Cop Pulled Over Defendant Because He Was Black, No Reasonable Suspicion

State v. Nyema

Appellate Docket No.: A-0891-18T4

Decided November 5, 2020

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In a published opinion, the Appellate Division of New Jersey overturned a denial of a motion to suppress when an officer investigating a robbery pulled over the defendant because three black males were in the car headed away from the scene.

In State v. Nyema, just after midnight, police received a dispatch transmission that a 7-Eleven store had been robbed by two black males, one of whom had a gun. A subsequent dispatch indicated the two men fled on foot.

When officer Horan was about three quarters of a mile away from the store, he saw a vehicle traveling toward him, away from the store. He pointed his spotlight into the vehicle and observed a male and female. Both reacted in a manner Horan described as alarmed or annoyed. In particular, the driver attempted to shield his eyes. Horan drove on and saw a second car traveling away from the store. When shining his light into that car, he “observed three black males[.]” He stated he “received no response from any of them that [he] could observe[.]” Horan explained that they did not look at him; rather, they looked straight ahead. Horan thought the men’s non-reaction was “odd,” and decided to stop the car.

While outside the vehicle, Horan observed dark jackets on the floor behind the driver’s seat. As Horan was speaking with the driver, he was contacted by dispatch and informed the car had been reported stolen. The officers ordered the three men out of the car and arrested them.

In addition to the jackets, police found and seized a black balaclava, a pair of knotted black panty hose, a white do-rag, black cloth gloves, a black knit ski mask, a black fleece front-zip jacket, and a brown “Elite MMA” front-zip hooded sweatshirt. The officers also searched for weapons, looking in the trunk and under the hood of the vehicle. Under the hood, Horan observed a red bandana. After retrieving it, he found a gun wrapped inside. Each occupant of the vehicle was also searched incident to their arrest, and cash was seized from each of them. Defendant was found to have $303 in cash.

Defendant and co-defendants Myers and Miller were indicted for firstdegree robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20-3(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree terroristic threats, N.J.S.A. 2C:12-3(a); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7(a). Defendant and Myers were also charged with fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(b). Defendant was separately charged with fourth-degree aggravated assault, N.J.S.A. 2C:12-13.

Defendant moved to suppress the physical evidence.  The trial court found that because the vehicle was stolen, defendant had no reasonable expectation of privacy. Also, Horan had a reasonable articulable suspicion the men had robbed the 7-Eleven because of the racial makeup of the occupants and the car driving away from the scene. The Court denied the evidence seized from inside the car, but granted the motion to suppress with regard to the gun found under the hood as the gun was not in plain view.

Defendant entered a plea agreement and appealed the denial of the motion to suppress.  The Appellate Division found that the officer only had evidence that three black men were in the car and the car was heading away from the store.  There was no evidence the car was speeding or committing any traffic violations.  This basis alone did not create a reasonable and articulable suspicion that a crime was committed.  Further, the trial court’s finding that the car was stolen and thus the defendant had no reasonable expectation of privacy was erroneous.  Instead, the evidence suggested the car was only reported stolen and defendant’s father testified that it was his car and it was not stolen.  Because the car was not actual stolen, defendant still had a reasonable expectation of privacy.  The case was remanded with the physical evidence found in the car suppressed.

This case is important because evidence of matching race or gender with regard to a report crime is insufficient to give rise to a reasonable articulable suspicion of a crime being committed.  Otherwise, police could pull over any car containing two or more black men with the facts listed above.  It is also important to understand that you have a reasonable expectation of privacy in your vehicle, and police cannot search it without a warrant.  An exception to this would be if you were lawfully pulled over – a reasonable articulable suspicion you were committing a traffic violation or some other crime – and police observed evidence within plain view.

It is vital to hire an experienced defense attorney to file a motion to suppress on every possible ground to ensure your rights are protected.  Leaving your matter up to the public defender may result in adverse consequences for your case.

At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case involving motions to suppress. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties.



Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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