State v. Scott, ___ N.J. Super. ___ (App. Div. 2023). This was a typically thorough and scholarly opinion by Judge Susswein. It is well worth reading in full. But because the decision recognized, near the outset, that it implicated “three issues of first impression,” it appears likely that the case will ultimately come before the Supreme Court. Accordingly, to offer a good flavor of what this was all about, what follows is the introductory section of Judge Susswein’s opinion, with its concise summary of the issues and the panel’s result, a reversal of the Law Division’s denial of a defense motion to suppress evidence, in which the Appellate Division applied the de novo standard of review of the legal issues involved:
“After pleading guilty to robbery, defendant appeals the denial of his motion to suppress an imitation handgun and the victim’s cell phone found on his person when he was stopped and frisked by police. The officers detained 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. The BOLO described the robber as a Black male wearing a dark raincoat. However, the victim did not provide the race of the perpetrator when she reported the crime. The State acknowledges it does not know why the police dispatcher included a racial description of the robber in the BOLO alert.
“Defendant contends 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. 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). The motion court also rejected defendant’s contention that the stop and ensuing frisk were unlawful under the Fourth Amendment.
“This appeal requires us to address three issues of first impression. As a threshold matter, we must decide whether the conduct of a police dispatcher can be the basis for an equal protection violation under the New Jersey Constitution. We hold 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.
“Second, we address whether ‘implicit bias’ can be a basis for establishing a prima facie case of police discrimination under the Segars burden-shifting paradigm. The problem of implicit bias in the context of policing is both real and intolerable. Accordingly, we hold evidence that permits an inference of implicit bias can satisfy a defendant’s preliminary obligation to establish a prima facie case of discrimination under Segars. When, as in this case, 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.
“Third, we must decide whether and in what circumstances the independent source and inevitable discovery exceptions to the exclusionary rule apply to the suppression remedy for a violation of Article I, Paragraphs 1 and 5 of the New Jersey Constitution. After considering the twin purposes of the exclusionary rule and balancing the cost of suppression against the need to deter discriminatory policing and uphold the integrity of, and public confidence in, the judiciary, we conclude the independent source exception does not apply in these circumstances. That exception allows a reviewing court to redact unlawfully obtained information to determine whether the remaining information is sufficient to justify a search. We conclude the application 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.
“With respect to the inevitable discovery doctrine, we hold 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. We therefore reverse the denial of defendant’s motion to suppress.”