be able to establish an interest in the property seized or place searched . . . ."

Id.

at 59.

A participatory interest



                                                                               A-3793-18
                                        18
            connotes some involvement in the underlying criminal
            conduct in which the seized evidence is used by the
            participants to carry out the unlawful activity . . . . It
            thus provides standing to a person who, challenging the
            seizure and prosecutorial use of incriminating
            evidence, had some culpable role, whether as a
            principal, conspirator, or accomplice, in a criminal
            activity that itself generated the evidence.

            [State v. Mollica, 

114 N.J. 329

, 339-40 (1989).]

      However a defendant's basis for challenging the search will be diminished

"[i]f substantial time passes between the crime and the seizure of the evidence,

and a proprietary connection between defendant and the evidence no longer

exists," or if "the search was not directed at the defendant or at someone who is

connected to the crime for which he has been charged[.]" 

Bruns, 172 N.J. at 59

.

Because the defendant had abandoned the subject evidence a week earlier, was

not present when it was found, and had no connection to the events leading to

the challenged search, the Court found he did not have standing.

Ibid.

Applying those principles,

we agree with the motion judge that defendant

has a participatory interest in the handgun. Defendant was a participant in the

underlying criminal activity in which the seized evidence was used. 

Mollica,

114 N.J. at 339-40

. In contrast to Bruns, in this case, the evidence was found

the morning after it left defendant's possession, and he was directly connected



                                                                           A-3793-18
                                       19
to the events that led to the gun's discovery. Therefore, we find defendant has

standing to challenge its unlawful seizure.

                                        B.

      Defendant contends the motion judge erred in concluding Green's

detention following the traffic stop was lawful. He suggests the police lacked

probable cause to carry out the de facto arrest. Because the shooting occurred

several blocks from Atlantic Avenue and Green was not identified as a suspect,

defendant argues there was no justified cause to detain her. He reasons that if

her seizure was unlawful, then the handgun is the result of unconstitutional

police conduct, which, in turn, makes her abandonment the gun irrelevant.

      Once a vehicle is stopped, "a police officer may inquire 'into matte rs

unrelated to the justification for the traffic stop.'" 

Dunbar, 229 N.J. at 533

(quoting Ariz. v. Johnson, 

555 U.S. 323

, 333 (2009)). An officer may inspect

the driver's license, determine whether there are any outstanding warrants

against him or her, and check the vehicle's registration and proof of insurance.

Ibid. (quoting Rodriguez v.

United States, 

575 U.S. 348

, 355 (2015)). If, "the

circumstances 'give rise to suspicions unrelated to the traffic offense, an officer

may broaden [the] inquiry and satisfy those suspicions.'"

Ibid. (alterations in

original)

(quoting State v. Dickey, 

152 N.J. 468

, 479-80 (1998)).            "[A]n


                                                                             A-3793-18
                                       20
investigative stop becomes a de facto arrest when '"the officers' conduct is more

intrusive than necessary for an investigative stop."'" 

Dickey, 152 N.J. at 478

(quoting United States v. Jones, 

759 F.2d 633

, 636 (8th Cir. 1985)).

      A continued investigatory stop is lawful if it is "reasonable at its

inception" and "the scope of the continued detention [is] reasonably related to

the justification for the initial interference." State v. Coles, 

218 N.J. 322

, 344

(2014). There is no bright line test to determine the point at which a stop

becomes a de facto arrest, but the Court has identified several guiding factors:

unnecessary delay, fear and humiliation resulting from law enforcement's

conduct, transportation of the detained person to another location, isolation of

the person, or confinement of the person. 

Dickey, 152 N.J. at 478

-79 (quoting

United States v. Bloomfield, 

40 F.3d 910

, 917 (8th Cir. 1994)). A de facto arrest

is lawful only if supported by probable cause.

Id. at 478.

      Property that is discarded while a person is unlawfully seized by the police

is not considered abandoned. State v. Tucker, 

136 N.J. 158

, 172 (1994). Thus,

when evidence is discovered as the result of an illegal seizure, that property is

inadmissible.

Ibid.

Here, moments after

the traffic stop was initiated, Cook and Widman

received information about a shooting just a few blocks away from their


                                                                            A-3793-18
                                       21
location.   Defendant advised the officers that there were two back seat

passengers, and that he and the occupants of the Nissan had just departed the

area where the shooting occurred. The officers then learned that two young

black males were involved in the shooting, one wearing a green hooded

sweatshirt. Defendant and Brown matched that description.

      All the occupants were removed from the vehicle, including Green. She

was seated on a curb and then escorted to a police vehicle. She was not

handcuffed, but she was separated from her purse before being confined in the

back of the patrol car.      She remained confined, and isolated from her

companions, in the back seat of the police car for about thirty minutes before

being transported.

      The steps taken, until Green was transported to the police station, were

not greater than necessary to address justified concerns for police safety, and the

thirty minutes Green sat in the back of a patrol vehicle were directly related to

securing the scene. See State v. Mann, 

203 N.J. 328

, 338-39 (2010) (explaining

reasonableness is examined objectively in light of the facts known to police at

the time). The officers had reliable evidence that someone in the vehicle may

have been armed. The separation and detention of the occupants were out of

concern for the safety of all those present in light of the probability weapons


                                                                             A-3793-18
                                       22
were in the vehicle. See 

Terry, 392 U.S. at 25-26

(explaining officer safety is

the foundation for a limited pat down for weapons when the officer had an

articulable suspicion that a suspect may be armed).

      Green hid the gun about five minutes after she was placed inside of the

patrol car. Accordingly, even if Green's detention turned into a de facto arrest

as she waited in the back of the police car for several hours, she was lawfully

detained when she hid the handgun. Therefore, its discovery was not the product

of illegal seizure requiring suppression of the gun. 

Tucker, 136 N.J. at 172

.

Rather, the weapon was found because Green abandoned the firearm during a

lawful investigatory detention.

      In hiding the gun, she met all of the elements required to demonstrate

abandonment. Green was in actual possession of the firearm, she knowingly and

voluntarily relinquished it, and when it was discovered the following morning,

there were no other apparent or known owners of the property. 

Johnson, 193

N.J. at 549

. The initial traffic stop was lawful, and the subsequent investigatory

detention was no greater than necessary to secure the firearm the officers

believed to be in the vehicle. Green was therefore lawfully detained while at

the scene of the traffic stop. In turn, since Green abandoned the gun while

lawfully detained, we also find that law enforcement came into possession of


                                                                            A-3793-18
                                       23
the firearm through a constitutionally sound sequence of events. Consequently,

the exclusionary rule is inapplicable in this case. The handgun was properly

admitted to evidence and defendant's motions to suppress were correctly denied.

      Affirmed.




                                                                         A-3793-18
                                     24

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