*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW CALDWELL, v. ERIC DEFENDANT-APPELLANT. Argued January 20, 1999 Decided June *2 Halligan, Deputy Defender, Paul B. Assistant argued Public (Ivelisse Torres, appellant Defender, the cause for Public attor- ney). Corrado,
Robert Braun, H. Assistant Prosecutor and E. Steven Prosecutor, argued Senior Assistant respondent the cause for (Ronald Favo, Prosecutor, County S. Passaic attorney).
Marcy Speiser, General, Deputy Attorney H. argued the cause curiae, (Peter Attorney for amicus Jersey General of New Vemie- *3 ro, General, Attorney attorney). opinion was by Court delivered
GARIBALDI, J. appeal, this we decide whether defendant’s motion to sup- press evidence seized the time of properly his arrest was specifically, denied. More we consider whether his seizure police violated the Fourth Amendment of the United States Con- I, stitution and Article paragraph Jersey New Constitu- tion.
I. At defendant’s suppression hearing, County Passaic Sheriffs Department Detective'Anthony Smith testified. He stated that on April approximately p.m., 9:00 he a “beep” received from a confidential informant. Detective in Smith worked Warrant Division Department of the Sheriffs and had received reliable information from that informant past over the four and a years. half Stuart, The informant told him that Curtis who was warrant, wanted on a standing was in front of a multi-unit Paterson, Street, Jersey. The New dwelling at 86 Butler a male Stuart was black but informant told the Detective Mr. of him he give description because physical not a detailed could type what face” and did not notice only “caught glimpse of his wearing. personal had no Detective Smith clothes Mr. Stuart was like; only he knew that he knowledge looked of what Curtis Stuart standing of Butler Street. male outside purportedly was black history, Detective Smith acted informant’s credible Due his patrol sheet in car. tip checked the active warrant on the individuals with contains all names of The active warrant sheet names outstanding question, over 1500 night warrants. On the that a warrant was sheet. The cheek verified were on warrant However, unbeknownst to Detec- outstanding for Curtis Stuart. Smith, and the warrant warrant list was incorrect tive the active on June ten months earlier for had been vacated Curtis Stuart June originally issued on 1994. The warrant for Stuart was However, appeared appear his trial. Stuart 1994 for failure vacated. was day next and the warrant was Stuart in court the years jail. day of defen- eventually to four On sentenced days in arrest, already for five had incarcerated dant’s Stuart been County the Passaic Jail. tip and his belief that the active
Acting on the informant’s correct, proceeded to 86 Butler Detective Smith warrant list was in an un- Sergeant Detective Arcieri with Ferrera and Street multi-unit in front of the police unit. The officers arrived marked receiving page. As their dwelling within five minutes a black dwelling, three officers saw approached the vehicle male building. The black standing in front of the male alone *4 defendant', Smith Eric Caldwell. Detective later identified as When directly in of 86 Butler Street. pulled the front vehicle turned, police approaching, car he unmarked defendant saw the them, building. The officers exited ran into the looked at up ran the front building. Defendant vehicle and ran toward the hallway way when down steps quarter and was any police, run more.” yelled, “stop, ... don’t Detective Smith Detective testified he [defendant] Smith “asked to walk direction, towards [his] which [defendant] did.” The officers had hallway clear view of the and could see defendant the entire time. immediately stopped upon hearing Defendant Detective Smith’s and, command. He turned face the officers in the process, object right tossed an from his hand. Detective Smith explained that, suppression hearing at the “[a]fter I asked him to stop, stopped, began he to walk me toward and discarded some- thing---- (sic) turned, He turned and I came—As he seen him something.” toss attorney specifically The defense asked Detec- Smith, attempt tive “Did he by any to conceal the throw chance? specifically, ... Did do it overtly he or itwas a kind of movement try your and discard knowledge?” it without Detective Smith answered, “Exactly, moving my knowledge.” without object hallway plain landed on the floor in view of the three officers. Detective Arcieri detained defendant while Detective object. Smith retrieved the tossed Detective Smith large found a plastic bag sixty containing plastic bags smaller of crack cocaine. retrieving contraband, After patted the detectives down defen- pat-down dant and handcuffed him. The seven uncovered more plastic bags marijuana filled with in cash. The $28 placed then brought defendant under arrest and squad him to the room processing.
When why asked attorney the defense began he to chase defendant, responded, Detective Smith “The reason I chased him was because I information received that time. I ob- served him as only location, male outside of the and he turned away Warrants, and ran Working from me. that’s what individu- do, usually als they they going jail. because know are They run they soon as see pulling up.” attorney the ear The defense continued, “So if walking another individual had been by, you would have chased that individual as well?” Detective Smith responded, might “We have detained him purposes.” for I.D. On redirect, prosecutor Smith, “[I]f, asked you Detective when Caldwell, stopped had narcotics, Mr. he hadn’t thrown pro-
457 Caldwell, to he was Eric what would duced identification show answered, him?” “He would have happened to The detective . right released then.” been of degree possession third CDS was indicted for
Defendant (cocaine), 2C:35-10a(1); degree possession third of CDS N.J.S.A. property, 1000 of school with intent to within feet distribute 2C:35-7; degree possession of mari and fourth N.J.S.A. 2C:35-5 2C:35-5a(1) distribute, b(12); and juana to N.J.S.A. with intent marijuana degree with intent to distribute possession third and 2C:35-7. He moved property, 1000 feet of school N.J.S.A. within arrest, of his contend to seized at time suppress evidence subjected illegal ing he to an search and seizure. had been court, Tucker, 158, relying on v. 136 N.J. 642 A.2d The trial State (1994) Novembrino, v. and State appeal (1987), to The granted suppress. motion defendant’s ed, the trial court. On Appellate Division reversed and remand, possession of pled guilty to one CDS defendant count He to within a school zone. was sentenced with intent distribute year period of years imprisonment with a two-and-a-half four appealed, challenging the exees parole ineligibility. Defendant defen Appellate The Division affirmed siveness of sentence. dant’s sentence. certification, for 156 N.J. granted petition defendant’s
We (1998), reverse. now II.
The
Amendment of
United States Constitution
Fourth
protect
Jersey
Constitution
paragraph
Article
of the New
Supreme
Court
against
searches and seizures.
unreasonable
a seizure.
can constitute
held
even
brief detention
has
Ohio,
1, 16,
20 L.Ed.2d
Terry
392 U.S.
(1968).
officer
recognized
must be
that whenever
“It
away,
he
his freedom walk
an individual and restrains
accosts
Terry,
recognized,
the Court
person.” Id.
has ‘seized’that
time,
exception
requirement
that Fourth
the first
upon probable
Amendment seizures
individuals must
based
Terry
explained
cause. The Court
the intrusion
was so
*6
much less severe than that
involved in traditional arrests and
therefore,
concept
it
declined
broaden the
of
to include
arrests
Instead,
stop-and-frisk
such intrusions.
the Court considered the
falling
general
intrusion
within the
rubric of
conduct.
from
traditional
in
Ten-y
the
Fourth Amendment
two
departed
analysis
respects.
category
First, it defined a
of Fourth Amendment seizures so
special
substantially
general
requiring
less intrusive than
that
arrests
rule
cause to make
probable
balancing
Fourth Amendment seizures
a
reasonable could be
test.
replaced by
balancing
of
Second, the
this
application
test
led the Court to
this
approve
grounds
rigorous
defined less intrusive
on
narrowly
seizure
less
than probable
cause ...
York,
v. New
442
200, 209-210,
U.S.
99
[Dunaway
2248,
S.Ct.
60
2254-55,
(1979).]
824,
L.Ed.2d
833
Jersey
“long recognized
New
courts have
that a tempo
rary
probable
street detention based on less than
may
cause
be
Tucker, supra,
v.
State
167,
constitutional.”
136 N.J. at
642 A.2d
also,
Davis,
401;
see
v.
490, 507,
State
104 N.J.
intrusion on Fourth Amendment interests on than less cause is essential probable investigation. to effective criminal
459
L.Ed.2d 110, 118-19
[United
States
v.
Place,
(1983).]
U.S.
703-704,
S.Ct.
2637, 2642-43,
Royer, 460
recognized in Florida v.
Supreme Court
(1983),
506, 103
1319, 1329,
L.Ed.2d
S.Ct.
U.S.
determining
for ...
when seizure
litmus-paper
is
test
[no]
“there
Therefore,
investigative
in State
stop.”
of an
exceeds the bounds
Davis,
held that
supra,
N.J. at
we
stop
specific investigatory
of a
the reasonableness
determine
law,
reviewing court must “evaluate
Jersey
under New
encounter,
surrounding
poIice7citizen
totality of circumstances
against
law enforcement
balancing
interest
effective
the State’s
over
right to
free from unwarranted
individual’s
and/or
mathe
recognized
“[n]o
Ibid.
bearing police intrusions.”
We
totality of
circum
deciding
exists for
whether
matical formula
particularized
or
provided
with an articulable
the officer
stances
in criminal
question
was involved
suspicion
the individual
*7
505,
reviewing court must
A.2d
The
activity.” Id. at
517
if the
appraisal” of the facts and decide
a “sensitive
conduct
sup
in favor of
constitutional scales
tipped the
officer’s conduct
if
reviewing court must decide
pression
Ibid. The
of the evidence.
observations,
experience and
of the officer’s
in “view
the officer’s
from
drawn
knowledge,
together with rational inferences
taken
upon
individual’s
facts,”
a “limited intrusion
warrant
those
504,
Against
background, we consider
Unquestionably,
by
record.
duct as revealed
this
stop
male that
investigatory
black
attempt an
intended to
they suspect
whom
of Butler
and
they
in front
Street
observed
any attempt at an
Before
to be Curtis Stuart.
ed
building
down
occurred,
ran
and
turned and
into
stop
Caldwell
officers,
only after
stopping
hallway, pursued
any
run
more.”
“stop, police, ... don’t
Detective Smith shouted
into the
chased defendant
the officers
It
is clear
when
oc
defendant
“stop,” a seizure of
building, commanding him to
1870,
Mendenhall,
544, 554,
curred,
446 U.S.
see U.S. v.
(1980),
constituted
and that seizure
L.Ed.2d
something more than a
on
limited intrusion
defendant’s Fourth
rights.
Amendment
It also is evident that the
not
did
have
justify
degree
sufficient information to
of intrusion involved.
The fatal
position
flaw
the State’s
arises from the
degree
tip.
unwarranted
of reliance on the informant’s
Under the
totality of
“veracity”
circumstances test an informant’s
and “basis
Zutic,
v.
knowledge”
highly
factors. State
are two
relevant
Smith,
(1998)
N.J.
713 A
(quoting
.2d 1043
—
denied,
83, 93,
U.S.-,
119 S.Ct.
certif.
(1998)).
Not was the vague, informant’s information it also was inaccurate. The outstanding officers’ reliance on the warrant was misplaced. The trial court that issued the warrant on June very day. information about the next The vacated it the recordkeep- to was never communicated status the warrant result, the entity Department. As a warrant ing of the Sheriffs had incarcerated old Curtis been was over ten months and Stuart mistakenly days identified defen- five Detective Smith when as Stuart. dant apprehended testimony that he would have
Detective Smith’s Street, combined standing or near 86 Butler any black male vague and stale on a his on a ten month old warrant with reliance standing a multi-unit in front of tip that a male was black justify provided insufficient circumstances apartment complex, Tucker, Here, again what degree involved. as of intrusion more minimally stop escalated into seizure began as a intrusive by possessed limited information intrusive than the Tucker, 173, 642 N.J. at A.2d support. supra, 136 would sup Hence, must after the seizure the contraband discarded pressed. reasonably encouraged to act must be
Law enforcement officials
fear
hind
judgment without
professional
their
and
trust
despite
objectivity.
their
analysis may
their work
sight
eradicate
give
consistently
evaluating court
held that an
“must
We
as
knowledge
experience’
and
well
officer’s
weight
‘the
objectively
the facts
be drawn from
‘rational inferences
could
expertise.”
light
of the officer’s
reasonably viewed
(1997). Nevertheless,
Arthur,
1, 10-11,
this
from unreason
protection
to the
individuals
is committed
Court
Smith,
supra, 155 N.J.
searches and seizures.
able
Novembrino,
A
1033;
supra,
is remanded *9 462
HANDLER, J., concurring.
I am in accord with Court’s determination that the justify did not have degree sufficient information to of intru sion involved. See ante at 730 at 357. I Accordingly, A.2d concur disposition appeal agree in Court’s of this suppress defendant’s motion granted. to must I sepa write rately I holding because take issue with in the Court’s two First, respects. majority opinion obscures the distinction arrests, investigatory stops between and between the discrete knowledge levels of justify needed respective to those intrusions. I believe that defendant discarded the contraband nowhe seeks to suppress pursuant Therefore, an investigatory stop. the initial detention of justified defendant must been only have a reason suspicion able and articulable engaged defendant was activity; criminal it need supported by probable not been majority opinion cause. The is not on clear this issue. More importantly, emphasize I only that the this case acted on an tip informant’s that a standing “black man outside 86 Butler Street” was wanted on a warrant. That information was not sufficiently descriptive provide adequate basis for the inves tigatory stop.
I Preliminarily, I note that this was not a probable ease where required. cause was What must be clarified is that the detention defendant was an stop. person A is in a when, “by “seized” Fourth Amendment context means physical force or authority, a show of his freedom or “if, movement is restrained” and all view of of the circumstances incident, surrounding the person reasonable would have believed' that he not Mendenhall, free leave.” United States v. 446 544, 553-54, (1980). U.S. 64 L.Ed.2d That understanding of is provisions “seizure” central to the Jersey New Constitution prohibit unreasonable searches and 158, 164, Tucker, 136 N.J. See seizures. (1986). Davis, 490, 498,
(1994);
A.2d
State v.
*10
circumstances,
justified
conducting
in
police are
In certain
probable
than
knowledge
or
on a
less
seizures
searches
basis
arrest,
long
and seizures are
for
so
as those searches
cause
scope
and “do not rise
the level
correspondingly limited
468, 477, 706
180
Dickey,
v.
152 N.J.
A.2d
full arrests.” State
Ohio,
1, 20-22,
1868,
(1998);
1880-
Terry
88 S.Ct.
see
v.
392 U.S.
500,
Davis,
889,
(1968);
81,
supra,
officers must
objective
suspect
basis for
ing
particular
Cortez,
person stopped
activity.”
of criminal
418,
supra,
695,
629;
means that
the conditions of
Royer,
arrest.” Florida v.
491, 499,
1319, 1325,
U.S.
(1983);
S.Ct.
75 L.Ed.2d
York,
Dunaway
200, 216,
see
2248, 2258,
New
442 U.S.
(1979)
60 L.Ed.2d
(holding
interrogation
custodial
exceed
scope-
ed
investigation justifiable
suspicion).
reasonable
*11
When the
detaining
conduct of the
appropri
exceeds that
ate for a
investigatory stop,
reasonable
such that the “detention is
the
equivalent
arrest,”
functional
of an
the action must then be
probable
based on
Dickey, supra,
478,
cause.
152 N.J. at
706A.2d
cause,
In
probable
the absence of
investigation
“the
for
stop
the
may
which
was made
amount to an illegal
if
arrest
stop is more than ‘minimally intrusive.’”
Similarly,
Ibid.
if a
search
incidental to an
stop
protective
exceeds a
pat-
necessary
down or frisk
safety
officers,
for the
it must be
probable
Arthur,
based on
supra,
14-15,
cause. See
149 N.J. at
(holding
In this the record discloses that the officers arrived at 86 Butler Street in an unmarked sedan with the arresting intention of Curtis outstanding Stuart on an They warrant. looking were for a black suspect male at They that location. saw a black man. The black man ran from the front of building hallway, into a with pursuit, officers in yelling “stop, police, ... don’t run any- more.” complied. Defendant The officers then asked defendant officers, turned to face the walk towards them. As defendant suppress. away evidence he now seeks to One he tossed discard, was. which resembled and the detectives retrieved proved later crack cocaine. minimally majority opinion characterizes these events as “a
The
escalat[ing] into a seizure more intrusive than the
stop
intrusive
support.”
would
possessed
limited information
the officers
Tucker,
173,
461,
(citing
supra, 136 N.J. at
at
exceeds
(quoting Royer, supra,
The officers’ of defendant and stop order to in this ease police Davis, does not exceed the action in Tucker or which this interpreted investigatory Court according evaluated to a suspicion reasonable standard. The conduct at issue here is a far cry from that Terry found to exceed in Dickey, supra. bounds ibid.; Smith, See see also 155 N.J.
(1998) (holding Terry
standard
overly
exceeded
intrusive
person);
Zutic,
search of
defendant’s
State v.
155 N.J.
(1998) (same).
A.2d
Although
opinion suggests
Court’s
that
arrest,
such conduct was tantamount to an
it is clear that this
Indeed,
was not a de
arrest.
majority opinion
never
facto
probable
states that
required.
cause was
The fact
attempting
officers were
to execute an arrest warrant does not
stop
itself convert their
of defendant into an arrest. The officers
initially sought
to arrest
Stuar —not Eric
Curtis
Caldwell.
Hence,
warrant,
to execute the
investigation
some
would have
necessary
been
identity
establish the
of the detained individual.
Accordingly, when the officers ordered
“stop,”
Caldwell to
was to
identity;
ascertain his
subjected
he was
to an
Mendenhall,
detention.
supra,
553-54,
See
II majority right is testimony “Detective Smith’s that he would apprehended any black standing male at or near 86 Street, Butler combined with his reliance on a ten month old state vague warrant and on a tip that a black male standing in front apartment of a multi-unit complex, provided insufficient circum- *13 461, justify degree of intrusion involved.” Id. at stances to the in this case at But let us be clear: the circumstances A.2d adequate to form the provide officers with information did not the reasonable, necessary to objective particularized suspicion justify investigatory stop. the by may contribute to a reason descriptive tip
A
an informant
able,
to serve as
objective
particularized suspicion
sufficient
White, 496
investigatory stop.
Alabama v.
the basis for an
See
2416,
301,
(1990);
325, 330,
2412,
110 L.Ed.2d
U.S.
1924,
Adams,
147, 92
at
32 L.Ed.2d at
supra, 407
at
S. Ct.
U.S.
113,
617-18; Zutic,
Such a description minimal in this constitutional context is descriptive nothing, of and is void of underlying capable facts of corroboration generate sufficient to the level reliability of neces sary to insure a Thomas, reasonable stop. Cf. supra, 110 (holding tip A.2d 912 that “a man Ike, named plaid cap, jacket, dressed in a tan wearing gold glasses, frame in possession was illegal drugs of Shangri inside the Street,” La Bar at 265 Passaic by when corroborated officer justified investigatory stop); State v. Sharpless, N.J.Super. 440, 449, 715 (App.Div.) A.2d 333 (holding tip “that someone had seen a black wearing green jacket man a with a hood armed with a handgun in the area of Atkins justified Avenue and Adams Street” denied, stop), (1998). 157 N.J. 724A.2d 802 certif. Race alone is specific not a and articulable fact sufficient to reasonable, establish the particularized suspicion needed for an investigatory stop of a Adding gender defendant. to race does not augment description the of suspect so fairly that he could picked out intending officers investigate. addition, the “location” of the suspect underdescribed
these circumstances nothing adds reliability of tip or to necessary the facts particularized establish suspicion. The “black male” the officers were looking for was said to be standing outside a multi-unit dwelling in a predominantly black communi- Moreover, ty. an untold number of residents of urban Paterson the time the between by location passed have also could Butler Street arrival tip and their received may this conclusion reach later. One five minutes approximately Williams, Ricky the statement discarding unreliable even man, standing “couple he, was also black who testified In these arrived. when the officers Butler Street from 86 feet” provided circumstances, tip could not informant’s believing that Caldwell basis for a reasonable officers with 797, 803-04, 91 S.Ct. California, 401 U.S. Hill v. Stuart. Cf. (1971) of defen- (upholding arrest 1110-11, L.Ed. 2d 489-90 arrest to valid pursuant of attendant search and fruits dant mistake). as reasonable person another warrant for month old stale on a “ten officer relied fact that validity denigrates warrant,” A.2d at also ante current, had been if the warrant stop. But even *15 suspicion and articulable had a reasonable must still have officers hurdle, Without was Curtis Stuart. they seized that the man question individuals reign to seize and given free would be net This is too wide a of warrants. specifications scant who match are at stake. liberty individuals dignity and to cast when justified nor the warrant tip the informant’s that neither Given arrival has interference, upon the officer’s flight defendant’s “already existing reason may enhance bearing. Flight little Citarella, supra, 154 N.J. suspicion.” articulable able alone, on other unfounded flight of defendant But the A.2d 1096. activity, not meet does of criminal suspicion bases articulable Tucker, supra, 136 N.J. Terry standard. See 401. not did circumstances totality
The conclusion suspicion particularized or “an articulable officers with provide the activity,” in criminal was involved question individual that the 417, 101 L.Ed.2d at Cortez, S.Ct. supra, 449 atU.S. is unavoidable.
III my opinion, suppress granted the motion to must be because detention of upon Caldwell was not based suspicion guilty reasonable and articulable that Caldwell was of a reason, crime. For that I judgment concur of the Court. join Chief Justice PORITZ and Justice COLEMAN this opinion.
Chief Justice PORITZ and Justices HANDLER and COLEMAN, concur in result.
For reversal and remandment —Chief Justice PORITZ and HANDLER, POLLOCK, O’HERN, GARIBALDI, Justices STEIN and COLEMAN —7.
Opposed—none. PICCIANO,
IN THE MATTER OF R. JAMES AN ATTORNEY AT LAW. Argued March 1999 Decided June