In State v. Scott, 474 N.J. Super. 388, 400 (App. Div. 2023), a woman reported to the police that as she was walking home, a man in a dark raincoat grabbed her by the back of the neck, pressed an object she believed to be a gun against her temple, and demanded money and her cell phone.  She gave the man her cellphone and observed him fleeing on Summit Avenue.  Id. at 400-401.  The woman “described the perpetrator as a male wearing a dark raincoat.”  Id. at 401.  “When asked whether the man was ‘Black, white, or Hispanic,’ she responded she ‘didn’t see.’”  Ibid.  The dispatcher relayed the victim’s description of the robber, including his last known direction and possible possession of a gun, to the police; however, “the dispatcher improperly added to the victim’s description that the robber was a Black male.”  Ibid (emphasis added).

The officers observed a Black male, later identified as the defendant, wearing a dark raincoat jogging about three blocks from the robbery.  Ibid.  The officers detained the 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.  Id. at 398.  The officers found an imitation handgun and the victim’s cell phone during the pat down and frisk of the defendant.  Id. at 401.  A grand jury subsequently returned an indictment charging the defendant with first-degree robbery, in violation of N.J.S.A. 2C:15-1(a)(2), and fourth-degree possession of an imitation firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(e).  Id. at 402.

In support of his motion to suppress, the defendant argued that “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.”  Id. at 399.  During the hearing, the State acknowledged it did not know why the police dispatcher had included a racial description of the robber in the BOLO alert.  Id. at 399.

The trial judge denied the defendant’s motion to suppress the handgun and cellphone.  Id. at 402.  “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).”  Id. at 399.

On appeal, the Appellate Division addressed three issues of first impression.  Ibid.  First, as a threshold matter, the Appellate Division held 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” in violation of Article I, Paragraphs 1 and 5 of the New Jersey Constitution.  Ibid.  “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.”  Id. at 403.  Thus, “a defendant can establish a prima facie case of discrimination through relevant evidence and inferences that a police dispatcher engaged in impermissible racial targeting.”  Id. at 408.

Second, significantly, the Appellate Division held that that “implicit bias” can be a basis for establishing a prima facie case of police discrimination under the burden-shifting paradigm adopted in State v. Segars, 172 N.J. at 481.[1]  State v. Scott, 474 N.J. Super at 399.  The Appellate Court found that “[t]he problem of implicit bias in the context of policing is both real and intolerable.”  Ibid.   In Scott, “when viewed in a light favorable to defendant’s claim, the evidence 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.”  Id. at 410.  Therefore, when, as in Scott, “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.”  Ibid.

Third, the Appellate Division considered whether the independent source and inevitable discovery exceptions to the exclusionary rule applied to the suppression remedy for a violation of Article I, Paragraphs 1 and 5 of the New Jersey Constitution.”  Id. at 400.  The Appellate Court explained that the independent source exception “allows admission of evidence that has been discovered by means wholly independent of any constitutional violation.”  Id. at 400, 417.  “[I]n a typical example, the independent source exception allows for warrants that are based on both lawfully and unlawfully obtained information to be upheld if the warrant application would have been granted without the unlawfully obtained information.”  Id. at 417-18.

The Appellate Division held that “under Article I, Paragraphs 1 and 5 of the New Jersey Constitution, the independent source exception does not apply to Segars violations to the extent this exception would permit a reviewing court to simply excise the information directly resulting from an equal protection violation.”  Id. at 418.  If the exception applied in Scott “the unsupported racial description of the perpetrator would be redacted,” and the Appellate Court “would determine whether the remaining information provided by the dispatcher established a lawful basis to initiate an investigative detention and conduct a frisk for weapons.”  Ibid.  However, “[t]he problem with that remedy is it fails to recognize that discriminatory policing does not just taint specific bits of information; rather, it infects an entire police-citizen encounter in a way that cannot be cured with surgical redaction.  To the extent the independent source exception relies on such redaction to circumvent the exclusionary rule, that doctrine would undermine, if not eviscerate, the distinctive protections afforded under Article I, Paragraphs 1 and 5.”  Ibid.   “[A]pplication 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.” Id. at 400.

With respect to the inevitable discovery doctrine, the Appellate Division held that “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.”  Ibid.   The Appellate Division in Scott thus concluded that the evidence seized from defendant’s person must be suppressed under Article I, Paragraphs 1 and 5 of the New Jersey Constitution, and reversed the denial of the defendant’s motion to suppress.  Id. at 425.

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[1] In State v. Segars, 172 N.J. at 493, the New Jersey Supreme Court found 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.”  State v. Scott, 474 N.J. Super. at 404.  “In addition to that ultimate burden, a defendant bears the preliminary obligation of establishing a prima facie case of discrimination.”  Ibid. (citing State v. Segars, 172 N.J. at 494).  “A prima facie case is one in which the evidence, including any favorable inference to be drawn therefrom, could sustain a judgment. . . .   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. (citing State v. Segars, 172 N.J. at 494).