The Practice of New Jersey Criminal Defense Lawyer Allan Marain - &subhead=NJ and US Criminal Court Decisions<br />State of New Jersey v. Marcellus R. Williams

Cite as: 192 N.J. 1 (2007)

Supreme Court of New Jersey.

STATE of New Jersey, Plaintiff-Appellant,

Marcellus R. WILLIAMS, a/k/a Marcullus R. Williams, Defendant-Respondent.

Argued March 6, 2007.

Decided July 12, 2007.

Hillary K. Horton, Deputy Attorney General, argued the cause for

appellant (Stuart Rabner, Attorney General of New Jersey, attorney).

Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for

respondent (Yvonne Smith Segars, Public Defender, attorney; Mr. Pugliese and

Alan I. Smith, Designated Counsel, on the briefs).

Justice ALBIN delivered the opinion of the Court.

In State v. Crawley, 187 N.J. 440, 901 A.2d 924, cert. denied, --- U.S.

----, 127 S.Ct. 740, 166 L.Ed.2d 563 (2006), we determined that a defendant

commits the crime of obstruction if he disobeys a police command and flees

from an investigatory stop-even an unconstitutional one. In this appeal, we

must decide whether defendant who resisted and fled from a presumed

unconstitutional investigatory stop and who was later arrested for obstruction

is entitled to suppression of the handgun seized incident to his lawful

arrest. FN1

FN1. Because we presume the investigatory stop to be unconstitutional,

as we will explain later, for simplicity's sake we will simply refer to

it as an unconstitutional stop throughout the opinion.

We now hold that defendant's resistance and flight, which amounted to

obstruction, broke the link in the chain between the initial unconstitutional

stop and the later seizure of the weapon. Under such circumstances,

suppression of the evidence is not warranted by the exclusionary rule.

Shortly after 2 a.m. on March 26, 2002, while on patrol in a marked car,

Elizabeth police officer Paul McRae and his partner received a dispatch from

headquarters that a black man wearing a black jacket was possibly selling

drugs at 1025 Flora Street in the City of Elizabeth.FN2 At the time, the

two officers did not know the source of that information. They responded to

the address and observed two black men wearing black jackets in front of the

residence. One of the men walked away as the patrol car approached while

defendant Marcellus Williams, "apparently shocked and unnerved" by the

unexpected presence of the two uniformed officers, remained. The officers

did not pursue the individual who left the scene because he did nothing to

arouse their suspicions. Indeed, other than the fact that defendant matched

the description given by headquarters, the officers did not observe any sign

that defendant was involved in drug dealing. After exiting their patrol car,

the officers approached defendant for the purpose of interviewing him.

FN2. This statement of facts is based on the testimony of Officer McRae

at a motion to suppress hearing.

The neighborhood surrounding 1025 Flora Street was known to Officer McRae as

an area rampant with weapons and drug-dealing offenses. Officer McRae had

made approximately 100 drug-related arrests in that area, and in one-half of

those cases the suspects were armed with weapons. The two officers also had

received instruction at the police academy that drug dealers commonly carry

weapons. Given those factors and the late hour, when the officers

reached defendant, Officer McRae asked defendant "to place his hands on top of

his head" so that he and his partner could pat him down for their safety.

In response to that direction, defendant pushed Officer McRae and fled. The

pursuit that ensued did not last long. After running approximately 100 feet,

defendant stumbled and fell to the ground. The two officers then arrested

and handcuffed defendant and, while patting him down, found a handgun tucked

in his waistband.

A Union County grand jury returned two indictments, one charging defendant

with third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b),

and fourth-degree obstructing the administration of law or other governmental

function, N.J.S.A. 2C:29-1(b), and another charging him with second-degree

possession of a weapon by a person previously convicted of a crime, N.J.S.A.

2C:39-7(b).

Defendant filed a motion to suppress the handgun as evidence at trial,

claiming that the seizure of the weapon was the product of an unconstitutional

stop and search. After a pre-trial hearing at which only Officer McRae

testified, the trial court denied the motion to suppress. The court

determined that given the totality of the circumstances, the "facts [were]

sufficient to justify the investigatory stop and pat-down of [defendant]"

under the standards set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968). The court also held that the officers seized the handgun

incident to a lawful arrest for obstructing the administration of law pursuant

to N.J.S.A. 2C:29-1.

After a jury trial on the first indictment, defendant was convicted of the

weapons possession charge, but acquitted of obstructing the administration of

law. Following the verdict, defendant pled guilty to the second indictment's

charge of possessing a weapon by a person previously convicted of a crime.

On that charge, the court sentenced defendant to a nine-year term of

imprisonment with a five-year period of parole ineligibility. On the weapons

possession charge, defendant was sentenced to a concurrent four-year term.

Defendant appealed both the denial of his suppression motion and trial-related

issues.

The Appellate Division reversed the trial court's denial of defendant's motion

to suppress, vacated the judgments of conviction, and remanded to the trial

court for further proceedings in light of the suppression of the handgun.

State v. Williams, 381 N.J.Super. 572, 593, 887 A.2d 190 (App.Div.2005).FN3

The panel first reasoned that the dispatch received from headquarters,

standing alone without corroborative evidence that defendant was involved in

drug dealing, did not provide the officers with a reasonable and articulable

suspicion that criminal activity was afoot. Id. at 587-88, 887 A.2d 190. On

that basis, the panel concluded that the officers engaged in an

unconstitutional investigatory stop. See id. at 588, 887 A.2d 190.

FN3. Because the panel reversed the convictions on the suppression

issue, thus requiring a new trial, the panel declined to address

defendant's challenge to the propriety of the jury charge and his

sentence. Williams, supra, 381 N.J.Super. at 578, 887 A.2d 190.

Next, the panel found that defendant had a "constitutional right to refuse to

participate in the State's unlawful exercise of dominion over [his] right to

be free from an unreasonable search and seizure." Id. at 591, 887 A.2d 190.

Following that logic, defendant could not be "lawfully arrested for

violating N.J.S.A. 2C:29-1(a) by fleeing from an unlawful Terry stop." Ibid.

Therefore, the panel determined that the search of defendant and the seizure

of the handgun were incident to an unlawful arrest for obstruction, requiring

the gun's suppression. Id. at 593, 887 A.2d 190.

The panel added that it did not mean to suggest that a "defendant could not be

lawfully arrested for fleeing from an unlawful investigatory stop" if the

flight created a " 'high potential for causing injury to law enforcement

officials.' " Id. at 592-93, 887 A.2d 190 (quoting State v. Casimono, 250

N.J.Super. 173, 185, 593 A.2d 827 (App.Div.1991), certif. denied, 127 N.J.

558, 606 A.2d 370, cert. denied, 504 U.S. 924, 112 S.Ct. 1978, 118 L.Ed.2d 577

(1992)). The panel, however, maintained that "defendant's flight from this

unlawful investigatory stop did not create a danger to the officers and, thus,

did not produce the element necessary to purge the taint of the officers'

unlawful search and seizure." Id. at 592, 887 A.2d 190. The panel squarely

held that "a citizen's non-violent flight from an unreasonable search and

seizure cannot be validly criminalized." Id. at 577, 887 A.2d 190.

We granted the State's motion to stay the Appellate Division's opinion pending

an appeal to this Court and later granted its petition for certification. 188

N.J. 355, 907 A.2d 1014 (2006).

II.

The State contends that the Appellate Division committed two errors in

suppressing evidence of the handgun. First, contrary to the panel's

decision, the State argues that the officers possessed reasonable and

articulable suspicion to fear for their safety in their street encounter with

defendant, constitutionally justifying the pat down. Alternatively, the

State submits that even if the officers' suspicions did not meet the requisite

constitutional standard for an investigatory stop, when defendant struck

Officer McRae and took flight, he committed the offense of obstruction, which

broke the causal chain between the unconstitutional stop and the later

discovery of the concealed weapon. By that reasoning, the handgun was

admissible in evidence because it was seized incident to a lawful arrest.

On the other hand, defendant asks this Court to uphold the Appellate

Division's suppression of the evidence based on the initial unconstitutional

stop that was generated by the uncorroborated tip. Defendant next argues

that, in addition to acting without the necessary suspicion demanded by the

Constitution, the officers did not have an objective good faith basis for

stopping him or patting him down as required by the obstruction statute, but

rather acted arbitrarily, leading to his wrongful arrest for obstruction. He

thus concludes that the seizure of the gun was incident to an unlawful arrest,

requiring suppression. Last, he argues that even if there were a valid basis

for the obstruction charge, his flight was a direct result of the

unconstitutional investigatory stop, and the taint from that stop had not

dissipated by the time of the search that uncovered the handgun. According

to defendant, the need to deter police misconduct, which is the primary policy

reason for the exclusionary rule, supports suppression of the evidence.

III.

Both the Fourth Amendment to the United States Constitution and

Article 1, Paragraph 7 of the New Jersey Constitution prohibit law enforcement

officers from conducting "unreasonable searches and seizures." FN4

Under those constitutional provisions, an investigatory stop is valid "if it

is based on specific and articulable facts which, taken together with rational

inferences from those facts, give rise to a reasonable suspicion of criminal

activity." State v. Pineiro, 181 N.J. 13, 20, 853 A.2d 887 (2004) (citation

and internal quotation marks omitted). During such a stop, if the police

officer believes that the suspect "may be armed and presently dangerous," then

he may conduct a pat down. Terry, supra, 392 U.S. at 30, 88 S.Ct. at 1884, 20

L.Ed.2d at 911.

FN4. The Fourth Amendment and Article 1, Paragraph 7 provide in

identical language: "The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated...."

In this case, the initial question is whether, as a safety precaution, Officer

McRae and his partner had a reasonable and articulable suspicion to frisk

defendant for weapons. The officers had responded to 1025 Flora Street in

Elizabeth-a high-crime area-on a report of a black man wearing a black jacket

possibly selling drugs in that area. On their arrival at the named address,

shortly after 2 a.m., the officers saw defendant and another man, both of whom

fit the description. The other man walked away, and defendant, who remained,

appeared shocked by the arrival of the police. Nevertheless, the officers

observed nothing to substantiate the report of possible drug dealing. When

the officers approached defendant to speak with him, Officer McRae directed

defendant "to place his hands on top of his head" so that they could pat him

down for safety.

The propriety of the investigatory stop in this case is doubtful when

viewed against the jurisprudence developed under both the Fourth Amendment and

Article 1, Paragraph 7. See Florida v. J.L., 529 U.S. 266, 271-72, 120 S.Ct.

1375, 1379, 146 L.Ed.2d 254, 261 (2000) (finding no reasonable suspicion to

justify investigatory stop based on uncorroborated tip from anonymous caller

that young black male standing at bus stop and wearing plaid shirt was

carrying gun); State v. Rodriguez, 172 N.J. 117, 121-25, 131, 796 A.2d 857

(2002) (finding that police did not have reasonable suspicion to conduct

investigatory stop based on anonymous phone tip describing drug couriers

expected to arrive at bus terminal because tip was solely corroborated by "

innocent details of defendant's appearance" at terminal).

However, we need not decide whether the officers acted without reasonable

and articulable suspicion in attempting to conduct the pat down because we

would not suppress the later discovery of the handgun even if the

investigatory stop did not meet acceptable constitutional standards. We

reach that result because defendant was obliged to submit to the investigatory

stop, regardless of its constitutionality. Instead, defendant physically

resisted the pat down by pushing Officer McRae aside and taking flight,

thereby endangering the police, himself, and the public. In obstructing the

officers, defendant committed a criminal offense, which led to his arrest and

to the discovery of the handgun incident to that lawful arrest.FN5

Obstructing the police constituted a break in the chain from the investigatory

stop, which we will presume was unconstitutional. The taint from that

initial stop was significantly attenuated by defendant's criminal flight that

caused the handgun's later seizure, and accordingly the application of

the exclusionary rule is unwarranted in this case.

FN5. We find of no consequence the fact that defendant was ultimately

acquitted by the jury on the obstruction charge. Regardless of the

final outcome, the trial court found that Officer McRae and his partner

had probable cause to arrest defendant for obstruction. There is

sufficient credible evidence in the record to support that finding.

See State v. Johnson, 42 N.J. 146, 161-62, 199 A.2d 809 (1964).

IV.

We have recently held that a person has no 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. Crawley,

187 N.J. 440, 458, 901 A.2d 924, cert. denied, --- U.S. ----, 127 S.Ct. 740,

166 L.Ed.2d 563 (2006). Under New Jersey's obstruction statute, when a

police officer commands a person to stop, or as in this case orders him to

place his hands on his head for a pat-down search, that person has no right to

take flight or otherwise obstruct the officer in the performance of his duty.

Id. at 451, 458-59, 901 A.2d 924. Indeed, a person commits the fourth

degree crime of obstruction if he "prevents or attempts to prevent a public

servant from lawfully performing an official function by means of flight,

intimidation, force, violence, or physical interference or obstacle, or by

means of any independently unlawful act." N.J.S.A. 2C:29-1(a).

In Crawley, supra, we determined that a defendant could be convicted of

violating the obstruction statute even if he fled from an unconstitutional

investigatory stop. 187 N.J. at 460-61, 901 A.2d 924. In that case, two

police officers while on patrol received a dispatch of a man armed with a gun

outside a bar. Id. at 444-45, 901 A.2d 924. The officers immediately

responded, and observed Crawley, the defendant, who matched exactly the

dispatch's description, walking in a direction away from the bar. Id. at 444,

901 A.2d 924. As the patrol car pulled up to Crawley, one of the officers

called out, "Police. Stop. I need to speak with you." Ibid. Crawley then

fled, and a foot chase ensued, leading to his capture at the bottom of a

stairwell. Id. at 444-45, 901 A.2d 924. No weapon was found on him,

although he discarded glassine envelopes of suspected drugs during his flight.

Id. at 445, 901 A.2d 924. Crawley was found guilty of obstructing the

police officers in the lawful performance of their duties. Id. at

445-46, 901 A.2d 924.

Crawley contended that he could not be convicted of obstruction for disobeying

the officer's command on the ground that the investigatory stop was not

supported by reasonable and articulable suspicion. Id. at 449, 901 A.2d 924.

FN6 We rejected that argument, holding that regardless of whether the

officers had the constitutionally mandated level of suspicion to justify the

stop, Crawley's obstruction of the officers in the performance of their duties

violated N.J.S.A. 2C:29-1. Id. at 451-52, 901 A.2d 924.

FN6. The State apparently lost the glassine envelopes of drugs, and

therefore the defendant had no need to move to suppress evidence seized

during his arrest for obstruction. Id. at 445, 447, 199 A.2d 809. We

did not have occasion to address whether the intervening act of

obstruction by the defendant broke the chain or purged the taint of the

arguably unlawful investigatory stop.

It was clear to us that, in enacting N.J.S.A. 2C:29-1, the Legislature "did

not intend that a person involved in a police encounter should have an

incentive to flee or resist, thus endangering himself, the police, and the

innocent public." Id. at 451, 901 A.2d 924. We determined that "when a

police officer is acting in good faith and under color of his authority, a

person must obey the officer's order to stop and may not take flight without

violating N.J.S.A. 2C:29-1." Id. at 451-52, 901 A.2d 924.

In Crawley, which was decided after the appellate panel's decision in this

case, we explicitly disapproved of the panel's statement that " 'a citizen's

non-violent flight from an [unconstitutional] search and seizure cannot be

validly criminalized' under N.J.S.A. 2C:29-1." Id. at 460 n. 7, 901 A.2d 924

(quoting Williams, supra, 381 N.J.Super. at 577, 887 A.2d 190). We rejected

that notion, explaining that "any flight from police detention is fraught with

the potential for violence because flight will incite a pursuit, which in turn

will endanger the suspect, the police, and innocent bystanders." Ibid. Cases

abound in which a suspect's "flight from the police set in motion an ensuing

chase that resulted in death or serious injury either to a police

officer, a suspect, or a bystander." Id. at 455 n. 6, 901 A.2d 924. For

practical and public-policy-based reasons, "constitutional decisionmaking

cannot be left to a suspect in the street," even one who has done no wrong; a

suspect "cannot be the judge of his own cause and take matters into his own

hands and resist or take flight." Id. at 459, 901 A.2d 924. This reasoned

approach encourages persons to avail themselves of judicial remedies, and

signals that if a person peaceably submits to an unconstitutional stop the

result will be suppression of the evidence seized from him. Id. at 459-60,

901 A.2d 924.

Applying those principles to the present case, we first note that the police

officers had probable cause to believe that defendant had violated the

obstruction statute by his physical resistance and flight. Moreover, as a

basic precondition for prosecution under the obstruction statute, the police

officers were acting in good faith and under color of their authority. As we

observed in Crawley, "[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 [obstruction] statute." Id. at 461

n. 8, 901 A.2d 924. Here, Officer McRae and his partner were responding to a

dispatch from headquarters that reported potential narcotics-dealing activity

in a high-crime area, where drug dealers were commonly known to carry weapons.

The officers approached defendant, who matched the description given in the

dispatch. Although the investigatory stop was unconstitutional, we cannot

conclude that the officers "without any basis arbitrarily detain[ed] a person

on the street," which, if true, would have taken this case outside of the

purview of the obstruction statute. Ibid.

Because the officers had probable cause to arrest defendant for obstruction,

ordinarily the handgun seized incident to a lawful arrest would be admissible

in evidence. See State v. Eckel, 185 N.J. 523, 528-37, 888 A.2d 1266 (2006)

(noting search incident to lawful arrest is well-recognized exception to

warrant requirement). However, defendant claims that the taint from the

earlier unconstitutional stop was not extinguished by the lawful obstruction

arrest. We therefore now turn to whether the handgun was properly admitted

into evidence by the trial court or properly suppressed by the Appellate

Division. The answer to that question depends on the purpose and principles

undergirding the exclusionary rule.

The exclusionary rule "is a judicially created remedy designed to

safeguard" the right of the people to be to be free from "unreasonable

searches and seizures." United States v. Calandra, 414 U.S. 338, 348, 94

S.Ct. 613, 620, 38 L.Ed.2d 561, 571 (1974); see also State v. Lee, 190 N.J.

270, 277, 920 A.2d 80 (2007). Under the exclusionary rule, "the State is

barred from introducing into evidence the 'fruits' of an unlawful search or

seizure by the police." State v. Badessa, 185 N.J. 303, 311, 885 A.2d 430

(2005) (citing Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407,

416, 9 L.Ed.2d 441, 454 (1963)). The overarching purpose of the rule is to

deter the police from engaging in constitutional violations by denying the

prosecution any profit from illicitly-obtained evidence. Id. at 310, 885 A.2d

430; State v. Evers, 175 N.J. 355, 376, 815 A.2d 432 (2003). A corollary

purpose is to uphold judicial integrity by serving notice that our courts will

not provide a forum for evidence procured by unconstitutional means. See

Lee, supra, 190 N.J. at 278, 920 A.2d 80; Badessa, supra, 185 N.J. at 311,

885 A.2d 430. Suppressing evidence sends the strongest possible message that

constitutional misconduct will not be tolerated and therefore is intended to

encourage fidelity to the law.

Countering that laudable policy, however, is the recognition that the

exclusionary rule exacts a high price on society by depriving the jury or

judge of reliable evidence that may point the way to the truth. United

States v. Janis, 428 U.S. 433, 448-49, 96 S.Ct. 3021, 3029, 49 L.Ed.2d 1046,

1058 (1976); State v. Barry, 86 N.J. 80, 87, 429 A.2d 581 (1981). Excluding

reliable evidence may vindicate the Fourth Amendment rights of a particular

defendant, and more generally the privacy rights of all persons, but it also

may result in the guilty going free.

Because of those competing concerns, the exclusionary rule is

applied to those circumstances where its remedial objectives can best be

achieved. Calandra, supra, 414 U.S. at 348, 94 S.Ct. at 620, 38 L.Ed.2d at

571. For example, "the exclusionary rule will not apply when the connection

between the unconstitutional police action and the evidence becomes so

attenuated as to dissipate the taint from the unlawful conduct." Badessa,

supra, 185 N.J. at 311, 885 A.2d 430 (citations and internal quotation marks

omitted); see also Lee, supra, 190 N.J. at 278, 920 A.2d 80 (explaining

attenuation doctrine); Wayne R. LaFave, Search and Seizure: A Treatise on

the Fourth Amendment <section> 11.4(a), at 234-35 (3d ed.1996) (same). "In

those circumstances, withholding from the finder of fact relevant evidence far

removed from the constitutional breach is a cost not justified by the

exclusionary rule." Badessa, supra, 185 N.J. at 311, 885 A.2d 430. Under

both federal and state law, "the critical determination is whether the

authorities have obtained the evidence by means that are sufficiently

independent to dissipate the taint of their illegal conduct." State v.

Johnson, 118 N.J. 639, 653, 573 A.2d 909 (1990).

In evaluating whether evidence is sufficiently attenuated from the taint

of a constitutional violation, we look to three factors: "(1) the temporal

proximity between the illegal conduct and the challenged evidence; (2) the

presence of intervening circumstances; and (3) the flagrancy and purpose of

the police misconduct." Ibid.; accord Brown v. Illinois, 422 U.S. 590,

603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416, 427 (1975).

We now apply those criteria to this case. Although the first factor-the

closeness in time between the unconstitutional investigatory stop and the

seizure of the handgun-favors defendant, it is substantially outweighed by the

other two factors. State v. Worlock, 117 N.J. 596, 622-23, 569 A.2d 1314

(1990) (observing that temporal proximity "is the least determinative"

factor). With regard to the third factor, it bears repeating that even

though the officers may have acted mistakenly, they did so in good faith.

Accordingly, their actions could hardly be described as flagrant misconduct.

It is the second factor-the presence of intervening circumstances-that is

determinative here. Johnson, supra, 118 N.J. at 656, 573 A.2d 909 ("The

second factor, intervening events, 'can be the most important factor in

determining whether [evidence] is tainted.' " (quoting Worlock, supra, 117

N.J. at 623, 569 A.2d 1314) (alteration in original)).

Courts of this State have held that eluding the police and resisting arrest in

response to an unconstitutional stop or pat down constitute intervening acts

and that evidence seized incident to those intervening criminal acts will not

be subject to suppression. See State v. Seymour, 289 N.J.Super. 80, 86-87,

672 A.2d 1273 (App.Div.1996); Casimono, supra, 250 N.J.Super. at 182-85, 593

A.2d 827. In Seymour, supra, the court maintained that a defendant's eluding

the police at high speeds, thereby endangering the public, was a sufficient

intervening act to purge the taint from the police's earlier attempt to stop

his car-even if that attempt did not meet the standard of reasonable and

articulable suspicion. 289 N.J.Super. at 84, 86-87, 672 A.2d 1273. In

Casimono, supra, the court concluded that even though the police attempted a

pat down based on less than the constitutionally-requisite suspicion, the

defendants' physical resistance was an intervening act that marked "the point

at which the detrimental consequences of illegal police action become so

attenuated that the deterrent effect of the exclusionary rule no longer

justifies its cost." 250 N.J.Super. at 184-88, 593 A.2d 827 (citation and

internal quotation marks omitted).

Courts from other jurisdictions have applied the attenuation doctrine in

similar circumstances. See, e.g., United States v. Bailey, 691 F.2d

1009, 1017-18 (11th Cir.1982) ("[P]olice may legally arrest a defendant for a

new, distinct crime, even if the new crime, is in response to police

misconduct and causally connected thereto. If the police lawfully have

arrested a suspect, then they may properly conduct [a search incident to a

lawful arrest]." (footnote omitted)); Commonwealth v. King, 389 Mass. 233,

449 N.E.2d 1217, 1225 (1983) ("[If] the driver had not attacked the

investigating troopers, the evidence would be inadmissible as fruit of the

poisonous tree. What distinguishes this case ... is the ... independent and

intervening action of attacking the troopers. These acts broke the chain of

causation and dissipated the taint of the prior illegality.").

The point to all of those cases is that the law should deter and give no

incentive to suspects who would endanger the police and themselves by not

submitting to official authority. As we stated in Crawley, supra, "[a]

person has no constitutional right to use an improper stop as justification to

commit the new and distinct offense of resisting arrest, eluding, escape, or

obstruction, thus precipitating a dangerous chase that could have deadly

consequences." 187 N.J. at 459, 901 A.2d 924. Had defendant merely stood

his ground and resorted to the court for his constitutional remedy, then the

unlawful stop would have led to the suppression of the handgun. See id. at

460, 901 A.2d 924.

Our approach balances both the right of the people to be free from

unreasonable searches and seizures and their right to be free from the dangers

created by suspects who physically resist the police, and provides sufficient

disincentives to deter both police misconduct and criminal misconduct by

suspects. The exclusionary rule will continue as a deterrent to law

enforcement officers who violate the Fourth Amendment and Article 1, Paragraph

7. Based on our ruling, it would be farfetched to believe that police

officers will attempt suspicionless investigatory stops or pat downs-to which

the exclusionary rule applies-in the hope that a suspect will commit an

independent crime that will be the basis for a lawful search.

Defendant's resistance to the pat down and flight from the police in this

case was an intervening act-the crime of obstruction-that completely purged

the taint from the unconstitutional investigatory stop. Therefore, Officer

McRae and his partner seized the handgun incident to a lawful arrest and the

evidence was properly admitted into evidence at trial.

VI.

For those reasons, we reverse the Appellate Division, which ordered

suppression of the handgun, and reinstate defendant's judgments of conviction.

We remand to the panel for consideration of those arguments raised by

defendant on direct appeal that were not addressed in the panel's opinion.

Justice WALLACE, JR., concurring.

I concur in the result. I continue to adhere to my dissent in State v.

Crawley, 187 N.J. 440, 468, 901 A.2d 924 (2006), that when the police lack

sufficient reliable information to conduct a valid investigatory stop, but

could have conducted a field inquiry, a defendant's departure from the police

encounter may not form the basis of a violation of the obstruction statute.

In the present case, however, once defendant pushed the police officer, the

police had probable cause to arrest and search defendant. Accordingly, I

concur.

For reversal/reinstatement/remandment-Chief Justice ZAZZALI and Justices

LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS-6.

Opposed-None.