State of New Jersey v. Donna M. Alessi

Need help finding a lawyer for representation determining whether the police may pull over a driver for questioning in furtherance of an investigation without reasonable suspicion in New Jersey?



Call 918-582-6422. It's Free.

We adduce the following facts from the trial record, suppression hearing,

and remand hearing.

In 2011, defendant Donna Alessi began dating her married co-worker,

Philip Izzo. Izzo was a construction official for Raritan Township responsible

for supervising the construction staff, including an inspector, Mark Fornaciari.

During that time, Fornaciari filed a whistleblower claim under New Jersey’s

Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14, naming Izzo

as a defendant. In preparing his defense, Izzo took documents from the

Township’s construction office, including Fornaciari’s personnel file, and

stored them in his truck. Izzo showed a synopsis of those materials to

defendant and discussed the lawsuit with her.

In 2013, the relationship between defendant and Izzo ended. Their

relationship soured to the extent that they asserted claims of harassing conduct

against one another. One night in June 2013, Izzo parked his truck in the

parking lot of a bar in Hillsborough Township and entered the bar. Defendant,

who saw Izzo at the bar, went to the parking lot, entered Izzo’s truck, and





4



removed some of her personal items as well as Fornaciari’s personnel file. A

surveillance camera at the bar captured defendant’s actions that evening.

Defendant went to the Hillsborough Post Office to mail the personnel

file to Fornaciari. She included an unsigned cover letter indicating she hoped

the file would be of assistance in his lawsuit. She also warned Fornaciari that

Izzo “has been planning to get rid of you for quite some time now,” and he

“got hold of the contractor he says you were inappropriate with to push that

you are not a good employee.” Initially, defendant attempted to mail this

package without a return address, but a postal worker informed her that a

return address was necessary. Defendant wrote the name and address of a

Technical Assistant at the Township’s construction office, Tina Stockelberg,

on the return label.

Nevertheless, the package wound up “returned” to the construction

office because of an issue with the mailing address. The Township

Administrator, Allan Pietrefesa, determined that Stockelberg had not sent the

package and that Fornaciari’s personnel file may have been illegally removed

from the construction office. Pietrefesa contacted the Raritan Township Police

Department.

Detective Thomas Camporeale began an investigation into the removal

of Fornaciari’s personnel file. Pietrefesa told Camporeale that he had not





5



removed the file. He further informed Camporeale that the file was kept in a

locked file in a locked office, which only Pietrefesa and Izzo could access.

Camporeale contacted an officer at the Hunterdon County Prosecutor’s Office

and explained the circumstances surrounding the investigation. An assistant

prosecutor relayed that charges of both official misconduct and misapplication

of entrusted property might be brought “depending on what [the police]

learned in the case and how this envelope left the building.”

Based on the postage stamp, Camporeale knew the package had been

mailed from the Hillsborough Post Office. At the post office, he reviewed the

surveillance video. The footage showed a woman inscribing the return

address, mailing the package, and getting into her car. He later learned from

other employees at the construction office that Izzo had dated defendant.

Additionally, Camporeale ran a Motor Vehicles Commission search to obtain a

photograph of defendant. He compared it to the post office surveillance video

and concluded that “it was the same person.”

In advance of a planned vacation, Camporeale formally transferred the

investigation to his colleague, Detective Benedict Donaruma. Camporeale

“briefed him on everything to make sure that he was up-to-date.” Donaruma

viewed the surveillance footage and likewise concluded the woman in the

video appeared “very similar” to defendant. Determined to learn why the





6



personnel file went missing and wound up in defendant’s possession,

Donaruma called defendant at least twice and left one or more unreturned

voicemails. Donaruma would later testify that “for the most part . . . when we

leave messages people do get back to us.”

One of Donaruma’s colleagues who lived in defendant’s area drove past

her home on two occasions in failed attempts to make contact with her.

Detectives Camporeale and Donaruma determined the next step in their

investigation was to visit defendant’s home personally. They arrived at her

condominium complex in an unmarked police car and knocked on the door, but

no one answered and defendant’s car was not present. Donaruma left his

business card either “in the door in-between the screen door” or wedged in the

home number on the front door. Again, Donaruma testified that, in his

experience, this practice ordinarily led to a return call.

After several days passed without hearing from defendant, Donaruma

decided to return to her home. Early on the morning of July 30, Donaruma

ventured back to the condominium complex by himself because Camporeale

had left for vacation. This time, he spotted defendant’s car. He parked,

walked up to the front door, and knocked multiple times “for about a minute or

two.” Although no one answered the door, he noticed a woman peer out from

behind the curtain. Donaruma then identified himself by saying “police





7



department, need to speak to you,” and knocked again. After another minute,

he concluded no one would answer the door and returned to his car. As before,

Donaruma testified that, in his experience, if someone was home when he

knocked, that person typically answered the door.

Donaruma drove around the corner of defendant’s complex and waited to

see if the woman would leave. After a couple of minutes, he spotted

defendant’s vehicle on a local road within her development. Though

Donaruma did not observe her commit a traffic violation, he pulled behind her

in his marked patrol car and activated the overhead lights. When defendant

stopped, Donaruma approached her car and said he wanted to discuss his

investigation into the mailing of an envelope containing a missing personnel

file. After questioning defendant for a few minutes by the side of the road,

defendant asked to move to a more private location. Donaruma followed her

to a nearby parking lot where the questioning continued for about an hour.

Over the course of the questioning, Donaruma informed defendant multiple

times that she was free to leave.

According to Donaruma, defendant initially denied involvement until he

showed defendant an image of herself from the post office’s surveillance

footage. Defendant then admitted she sent the package at the behest of her

then-boyfriend Izzo in an effort to get Fornaciari and Stockelberg in trouble





8



with the Township. Defendant explained how Izzo wanted to create the

appearance that Stockelberg, who “had an alliance” with Fornaciari, stole the

personnel file at Fornaciari’s direction to help with his lawsuit. Defendant

conceded she and Izzo drafted the letter together and she intentionally listed

the wrong return address so the package would end up with the Township.

Eventually, defendant asked to leave for work. She agreed to meet

Donaruma later that day at the police department. Donaruma arranged to have

her picked up in a nearby parking lot and taken to the garage entrance at the

police station because she did not want to be seen or have her car seen in the

Township parking lot. At the police station, defendant initially gave a

statement, then was advised of her Miranda rights, and invoked her right to

counsel. This statement was not admitted at trial.

Using the information defendant provided during the roadside stop,

police arrested Izzo on charges of second-degree official misconduct and third

degree misapplication of entrusted property. Upon arrest, Izzo gave a

statement to police contradicting defendant’s account. He claimed the

personnel file had been stolen out of his truck at the bar. As a result, the

police obtained and reviewed Izzo’s and defendant’s phone records, as well as

the surveillance footage from the bar showing defendant entering Izzo’s truck.





9



On October 2, defendant gave another statement in the presence of her

attorney, which was later played at her trial. In it, defendant indicated that, by

the time she mailed the package, she was no longer dating Izzo. She asserted

she had permission to enter Izzo’s truck and remove her personal effects, and

that she accidentally grabbed the personnel file. Upon realizing her mistake,

she decided to send it back to Fornaciari to spite Izzo and help with the

lawsuit. She explained that Fornaciari’s address was correct and that she

intended for him to receive the envelope and cover note. She claimed she had

no intention of involving Stockelberg and only provided her return address

when prompted for an address by the employee at the post office.

B.

After police arrested defendant, a Hunterdon County grand jury returned

an indictment charging her with fourth-degree false reporting, N.J.S.A. 2C:28

4(b)(1); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4); and

third-degree burglary, N.J.S.A. 2C:18-2(a)(1).

Defendant filed a motion to suppress the contents of her roadside

statement to Donaruma based on a violation of the Fifth Amendment.

Defendant did not challenge the validity of the initial roadside stop under the

Fourth Amendment. Because the trial judge determined defendant was not in





10



custody during the stop and the subsequent questioning, he denied her motion

and admitted her roadside statement at trial.

After a five-day-long trial, a jury found defendant guilty on all three

counts. The judge sentenced her to two years of probation and one hundred

hours of community service.

Defendant appealed, challenging, in part, the initial stop. The Appellate

Division reversed her convictions, remanding for a new trial. Defendant had

not raised a Fourth Amendment challenge to the stop before the trial judge so

the Appellate Division reviewed for plain error under Rule 2:10-2. As relevant

here, the court held the roadside stop was unconstitutional because there were

neither “particularized facts justifying the stop” nor “articulable and

reasonable suspicion that [defendant] either committed a motor vehicle offense

or was engaged in criminal activity.”

Following a motion for reconsideration, the Appellate Division changed

course as to the burglary conviction only. In the court’s view, there was clear

evidence that defendant entered Izzo’s truck without permission, removed the

personnel file, and mailed it to the Township.

Both sides sought certification from this Court. On February 9, 2018,

we granted defendant’s petition, “limited to the issue of whether the burglary

conviction also should have been reversed due to the admission of defendant’s





11



incriminating roadside statement, which influenced the jury’s determination as

to defendant’s credibility.” 232 N.J. 289 (2018). We also granted the State’s

cross-petition in full. 232 N.J. 293 (2018). We further granted the Office of

the Attorney General’s and the American Civil Liberties Union of New

Jersey’s motions for leave to appear as amici curiae.

Following oral argument, this Court “determined that a remand to the

trial court [wa]s required for that court to make a record and findings of fact

and law on whether the officer’s stop of defendant’s vehicle was constitutional

under U.S. Const. amend. IV and N.J. Const. art. I, ¶ 7.” ___ N.J.___ (2018).

We ordered that, “among other things, the trial court should address whether,

under the circumstances of this case, a police officer may stop a vehicle to

question the driver when both the stop and the questioning are unrelated to any

motor vehicle violation.” Ibid. We retained jurisdiction over the matter to

review the trial court’s ultimate findings of fact and conclusions of law. Ibid.

C.

On remand, the trial judge took testimony from Camporeale and

Donaruma. The judge concluded that “under the circumstances of this case the

stop and resultant seizure [were] unconstitutional.” The judge’s conclusion

centered on her finding that Donaruma lacked reasonable suspicion of





12



defendant’s participation in a crime, which should have prevented him from

pulling her over.

Initially, the judge rejected the State’s contention that the detectives’

repeated attempts to contact defendant established reasonable suspicion of

defendant’s criminality. The judge found there was no evidence defendant

received Donaruma’s business card, and Donaruma never positively identified

the woman who peered from behind the curtain as defendant. At best, the

judge reasoned, “the only conclusion one could reach is that these

circumstances did increase [Donaruma’s] suspicion that defendant was

avoiding contact.” Yet, in the judge’s view, that was insufficient to engender

reasonable suspicion of defendant’s involvement in a crime.

The judge noted that, at the time of the stop, law enforcement was “still

investigating the matter to see if a felony had actually been committed,

whether by Izzo alone and/or by someone yet unknown, perhaps with the aid

of defendant.” The judge emphasized that, while Donaruma knew defendant

mailed a personnel file she ordinarily could not access, it was unclear whether

Izzo had authorized her possession of it. Moreover, the judge highlighted

Donaruma’s testimony revealing that he intended solely to speak with

defendant to further his investigation and was not suspicious of her

involvement in a crime. For that reason, the judge concluded “it was improper





13



to seize the defendant merely to continue the investigation to determine what,

if anything, of a criminal nature occurred.”

Additionally, the judge held that, even if Donaruma had reasonable

suspicion in the first instance that defendant had been involved in a crime, the

stop was nevertheless unconstitutional because it was “not objectively

reasonable.” As defendant was neither a threat to public safety nor a flight

risk, the judge concluded that Donaruma had no need to stop her. Instead, the

judge explained, Donaruma “could have followed the defendant, wait[ed] for

her to exit her vehicle, and thereafter attempt[ed] to speak with her.”

II.

The State argues the judge erred because Donaruma had a reasonable

and articulable suspicion that defendant was involved in a crime, thereby

justifying the stop. The State highlights how (1) Donaruma knew Izzo and

Fornaciari were embroiled in a lawsuit; (2) Fornaciari’s personnel file was

missing and should not have left the building; (3) Izzo had access to the file;

(4) Izzo was dating defendant; (5) defendant was caught on video with the file;

and (6) defendant inscribed a false return address on the package ostensibly to

cover her tracks.

The State reasons that, just as Izzo’s improper removal of the personnel

file would constitute official misconduct, so too would defendant’s assistance





14



render her an accomplice to that illegal act. And given that detectives learned

from an assistant prosecutor at the Hunterdon County Prosecutor’s Office that

official misconduct was a potential charge in their investigation, the State

concludes Donaruma had reasonable suspicion of defendant’s involvement in a

crime.

The Attorney General aligns with the State, adding that defendant’s

furtive actions to avoid contact with the police augmented the reasonableness

of Donaruma’s suspicion. The Attorney General also underscores the

reliability of Pietrefesa’s original complaint that the personnel file was

improperly removed and returned under false pretenses.

Defendant counters that Donaruma lacked reasonable suspicion to stop

her, so this Court should suppress her statement as the fruit of an illegal stop.

In her view, the testimony developed at the remand hearing reveals that, at the

time of the stop, Detective Donaruma was “unsure that a crime had even been

committed, let alone what [her] role was.” Therefore, as the trial judge found,

“a desire to talk to a potential witness” like defendant, particularly during the

earliest stages of an investigation, “does not constitute reasonable and

articulable suspicion required to justify an investigatory stop and detention.”

Defendant further suggests that even if the stop was initially constitutional, we

must still suppress her statement because “[t]he means used in this case: a





15



baseless motor-vehicle stop, and then a lengthy, un-Mirandized interrogation,

were wholly unreasonable.”

For its part, the American Civil Liberties Union of New Jersey (ACLU)

joins defendant, claiming “Donaruma stopped [her] (1) because he was

impatient and (2) he wanted to speak with her about someone else’s possible

wrongdoing.” The ACLU asserts Donaruma knew only “a few disconnected

facts” that afforded nothing more than a mere hunch about her involvement in

a crime, not a reasonable suspicion based on specific and articulable facts.

III.

We deferentially review the trial judge’s factual findings, crediting those

“which are substantially influenced by [the] opportunity to hear and see the

witnesses and to have the ‘feel’ of the case, which a reviewing court cannot

enjoy.’” State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson,

42 N.J. 146, 161 (1964)). We will not substitute the trial judge’s findings of

fact for our own simply because we may have drawn a different conclusion

from the evidence. Ibid. Rather, “[a] trial court’s findings should be disturbed

only if they are so clearly mistaken ‘that the interests of justice demand

intervention and correction.’” Ibid. (quoting Johnson, 42 N.J. at 162). That

said, we owe no deference to the trial judge’s legal conclusions, which we

review de novo. State v. Hinton, 216 N.J. 211, 228 (2013).





16



IV.

A.

We first address the State’s contention that Donaruma lawfully stopped

defendant to obtain her roadside statement. “Both the United States and the

New Jersey Constitutions protect citizens against unreasonable searches and

seizures.” State v. Mann, 203 N.J. 328, 337 (2010) (quoting State v. Amelio,

197 N.J. 207, 211 (2008)). Generally, a warrantless search or seizure is

invalid absent a showing that it “falls within one of the few well-delineated

exceptions to the warrant requirement.” Id. at 337-38 (quoting Elders, 192

N.J. at 246). Those exceptions include investigatory stops, also known as

Terry stops after the landmark United States Supreme Court decision, Terry v.

Ohio, 392 U.S. 1 (1968).

Though the parties disagree on many issues in this appeal, they agree

that Donaruma’s encounter with defendant was such an investigatory stop.

Therefore, we need not consider whether Donaruma seized defendant in the

first instance. Rather, the State must now prove by a preponderance of the

evidence that this presumptively invalid investigatory stop was constitutional.

Mann, 203 N.J. at 337. If the State cannot meet its burden, then we will

suppress the fruits of the stop: namely, defendant’s roadside statement to





17



Donaruma. State v. Smith, 155 N.J. 83, 100 (1998) (“Evidence obtained as the

fruit of an unlawful search or seizure must be suppressed.”).

The State must show the stop was “based on specific and articulable

facts which, taken together with rational inferences from those facts, give rise

to a reasonable suspicion of criminal activity.” Mann, 203 N.J. at 338 (quoting

State v. Pineiro, 181 N.J. 13, 20 (2004)). Put differently, we “must assess

whether ‘the facts available to the officer at the moment of the seizure . . .

warrant[ed] a [person] of reasonable caution in the belief that the action taken

was appropriate.’” Ibid. (quoting Pineiro, 181 N.J. at 21). While reasonable

suspicion is a “lower standard” than probable cause, State v. Stovall, 170 N.J.

346, 356 (2002), “[n]either ‘inarticulate hunches’ nor an arresting officer’s

subjective good faith can justify infringement of a citizen’s constitutionally

guaranteed rights,” State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Terry, 392

U.S. at 21). We evaluate the totality of the circumstances to determine

whether an officer had a reasonable suspicion that justified an investigatory

stop. Pineiro, 181 N.J. at 22.

We have previously considered the constitutionality of a vehicular stop

where the officer’s suspicion was not based on an observed traffic violation.

In State v. Amelio, the defendant’s daughter called a police dispatcher to

report a domestic disturbance at her home. 197 N.J. at 210. While officers





18



were en route she called back, this time informing the dispatcher that her

father had drunkenly left their home, and providing the make, color, and

license plate of his car. Ibid. With that knowledge, officers spotted the

defendant’s car and pulled him over, arresting him for driving while

intoxicated and refusing to submit to a breathalyzer test. Ibid. We held the

officers had a reasonable and articulable suspicion sufficient to justify the

stop. Id. at 209. Besides the fact that his daughter provided an accurate

description of his car, we emphasized that she identified herself in the call,

thereby exposing herself to criminal prosecution if she had knowingly made a

false report. Id. at 214. In that way, she lent credibility to the information she

conveyed to the dispatcher and, in turn, to the arresting officers’ suspicion that

her father was driving while intoxicated. Ibid.

Similarly, in Arthur, a police officer surveilling an area “known for

heavy narcotics activity” saw the defendant park his car, a person enter the car,

and then that person exit with a paper bag she did not initially have. 149 N.J.

at 3. After the defendant drove off, another officer stopped the former

passenger, searched her bag, and found narcotics paraphernalia. Ibid. The

surveilling officer radioed that information and a description of the

defendant’s car to his colleagues, who would later pull the defendant over and





19



arrest him. Id. at 5-6. In affirming the stop of the defendant’s vehicle, we

explained

[p]olice officers should consider whether a defendant’s actions are more consistent with innocence than guilt; however, simply because a defendant’s actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt.



[Id. at 11.]



Because of a separate question surrounding the seizure of the passenger,

we considered the legality of the stop of the defendant’s vehicle independent

of the fact that the passenger’s bag was ultimately found to contain drug

paraphernalia. Id. at 12. Nevertheless, we affirmed the stop on the other facts

available to the officers at the time. Id. at 12-13. We highlighted that, while it

was true the officer conducting surveillance did not “literally” observe a drug

transaction between the passenger and the defendant, “it was readily inferable”

that the defendant’s actions were more consistent with illegal narcotics activity

than another explanation even without the knowledge that the passenger’s bag

contained drugs. Id. at 11-12. The defendant parked in a known area of high

drug traffic, a person entered his vehicle for only a few minutes then left with

a paper bag, that person “engaged in furtive movements upon exiting the

vehicle and tried to conceal the bag,” and officers testified that paper bags





20



were often used for selling drugs. Id. at 10. We approved the stop, ascribing

significance to “the rational inferences that could be drawn from the facts

objectively and reasonably viewed in light of the officer’s expertise.” Ibid.;

accord State v. Davis, 104 N.J. 490, 503 (1986) (citing with approval

consideration of officer’s “training and experience” in evaluation of

investigatory stop).

Conversely, in State v. Maryland, as the defendant, his stepbrother, and a

companion exited a commuter train, two undercover officers on graffiti patrol

spotted the defendant place a brown paper bag in the waistband of his pants.

167 N.J. 471, 477 (2001). The officers suspected him of concealing either a

weapon or contraband. Id. at 478. After they stopped the defendant to ask

what he was carrying, he turned his body slightly and reached into his

waistband area, prompting a struggle with the officers that caused several bags

of marijuana to spill onto the ground. Ibid. As relevant here, we found the

officers’ suspicion was insufficient to support the initial stop. Id. at 486. We

compared the facts to Arthur and reasoned that, unlike in that case, these

officers “observed nothing suggesting that a drug transaction had taken place.”

Id. at 487. The officers were not on narcotics-surveillance duty and the train

station was not a high drug traffic area. Ibid. At most, they saw the defendant

carrying a paper bag in his waistband and had an inarticulate hunch that he





21



may have been engaged in illegal activity. Ibid. We underscored how they

failed to explain why, in their experience, that act alone suggested the

defendant was carrying drugs. Ibid.

Those decisions reveal a highly fact-intensive inquiry. Each case exists

on a spectrum of permissible and impermissible investigatory stops.

Ultimately, we must place ourselves in the shoes of a reasonable officer and

consider the knowledge available to Donaruma at the time he pulled defendant

over. Mann, 203 N.J. at 338; accord Terry, 392 U.S. at 21-22 (“[W]ould the

facts available to the officer at the moment of the seizure . . . ‘warrant a

[person] of reasonable caution in the belief’ that the action taken was

appropriate?”). We discern from the record that Donaruma was aware of the

lawsuit between Fornaciari and Izzo. He also knew Fornaciari’s personnel file

had gone missing, and Izzo had the ability to access it. He further recognized

prosecutors could bring charges of official misconduct and misapplication of

entrusted property based on what he discovered in the course of his

investigation. He saw the video of defendant mailing the file and inscribing a

false return address on the package. As a result, he attempted to contact

defendant on multiple occasions -- even personally visiting her home -- to no

avail.





22



Based solely on the foregoing, however, we find Donaruma could not

have reasonably suspected defendant participated in a crime. The record

supports the trial judge’s finding that “the officers did not even know at the

time that a crime had occurred.” See Elders, 192 N.J. at 244 (“A trial court’s

findings should be disturbed only if they are so clearly mistaken ‘that the

interests of justice demand intervention and correction.’” (quoting Johnson,

42 N.J. at 162)). Before stopping defendant, the detectives did not interview

anyone besides Pietrefesa: not even Izzo. The record amply supports the

judge’s conclusion that, at the time of the stop, Donaruma was “still

investigating the matter to see if a felony had actually been committed,

whether by Izzo alone and/or by someone yet unknown, perhaps with the aid

of defendant.”

Donaruma’s testimony on remand belies the State’s assertion that

Donaruma reasonably suspected defendant participated in a crime. When

asked whether defendant was the target of his investigation, he replied “[s]he

was not.” When probed as to whether she was even a suspect, he answered

“[s]he was not at that time.” For that reason, he explained how he did not stop

defendant with the intent of arresting her because he “had no reason to.” His

statements to defendant at the police station after their roadside encounter are

consistent with his testimony. Donaruma told defendant five times that she





23



was neither “the target” nor “the focus” of the investigation. Instead, he

explained that Izzo was “being investigated for official misconduct. . . . What

you are now is a participating contact, okay.” (emphasis added).

Donaruma’s statements reveal that Izzo was the object of the police’s

focus at the time of the stop. He testified they “were just doing an

investigation of Mr. Izzo at that point.” But, as to defendant, he stated, “[a]t

that point in time, I didn’t know what was in the package, that she put that

stuff in the package. She was just mailing the package.” It is obvious, then,

that Donaruma stopped defendant to develop his investigation into Izzo. He

was neither subjectively aware a crime had been committed nor suspicious of

defendant’s involvement in such a crime. At best, he had an “inarticulate

hunch,” but he could not -- and, unsurprisingly, did not -- reasonably consider

defendant to be a suspect. See Arthur, 149 N.J. at 8 (quoting Terry, 392 U.S.

at 21).

From an objective perspective, defendant’s actions on the post office

surveillance footage -- her only link to the investigation to that point besides

her relationship with Izzo -- were not reasonably more consistent with guilt

than innocence. See Arthur, 149 N.J. at 11. Moreover, the police here did not

have a reliable tip concerning defendant’s commission of a specific crime.

Rather, they had a report from Pietrefesa that the personnel file mysteriously





24



returned to the construction office, as well as a suggestion from the assistant

prosecutor that the file’s removal could lead to charges “depending on . . . how

this envelope left the building.” That defendant did not respond to the

officers’ calls or visits does not alter our conclusion. To be sure, a blatant

attempt to hide from the police can augment suspicion. See State v. Valentine,

134 N.J. 536, 551 (1994) (finding stop-and-frisk was reasonable because,

among other things, the defendant “ducked behind a tree after seeing [a] police

vehicle”). However, the trial judge noted “[t]here was no specific testimony

setting forth” the conclusion that Donaruma became suspicious due to

defendant’s elusive behavior. The judge further found “Donaruma could not

recall if he left any voice messages,” and there was neither “evidence that

defendant received the business card . . . [nor] positive identification of the

woman in the window.”

Viewing the facts cumulatively, we cannot agree with the State that there

was reasonable suspicion “based on specific and articulable facts” of

defendant’s involvement in a crime. See Mann, 203 N.J. at 338 (quoting

Pineiro, 181 N.J. at 20). And, absent reasonable suspicion, Donaruma could

have furthered the investigation by conducting a field inquiry. See State v.

Rosario, 229 N.J. 263, 271 (2017) (“A field inquiry is essentially a voluntary

encounter between the police and a member of the public in which the police





25



ask questions and do not compel an individual to answer.”). To the extent

defendant still refused to speak with him but the information she possessed

was vital to his investigation, a subpoena would be the next step. See R. 1:9-1.

In other words, there were alternatives available to Donaruma short of

activating his overhead lights and pulling defendant over just to ask her

questions. A law enforcement officer cannot use an automobile stop merely

for the purpose of a police interview.

We reiterate that “our constitutional jurisprudence evinces a strong

preference for judicially issued warrants” and an investigatory stop is an

exception justified only by reasonable suspicion of involvement in a crime.

Elders, 192 N.J. at 246. To validate such a stop, the State must proffer more

than disconnected facts supporting varying conclusions about a defendant’s

conduct; rather, the State should highlight specific and articulable facts which,

taken together with rational inferences from those facts, demonstrate how the

defendant’s actions were more consistent with guilt than innocence, thereby

amounting to reasonable suspicion of criminal activity. In short, an officer

cannot conduct an investigatory stop without observing a traffic violation or

having a reasonable suspicion of other criminal activity. We hold that the

State failed to meet its burden here. Because we have determined that the stop





26



was unconstitutional, we need not address defendant’s additional argument

that the scope of the stop was unreasonable.

B.

The State and the Attorney General also argue that, even if the stop was

unconstitutional, defendant’s incriminating statement is admissible because it

was sufficiently attenuated from the stop. Specifically, they contend that, after

defendant told Donaruma she would speak with him in a more private location,

Donaruma’s repeated indications to her that she was free to leave constituted

intervening circumstances rendering her statements admissible. We disagree.

Though ordinarily we apply the exclusionary rule to the fruits of an

unlawful stop, we will not exclude evidence sufficiently attenuated from the

taint of the stop. State v. Worlock, 117 N.J. 596, 621 (1990) (relying on Wong

Sun v. United States, 371 U.S. 471, 486 (1963)). To determine whether a

statement is accordingly attenuated, we examine 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.” State v. Williams, 192 N.J. 1, 15 (2007)

(quoting State v. Johnson, 118 N.J. 639, 653 (1990)); accord Brown v. Illinois,

422 U.S. 590, 603-04 (1975).





27



Because the length of time between the initial stop and the subsequent

statement can lead to ambiguity, it is the least important factor. State v. Shaw,

237 N.J. 588, 614-15 (2019) (“[A] long detention could suggest increasing

pressure or dissipation of the initial shock of arrest, and a short detention could

indicate the confession was a product of the initial shock or that the confession

was unrelated to the arrest.”). This factor also necessarily involves

consideration of the conditions of the unlawful detention. Id. at 615.

Next, we weigh the purported intervening circumstances, which “can be

the most important consideration.” Ibid. In response to an unconstitutional

stop, “the State should show some ‘demonstrably effective break in the chain

of events.’” Worlock, 117 N.J. at 623-24 (quoting Brown, 422 U.S. at 611

(Powell, J., concurring)). For example, we have found that resisting arrest and

eluding the police after an unconstitutional stop can constitute intervening acts

justifying admission of later-obtained evidence. See, e.g., Williams, 192 N.J.

at 16. Conversely, the United States Supreme Court reversed a conviction

based on an improperly admitted confession because the police’s Miranda

warnings were insufficient to purge the taint of an illegal arrest. Dunaway v.

New York, 442 U.S. 200, 218-19 (1979).

Last, the flagrancy and purpose of the arrest “is particularly relevant” to

determining whether evidence is the fruit of the arrest. Shaw, 237 N.J. at 615.





28



For instance, we may favor exclusion in spite of intervening circumstances

where police conduct was “calculated to cause surprise, fright, and confusion.”

Brown, 422 U.S. at 605. However, where the police acted in good faith or

their “conduct was more casual than calculating,” this factor weighs in favor of

admission. Worlock, 117 N.J. at 624.

As applied here, we hold defendant’s statement to Donaruma was not so

attenuated from the initial stop as to avoid exclusion. Specifically, we find the

first factor favors admission. Approaching an hour, their encounter was

somewhat long. However, under these circumstances, the length of the stop

more likely suggests that the initial shock of the stop had worn off, as there is

no indication in the record that increasing pressure from Donaruma yielded

defendant’s statement. Indeed, Donaruma was not overbearing, allowed

defendant to move to a less conspicuous location, and never asked her to leave

her vehicle. Yet, this is the least significant factor.

More importantly, the second factor weighs in defendant’s favor.

Donaruma’s repeated indications that she was free to leave by no means

purged the taint of the initial stop. His assurances did not change the character

of the conversation -- which was plainly the product of the initial stop – to

arise by virtue of defendant’s own volition. There were no intervening

circumstances or events between the stop and defendant’s statement, such as





29



defendant seeking counsel. Instead, Donaruma’s admonitions are similar to

the Miranda warnings the United States Supreme Court has already ruled to be

insufficient to break the chain of causation. See Dunaway, 442 U.S. at 218-19.

Finally, we find the third factor to be in equipoise. While we do not

believe Donaruma’s conduct was calculated or purposefully unconstitutional,

we do note that, by his own admission, Donaruma pulled defendant over

without any suspicion of her participation in a crime. That type of

constitutional violation cannot support the admission of what it may later

yield.

On balance, then, we hold the factors weigh in favor of exclusion. We

cannot condone the admission of evidence stemming from the unconstitutional

detention of a person where the police simply state the detainee is free to

leave. In our view, that is a bridge too far. We therefore apply the

exclusionary rule to defendant’s roadside statement. And, having disposed of

defendant’s statement implicating Izzo and leading to his arrest, we reverse her

convictions for false reporting and hindering apprehension, which were based

entirely on that statement.

C.

Finally, defendant asks us to reverse her burglary conviction. She

asserts the extensive testimony at trial concerning her roadside statement, in





30



which she lied and falsely implicated Izzo, irreparably damaged her credibility

with the jury. She claims the admission of that statement made it impossible

to rebut the State’s assertion that she had entered Izzo’s truck without

permission.

Because defendant initially failed to challenge the admission of her

roadside statement on Fourth Amendment grounds, we review its application

to her burglary charge for plain error. R. 2:10-2. We must disregard any

unchallenged errors or omissions unless they are “clearly capable of producing

an unjust result.” Ibid. We have noted that is a “high bar,” State v.

Santamaria, 236 N.J. 390, 404 (2019), requiring reversal only where the

possibility of an injustice is “real” and “sufficient to raise a reasonable doubt

as to whether the error led the jury to a result it otherwise might not have

reached,” State v. Macon, 57 N.J. 325, 336 (1971).

To prove burglary, the State must show that defendant entered a

“structure” with the purpose to commit an offense therein, unless she was

“licensed or privileged” to enter. N.J.S.A. 2C:18-2(a)(1); see also N.J.S.A.

2C:18-1 (providing that “structure” includes a car). Consequently, permission

to enter a vehicle negates an element of burglary, unless the defendant exceeds

that permission by committing an offense therein. See State ex rel. Qarmout v.

Cavallo, 340 N.J. Super. 365, 368-69 (App. Div. 2001). Yet, the defendant





31



will not be guilty if the defendant committed that offense by accident. See

N.J.S.A. 2C:18-2(a) (requiring intent to commit an offense while entering a

structure to prove burglary).

Defendant’s guilt, therefore, hinged on whether she had permission to

enter Izzo’s truck. While Izzo testified that he never gave such permission,

defendant informed police that, on the night of the alleged burglary, Izzo told

her “you know where the shit is, my truck is always open, go get it.” She

stated she had left items such as “clothing” and “a little umbrella” in his truck.

As she explained to police, she took the personnel file by accident because it

was among her personal effects: “I thought I was taking my possessions.” If

the jury believed defendant’s version of events, then it would not have found

her guilty of burglary.

Yet, this was unlikely in light of the State’s exploitation of

contradictions between defendant’s roadside statement and the statement she

gave to police on October 2. The prosecutor’s opening statement was a

lengthy indictment of defendant’s credibility, pitting her against both

Donaruma and Izzo. The prosecutor highlighted six contradictions between

the two stories defendant gave police, including whether (1) defendant and

Izzo were still dating at the time she mailed the package; (2) defendant herself

mailed the package; (3) she did so at Izzo’s behest; (4) they drafted the letter





32



to Fornaciari together; (5) she intentionally listed the wrong return address;

and (6) she sent the package to get Fornaciari and Stockelberg or Izzo in

trouble. The prosecutor further elicited those contradictions through

Donaruma’s account of the roadside statement given at trial and by playing

defendant’s recorded statement on October 2 for the jury.

The prosecutor recognized the connection between the burglary charge

and defendant’s credibility. As she told the jury in her closing,

So, what do we have here? You have Phil Izzo’s statement and her statements about the truck.



. . . .



Who is being honest here? And so, finally, the officers that had enough and they said to [defendant], tell us the truth. Tell us the whole truth. And finally, after four hours, she says, well, I took it. I took a package. I took the papers but I didn’t know I had them. You see? Four hours to get to that. She knew she had it the whole time. She knew what she took. She knew when she took it and she knew it was wrong and she couldn’t bring herself to say it. Why? Because she doesn’t like to tell the truth. She has a hard time and that’s okay, ladies and gentlemen. That’s your job. That’s your job now. You get to determine how truthful she is.



Accordingly, by underscoring defendant’s lack of credibility, the prosecutor

effectively rebutted defendant’s claim that she had permission to enter Izzo’s

truck, and the jury found her guilty of burglary.





33



Nevertheless, additional facts in the record support defendant’s claim

that she had permission to enter the truck. Izzo left his truck unlocked and

failed to report to the police that it had been burgled. Phone records indicate

they had lengthy communications both before and after the day of the alleged

burglary, perhaps, in part, to arrange for defendant to collect her belongings.

Moreover, Izzo rarely patronized the bar in question, making it unlikely

defendant would know to find him there and break into his truck unless he

informed her of his plans. In addition, Izzo had his own credibility issues. He

turned out to have removed Fornaciari’s personnel file from the construction

office without permission. He lied to Pietrefesa by telling him the personnel

file was missing.

Had the trial court initially excluded defendant’s roadside statement,

defendant’s credibility would have remained intact because the State would

never have had the opportunity to highlight the falsehoods she told Donaruma.

In what then amounts to a credibility battle between defendant and Izzo -- who

has credibility issues -- she had a robust defense to the burglary charge.

Therefore, in our view, the admission of the roadside statement was “clearly

capable of producing an unjust result,” R. 2:10-2, because there is reasonable

doubt as to whether the jury would have found defendant guilty of burglary in

its absence, see Macon, 57 N.J. at 336. We do not pass judgment on the merits





34



of whether defendant burgled Izzo’s truck. We hold only that the admission of

her roadside statement substantially diminished the chances she could receive

a fair trial. Accordingly, having already discarded the roadside statement as

the product of an illegal stop, we reverse defendant’s conviction for third

degree burglary.

We agree with the trial judge’s determination that the investigatory stop

was unconstitutional. We therefore affirm the Appellate Division’s reversal of

defendant’s convictions for hindering apprehension and false reporting. We

further reverse defendant’s conviction for burglary, and remand for

proceedings consistent with this opinion.