Opinion
DOCKET NO. A-4823-09T2
02-01-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AARON H. BOYD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief). Paula T. Dow, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 08-10-0393.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).
Paula T. Dow, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Aaron Boyd appeals from his conviction, following a guilty plea, for second-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(2), fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a)(1), and driving while his driver's license was suspended, contrary to N.J.S.A. 39:3-40. Boyd argues on appeal that the trial judge should have suppressed the evidence resulting from the motor vehicle stop that led to his arrest and that the judge should also have granted his motion for access to the arresting officer's personnel and disciplinary records to determine whether there had been racial profiling. We affirm the denial of the motion to suppress premised on Boyd's Fourth Amendment claims, but remand for further consideration of the issue of selective enforcement.
I.
We discern the following facts and procedural history from the record on appeal.
On July 18, 2008, shortly after 3:30 a.m., Byram Township Police Officer Daniel DeWald observed Boyd's vehicle traveling westbound on I-80. The vehicle was in the middle lane of three westbound lanes, traveling at a speed between thirty-five and forty miles per hour. The speed limit on that section of I-80 was sixty-five miles per hour. DeWald also observed that the vehicle was failing to maintain its lane. Based upon the slow speed and inability to maintain the lane, DeWald activated his overhead lights to effectuate a traffic stop to investigate a possible driving while intoxicated.
Activation of the overhead lights on DeWald's marked police vehicle started the video recording camera mounted in the vehicle. Consequently, the events that followed were recorded, and the resulting video was played during DeWald's testimony.
After getting Boyd to pull over and stop, which Boyd was slow to do, DeWald approached the vehicle on the passenger side and spoke to Boyd through the open window. According to DeWald, Boyd appeared intoxicated because he was disoriented and had a slow, mumbling speech pattern. Boyd reached into the center console of the vehicle, but DeWald could not see what Boyd was doing there. DeWald went behind the vehicle and around to the driver's side. Because he could still not see what Boyd was doing with his hands in the console, DeWald decided to order him out of the vehicle.
DeWald told Boyd to exit the vehicle, but Boyd did not comply. DeWald tried to open the driver's door, which was locked. DeWald ordered Boyd several times to unlock the door and drop whatever was in his hands. When Boyd finally unlocked the door, he turned back to the console and refused to drop what was in his hands. Because DeWald was concerned about his safety, he opened the door and sprayed Boyd with pepper spray, after which he pulled Boyd out of the vehicle.
Boyd was holding a white bag in his hand as he was pulled out of the vehicle. DeWald described it as a shopping bag. The shopping bag contained approximately 250 small Ziploc bags, each of which contained a white powder that was subsequently determined to be cocaine. DeWald eventually determined that Boyd was not actually intoxicated, but arrested him for drug and driving offenses, including driving without a license.
Following his indictment in October 2008, Boyd moved to suppress the evidence seized at the time of the motor vehicle stop. That application was heard on May 19, 2009. At the beginning of the hearing, Boyd's defense counsel sought to present his client's pro se application for an in camera review of DeWald's personnel records, including complaints about his conduct. The judge initially declined to consider the application, but then heard argument from both sides on the issue. The judge refused to require the production of DeWald's records, but told Boyd that the "issue [could] be raised by [his] lawyer in any cross-examination of any of the State's witnesses."
DeWald was the only witness at the hearing. After hearing his testimony and counsels' argument, the judge denied the motion to suppress, explaining his reasons as follows:
But he initially was on, as we all saw, on the passenger side of this vehicle. And according to the officer, even before he questions this defendant, he observes the demeanor of the defendant as being an individual who he described as not being in full command of his faculties. He was not with it, so to speak. However, what he did observe, of course, was that the hands of the defendant were in this console area. He was not able to make . . . an observation of what it was the defendant was doing with his hands in that console area. He didn't know this defendant, never had any encounter with him prior. And so he goes around the back of the vehicle and to the driver's door, and demands that the [door] be opened.
Now, we're dealing with State v. Smith, it seems to the Court. State v. Smith is cited at 134 N.J. 599, a 1994 New Jersey Supreme Court decision which interprets the United States Supreme Court decision in Pennsylvania v. Mimms at 434 U.S. 106. And it concerns the issue of the operator of a vehicle being ordered out of the vehicle, and mentions the Terry standard that can be employed in concern for the welfare of the officer, and mentions the heightened awareness of danger as being justification for ordering the operator out of the vehicle. Because Officer DeWald did not know what he was confronting in the person of Mr. Boyd. And so he demanded he open the car. As he noted in his testimony, the defendant's body was turned away, but the defendant was looking back, and his hands remained in the console. That's why he wanted him out: For his protection; so he could see what it was that this defendant
was doing with his hands. And . . . the struggle ensued, of course.
It's true that the officer was standing in the area of the open door, but he was ordering the defendant out. One can certainly reasonably draw an inference that had Mr. Boyd exited the vehicle he would have been able to do so without the violent confrontation that, in fact, takes place. . . . [A]fter all, that was the command of the police officer: To exit the vehicle.
Why?
Because of the safety issues surrounding the defendant being observed with his hands constantly being in that console location, and the officer not knowing what this defendant was doing, he being the only officer initially at the scene of this stop.
And on these grounds, in the Court's judgment, there isn't really any significant issue for the Court to address in terms of the application for the defendant to suppress evidence that was seized from the defendant, himself. That being the baggie and the [Ziploc] bag which apparently came apart in the struggle, as one can observe from the video. And the other bag was, with the forcible actions of the officer against the defendant who was resisting, putting his hands behind his back, became loose. And was laying on the pavement, if you will. So in the Court's judgment . . . there is no violation of constitutional proscriptions against unreasonable searches and seizures. It is a seizure to have the officer have the defendant removed from the vehicle. In this particular case it was warranted because of the safety issue under Terry, the heightened awareness of danger to the officer.
The judge also denied Boyd's application for an in camera review of DeWald's records. He explained his reasons as follows:
Another issue that was raised in this matter initially at the beginning of this hearing, which was commented upon by Mr. Boyd and [defense counsel], concerned whether . . . there should be a review of this officer's personnel records. That involves an application . . . of the principles enunciated in State v. Harris, which is at 316 N.J. Super. 384. And as the Appellate Division held, in order . . . to require that type of review, even an in camera review, there has to be a factual predicate to indicate a reasonable likelihood of information that could affect the officer's credibility. In this
particular case, because we have the video, which is obviously the best evidence of what transpired on this particular early morning, there is an absence of any factual predicate that one can look to. The only argument that has been made is the comment by [defense counsel] about the manner of speaking of the officer to the defendant.
Now, that manner of speaking, I'm talking about the initial comments of the officer to Mr. Boyd, when the officer was standing on the passenger side of the vehicle, that manner of speaking comes against the immediate prior circumstances of this defendant being encountered by the officer on Route 80, seeing a vehicle traveling at a slow rate of speed. I believe the indication was approximately 40 miles an hour in a speed limit zone of 65 miles per hour, the vehicle not maintaining its lane, . . . with the overhead lights then being turned on, the vehicle slowly moving over to the right-hand lane and then slowly moving over, initially straddling the
side line and then slowly moving on to the shoulder and continuing to the point where the officer had to use his public address system to demand the vehicle be brought to a halt. It was against that scenario of events that the officer made the comments initially to Mr. Boyd at the scene when the vehicle finally did come to a stop. In my view that does not demonstrate any factual predicate under State v. Harris.
Boyd subsequently sought reconsideration of the motion for an in camera review of DeWald's records, which was denied following oral argument in August 2009. The judge again determined that there was an insufficient factual basis of racial profiling to warrant the discovery sought by Boyd.
Boyd entered the guilty plea outlined above on January 12, 2010. He was sentenced to an aggregate term of incarceration of ten years, subject to three-and-one-third-years of parole ineligibility. This appeal followed.
II.
Through counsel, Boyd raises the following issues on appeal:
POINT I: DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE INITIAL QUESTIONING OF THE DEFENDANT AND THE ENSUING WRENCHING OF THE DEFENDANT FROM HIS SUV BY OFFICER DEWALD CONSTITUTED AN UNJUSTIFIABLE DEGREE OF INTRUSION UNDER THE CIRCUMSTANCES SURROUNDING THE STOP OF THAT AUTOMOBILE.
POINT II: THE TRIAL COURT ERRED IN REFUSING TO CONDUCT AN IN CAMERA REVIEW OF OFFICER DEWALD'S PERSONNEL RECORDS.
In a pro se brief, Boyd has raised the following additional issues:
Point 1: All tangible records surrounding indictment [do] not coincide with the testimony of Officer Dewald, and should be [reviewed] with closer scrutiny as to whether the conflicting facts are liable to be prerequisites to a pre-textual stop and search.The appendix to Boyd's pro se brief contains documents concerning DeWald that were not part of the record in the Law Division. The State, which has moved to strike those documents for that reason, urges us to disregard them in connection of our consideration of this appeal.
A. The Stop.Point 2: Defendant's obtainment of Officer's I.A. records show numerous complaints, and also disparity of Officer's arrest of "black" race civilians and should determine the credibility of the state's witness.
B. False claim for fear of safety.
C. Defendant [was] checked by Emergency Squad for signs of intoxication. All signs came back normal. Officer Dewald testified he decided to forgo checking for signs, when in fact signs were checked.
A.
The Supreme Court has explained the standard of review applicable to a trial court's decision on a motion to suppress, as follows:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).In contrast to a judge's factual findings, a judge's legal determinations are subject to our plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.) (citing State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001)), certif. denied, 182 N.J. 148 (2004).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. 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. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.
[State v. Elders, 192 N.J. 224, 243-44 (2007).]
Under the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968) (seizure of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990) (seizure of property).
The seizure of a person occurs in a police encounter if the facts objectively indicate that "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects.'" Id. at 165 (quoting N.J. Const. art. I, ¶ 7).
In State v. Pineiro, 181 N.J. 13, 20 (2004), the Supreme Court defined a field inquiry as "the least intrusive encounter," occurring when a police officer approaches a person and asks if he or she is willing to answer some questions. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). During such a field inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).
In contrast to a field inquiry, an investigatory stop, also known as a Terry stop, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904. The motor-vehicle stop in this case was a Terry stop rather than a field inquiry.
The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop 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. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).
"To determine whether the State has shown a valid investigative detention requires a consideration of the totality of the circumstances." Elders, supra, 192 N.J. at 247; see also Privott, supra, 203 N.J. at 25-26 ("[A] reviewing court must 'evaluate the totality of circumstances surrounding the police-citizen encounter, balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions.'" (quoting Davis, supra, 104 N.J. at 504)). As the Supreme Court observed in Davis, supra, 104 N.J. at 505,
[s]uch encounters are justified only if the evidence, when interpreted in an objectively reasonable manner, shows that the encounter was preceded by activity that would lead a reasonable police officer to have an articulable suspicion that criminal activity had occurred or would shortly occur. No mathematical formula exists for deciding whether the totality of circumstances provided the officer with an articulable or particularized suspicion that the individual in question was involved in criminal activity. Such a determination can be made only through a sensitive appraisal of the circumstances in each case.
In evaluating the "totality of the circumstances," we "are to give weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154 N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). "The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as 'a reasonable person would find the actions are consistent with guilt.'" Id. at 279-80 (quoting Arthur, supra, 149 N.J. at 11).
We start our analysis with DeWald's decision to stop Boyd's vehicle. All that was required for such a Terry stop was a reasonable and articulable suspicion that Boyd was engaged in illegal activity, in this case either a violation of N.J.S.A. 39:4-88(b) (failure to maintain the lane) or N.J.S.A. 39:4-50 (driving while intoxicated). A reasonable and articulable suspicion can be based on facts that, standing alone, would not be sufficient to procure a conviction for the suspected offense or offenses. State v. Heisler, 422 N.J. Super. 399, 413 (App. Div. 2011) (citing State v. Williamson, 138 N.J. 302, 304 (1994)). The facts in the record, as found by the judge and as seen on the video recording of the stop, support the judge's conclusion that DeWald had a sufficient basis to make the stop.
The Supreme Court held in State v. Regis, __ N.J. __, __ (2011) (slip op. at 11-13) that the statute created a separate duty to remain within the lines of a driving lane without regard to whether the driver also intended to change lanes.
DeWald's observations when he spoke to Boyd from the passenger's side of the vehicle, as found by the motion judge, justified DeWald's decision to order Boyd to exit his vehicle. Indeed, it is not ordinarily a violation of the Fourth Amendment for a police officer to request a driver to exit his or her vehicle after effectuation of a Terry stop. "[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6, 98 S. Ct. 330, 333 n.6, 54 L. Ed. 2d 331, 337 n.6 (1977); State v. Smith, 134 N.J. 599, 609-10 (1994).
The judge further found that DeWald's concern for his own safety and Boyd's refusal to exit the vehicle promptly and voluntarily justified DeWald's decision to use pepper spray and pull Boyd from the vehicle. Whether DeWald was overly impatient under the circumstances or acting appropriately because of the possibility that Boyd was accessing a weapon was something for the trial judge to determine, based upon the testimony, the video recording, and his view of DeWald's credibility. We are satisfied that the record, including the video recording showing the events as they took place, contained sufficient credible evidence to support the judge's conclusion that DeWald did not act in a manner to violate Boyd's Fourth Amendment rights.
When Boyd was pulled out of the vehicle, he was holding bags of cocaine, rather than a weapon. Nevertheless, the cocaine was by that time in plain view and subject to seizure. Under the plain view doctrine, a warrant is not required to perform a search when a police officer is (1) lawfully present in the viewing area, (2) the officer inadvertently discovers the evidence in plain view, and (3) it is "'immediately apparent' to the officer that [the] items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002); see also State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
The United States Supreme Court in Horton v. California, 496 U.S. 128, 130, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112, 118-19 (1990), altered the inadvertence requirement so that it is essentially satisfied if the plain view observation is not pretextual. See State v. Johnson, 171 N.J. 192, 211-13 (2002). The officer must "not know in advance where [the] evidence was located nor intend beforehand to seize it." State v. Bogan, 200 N.J. 61, 79 n.10 (2009) (citations omitted).
Consequently, we affirm the order denying the suppression motion on Fourth Amendment grounds.
B.
Boyd also appeals the denial of his motion for an in camera review of DeWald's personnel records. The purpose of that review was to seek support for Boyd's assertion that DeWald was engaged in racial profiling.
We review the grant or denial of a motion to compel discovery on an abuse of discretion standard. State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201 N.J. 229 (2010). Although discovery requests are to be liberally construed, "a reviewing court will 'normally defer to the trial court's disposition of discovery matters.'" Serrano v. Underground Utils. Corp., 407 N.J. Super. 253, 268 (App. Div. 2009) (quoting Spinks v. Twp. of Clinton, 402 N.J. Super. 454, 459 (App. Div. 2008)).
It is beyond question that police violate due process and equal protection rights when they selectively stop a motor vehicle based on the race of its driver. See United States v. Armstrong, 517 U.S. 456, 463-66, 116 S. Ct. 1480, 1486-87, 134 L. Ed. 2d 687, 698-700 (1996); State v. Ballard, 331 N.J. Super. 529, 539-40 (App. Div. 2000); State v. Smith, 306 N.J. Super. 370, 376-78 (App. Div. 1997). The selective enforcement defense, if proven, may be used to exclude evidence pursuant to the exclusionary rule. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963); State v. Kennedy, 247 N.J. Super. 21, 30 (App. Div. 1991). However, proof of selective enforcement does not automatically require exclusion of all unlawfully obtained evidence; in determining the admissibility of evidence obtained from an illegal search and seizure, the relevant inquiry is whether the "connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint.'" Id. at 487, 83 S. Ct. at 417, 9 L. Ed. 2d at 455 (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 268, 84 L. Ed. 307, 312 (1939)).
Successful claims of selective enforcement are almost always supported by police records, which demonstrate a policy or pattern of discriminatory enforcement in a particular geographic area. State v. Halsey, 340 N.J. Super. 492, 501 (App. Div. 2001), certif. denied, 171 N.J. 443 (2002). However, in order to obtain discovery of such records, a defendant must first demonstrate "'a colorable basis for a claim of selective enforcement.'" Ibid. (quoting Kennedy, supra, 247 N.J. Super. at 25). This test strikes a balance between the relevance and probative value of such records and "the privacy of other citizens and the State's legitimate need for confidentiality with respect to particular items." Kennedy, supra, 247 N.J. Super. at 35.
"[T]he discovery threshold [in selective enforcement cases] is the same in all cases regardless of the police agency involved." Halsey, supra, 340 N.J. Super. at 503.
Specifically, "a defendant must present 'some evidence tending to show the existence of the essential elements of the defense and that the documents in the government's possession would indeed be probative of these elements.'" Halsey, supra, 340 N.J. Super. at 501 (quoting Kennedy, supra, 247 N.J. Super. at 32). The colorable basis test was further explained as follows:
The threshold test we adopt here constitutes a reasonable accommodation of competing values. A more lenient standard would encourage the assertion of spurious claims of selective enforcement as a means of burdening criminal trials with massive discovery of material completely irrelevant to the defendant's case. The "colorable basis" standard is nonetheless consistent with our Supreme Court's repeated exhortations that liberal pretrial discovery practice "promotes the quest for truth."
[Kennedy, supra, 247 N.J. Super. at 32 (citations omitted) (quoting State in Interest of W.C., 85 N.J. 218, 221 (1981)).]
Notably, a defendant is not required to make out a prima facie case of selective enforcement, that is, "one that if unrebutted will lead to a finding of selective prosecution." Id. at 34. Rather, there need only be a colorable basis for the claim "'that a police agency has an officially sanctioned or de facto policy of selective enforcement against minorities.'" Halsey, supra, 340 N.J. Super. at 501-02 (quoting Smith, supra, 306 N.J. Super. at 378).
While defendant's proofs need not rise to the level of a prima facie case, "the burden to establish such a claim 'is a demanding one.'" Id. at 501 (quoting Armstrong, supra, 517 U.S. at 463, 116 S. Ct. at 1486, 134 L. Ed. 2d at 698). Defendant must, however, "show that similarly situated individuals of a different class were not prosecuted for similar crimes." Ibid. (citing Armstrong, supra, 517 U.S. at 465, 116 S. Ct. at 1487, 134 L. Ed. 2d at 699).
Based upon our review of the record, we find no apparent abuse of the judge's discretion in denying the initial motion for in camera review and the motion for reconsideration on the record then before him. At the hearing on May 19, 2009, defense counsel relied on the assertion that there was a civil action pending against DeWald, the fact that DeWald did not pursue a car that passed him on the right at the time he was focused on Boyd, and the exchanges between DeWald and Boyd on the video, including DeWald's statement that he was not Boyd's "Bro."
We note that the complaint in the civil action was never supplied to the judge, either initially or at the time of the motion for reconsideration. The race or ethnicity of the other driver was not identified. And, the judge did not find the exchanges between DeWald and Boyd to supply a colorable basis for racial profiling discovery under Kennedy, supra, 247 N.J. Super. at 32. We also note that defense counsel did not question DeWald about his history of discipline or complaints, even though the judge had told him that he could do so at the start of the hearing. We are not inclined to find an abuse of discretion in the judge's refusal to order an in camera review on the basis of the record then before him.
In his pro se appendix on this appeal, Boyd has included almost two hundred pages of documents, most of which were not before the trial judge. He asserts that they demonstrate that complaints were, in fact, made about DeWald's conduct. We are unwilling to consider those documents on this appeal. As the State correctly argues in its motion to exclude them, such documents are not properly before the court because Boyd did not file a motion to supplement the record. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007) (citing Rules 2:5-5(b) and 2:9-1(a)). In addition, they have not been analyzed in an adversary proceeding on the trial level.
Nevertheless, because of the importance of the issue of racial profiling and the fact that at least some of the documents appear relevant to the issue of whether Boyd can show a colorable basis for further examination of his claim, we remand the issue to the Law Division for further consideration in light of the new documents, the existing record, and any additional submissions by the parties. If the remand judge concludes that additional discovery is warranted, the judge should proceed in accordance with the law as outlined above.
Because we have considered the pro se appendix for the limited purpose mentioned above, we deny the State's motion to strike. (M-001700-11).
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III.
In summary, we affirm the judge's denial of the motion to suppress to the extent it was based on violations of Boyd's Fourth Amendment rights. We remand the motion seeking discovery on the theory of selective enforcement for further consideration in accordance with this opinion. We do not retain jurisdiction.
Affirmed in part; remanded in part; motion to strike denied.