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A criminal defendant is entitled to discovery on his claim he was the victim of racial profiling by police, but it won’t necessarily taint evidence obtained after he fled during a traffic stop, the New Jersey Supreme Court ruled Wednesday. The ruling means that prosecutors must comply with the discovery requests even if they can later show that the relationship between the traffic stop and the search and seizure is so attenuated that the exclusionary rule does not apply. The attenuation doctrine should be raised if and when it is determined that racial profiling occurred, the unanimous court held in State v. Lee , A-34-06. “Unless defendant develops through discovery that the motor vehicle stop resulted from inappropriate conduct of the police, there will not be a need to address the attenuation argument,” Justice John Wallace Jr. wrote for the Court. Calvin Lee, upon being pulled over in a pick-up truck on I-80 in 1996, assaulted a state trooper and then ran a short distance before he was caught. Drugs were discovered during the subsequent search. His motion to suppress was denied and he was convicted of multiple drug charges. He is serving a 55-year prison term. In September 2000, Lee petitioned for post-conviction relief and sought discovery to support his claim that the traffic stop was the result of racial profiling. That same month, Union County Superior Court Judge Walter Barisonek, who had been designated to hear all motions for discovery relating to racial profiling by the New Jersey State Police, entered a management order stating in part: “The State of New Jersey through representatives of the Attorney General’s Office agrees for the purposes of these criminal litigations that from January 1, 1988 through April 20, 1999, a colorable basis to allow discovery regarding racial profiling has been established and that defendants perceived to be African-American, Black or Hispanic are entitled to discovery for motor vehicle stops that originated as a result of observations made by State Troopers on the New Jersey Turnpike, its extensions, Routes 80, 78, the Garden State Parkway and any and all other interstate roadways or parkways, whether the actual stop was on or off the interstate.” The state moved to dismiss Lee’s discovery request, arguing that the criminal conduct committed subsequent to the stop constituted a break in the chain of events between the stop and the discovery of the contraband. Barisonek dismissed the discovery request, finding Lee was stopped initially because of his race but that his post-arrest conduct made the search lawful. After Lee’s motion for leave to appeal was denied, a different judge denied his petition for post-conviction relief. Defendant appealed and the Appellate Division affirmed, with one dissent. On appeal to the Court, Assistant Deputy Public Defender Susan Brody argued that since the initial stop was illegal, any evidence obtained must be suppressed under the federal and state constitutions as “fruit of the poisonous tree.” She also argued that Barisonek improperly denied the discovery request as mooted by the attenuation doctrine. The state, represented by Deputy Attorney General Paul Heinzel, argued for the first time on appeal that the facts were so extreme that the only rational conclusion is that no racial profiling occurred. Heinzel noted that Lee was weaving and going 20 miles per hour below the speed limit. In Thursday’s ruling, the Court met the parties halfway. The justices rejected the state’s wish to sidestep the racial profiling issue altogether and move directly to the attenuation doctrine. Wallace cited the Appellate Division rulings in State v. Ball, 381 N.J. Super. 545 (App. Div. 2005), and State v. Gonzalez, 382 N.J. Super. 27 (App. Div. 2005), both of which said racial profiling claims must be examined before the attenuation doctrine is reached. If Lee is successful in demonstrating that he was a profiling victim, the trial judge should examine whether the drug evidence is admissible under the attenuation doctrine and the three prongs established by State v. Barry, 86 N.J. 80 (1981): the proximity of the arrest to the stop, any intervening circumstances and the flagrancy of the official misconduct. David Wald, a spokesman for Attorney General Stuart Rabner, says the state will comply with the Court’s ruling and not allow charges against Lee to be dismissed because of failure to provide discovery. “Discovery will proceed,” he says. Brody says she anticipates that the state will turn over material relating to racial profiling in general and the traffic stop histories of the two troopers involved in Lee’s stop, in particular. She declines to say what argument she would make if she is successful in proving that racial profiling was involved and then has to argue against the attenuation doctrine. “We’ll cross that bridge if and when we come to it,” Brody says.

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