*1 JERSEY, PLAINTIFF-APPELLANT, STATE OF NEW STOVALL, DEFENDANT-RESPONDENT. FELICIA January September Argued 2001 Decided 2002. *4 Woodruff, Prosecutor, Casey J. argued the for Assistant cause (Thomas Manaban, Prosecutor, V. appellant County Union attor- Prosecutor, Kaflowitz, J. ney; Mr. Steven Assistant Woodruff briefs). on the *5 argued Joseph respondent CAshley Charles the cause for Charles, attorneys). General, Bonpietro, Deputy Attorney
Robert E. argued the (John Attorney Jersey cause for amicus curiae of General New J. Farmer, Jr., General, Attorney attorney). Defender, Mehling, Deputy argued
Linda Assistant Public the (Peter for the cause amicus curiae Office of Public Defender A. Garcia, Defender, Acting attorney). Public opinion
The of the Court was delivered ZAZZALI, J. appeal requires legality
This the Court to of a determine police investigatory stop. Specifically, we decide must whether suspicion law enforcement officer had reasonable conclude suspect Airport transporting Newark International nar- was Appellate cotics. The held Division the officer was not conclusion, justified in that suppres- and affirmed the trial court’s drugs sion of seized as a result of defendant’s detention and subsequent disagree. Upon arrest. We review the circumstances, we conclude that officer had reasonable transporting that defendant was narcotics and therefore justified detaining was defendant.
I (Port Jersey Authority Port of New The York New Author- ity) charged operation Air- is with of Newark International port. Authority employs The Port law numerous enforcement including is officers Detective Charles Benoit. Detective Benoit primarily narcotics interdiction Task Force Officer who works at incident, Airport. Newark At the time of this Benoit “on Authority Drug loan” from the Port to the United States Enforce- (DEA). Agency ment May page
On Detective Benoit received an electronic Agent Agent Angeles. from DEA Scott Cahill in Los Cahill *6 agent that an American Airlines ticket informed Detective Benoit Airport had that two Angeles International informed Cahill Los drug Flight American Airlines potential couriers were aboard According agent, Angeles to the ticket two from to Newark. Los using “questiona- suspects checked “fraudulent” or female had Agent also informed Detective Benoit ble” identification. Cahill traveling name suspects the under the “Roberta one of although suspects’ He further stated that the tickets Chambers.” agency, from the purchased had at the same time the same been separately appear traveling two were and did not to know women Agent suspects “possibly the as each other. Cahill described Hispanic.” were in them were Both women mid-twenties and type “crew-type wearing suit[s].” “business Both carried black bags pulled by bags,” wheels are or tote with handle. One defendant, ham, red, woman, had wore and later identified as short wearing had a return ticket 10. The other woman was for June plaid longer and had hair. skirt
Agent pur- that the tickets Cahill told Detective Benoit were through chased International Mirmar Travel. Detective Benoit previously drug that he had arrested traffickers with testified agency. purchased tickets from that in the he had past Detective Benoit also testified that received [njumerous times, “of nature ... information this dozens Thus, information, receipt on Detective Benoit times.” Kane, partner, met him notified his Detective Jim at their Airport. flight’s office in Newark The two officers confirmed officer, time, Spanish-speaking arrival obtained the services of Authority Hering K-9 Thomas to notified Port Police Officer by.” proceeded “stand Detectives Benoit and Kane then to the Flight Airlines for 114 to American terminal and waited arrive. disembarked, passengers As Detective Benoit noticed two wom- provided by Agent matching general descriptions en Cahill. times, emerged Although jetway from the at different women small, wheels, pulling bags on and appeared both were black tote age age” approximately to be “the same or the same as the women Benoit, Agent According drug described Cahill. to Detective prefer carry-on luggage luggage couriers because “check-in” subject might handling by be others and because K-9 units are regularly posted baggage handling Although area. match- ing Agent general descriptions, Cahill’s the women were African- American, Hispanic.1 not terminal, proceeded women
As the to leave the Benoit Detective pursued suspect. followed Kane defendant and Detective the other defendant, approached Detective Benoit as a identified himself officer, speak permission and “asked for her.” with speak Defendant asked Benoit where he would her like to with replied they and he that where were was Benoit fine. Detective flight originated then asked defendant where her and defendant *7 responded Angeles.” request, produced “Los At his defendant bearing her airline ticket the name “Roberta Detec- Chambers.” recognized by tive the provided Benoit name as one of the names Agent Cahill. Benoit also noticed that had defendant a “bulk” Benoit, According suppliers ticket. to Detective narcotics often tickets, purchase such which are available at a rate discounted they purchased because are then “bulk.” Those tickets are to in an money distributed individual couriers effort to save and avoid detection. ticket, examining
After defendant’s Detective Benoit returned it presented to her asked for with and identification. Defendant him bearing California state identification card the name “Roberta an Angeles, Chambers” and listed address on Main Los Street Benoit California. Detective testified that he found it “unusual” that a state identification card was defendant’s sole form of carry people identification because “most more substantial identifi- cation, specifically a driver’s the license.” Benoit also found that, The identification of the as was an identification. suspects Hispanic only alleged profiling, i.e., Defendant has not that racial a law action taken any by arguing race, here, enforcement officer that is based on occurred impermissibly given Agent that does she not match Cahill because she is only description by African-American. expired. He re- suspicious the card had
identification because local and defendant for her destination. turned the card asked traveling was to New Defendant told Detective Benoit she boyfriend. then if the to her Detective Benoit asked York visit her, carrying belonged had luggage was to whether she she bags, bags contained. packed the and whether she knew what affirmatively questions. Detec- responded Defendant all three defendant, during his with tive Benoit testified that conversation “noticeabl[y]” nervous hand defendant was and her shook. minutes, why he After defendant asked Detective Benoit several questions. asking was her Detective Benoit informed defendant that he member of a narcotics team and that he was a interdiction drugs. suspected carrying requested per- He then that she right her and defendant of her mission to search suitcase informed refused told Benoit to refuse consent. Defendant Detective response, her that she to leave. In Detective Benoit asked wanted minute,” please if [ ] she “could stand one but defendant leave. then said reiterated that she wanted to Detective Benoit just “this will take few moments.” Defendant did not react. defendant, point, At Detective Benoit was on while focused speaking suspect feet Officer Kane was with other several unit, away. for arrived Detective Benoit called the K-9 which shortly placed luggage The officers on the thereafter. defendant’s “alerted,” ground dog presence indicating of narcotics. Consequently, custody the officers took defendant into and advised bag. her their intention to seek warrant search her *8 her was Defendant then admitted that real name Felicia Stovall bag. bag, searching and a her the consented to search of Before County contacted Prosecutor who informed officers the Union change them could still her mind. The officers so that defendant defendant, stating “you have to allow into the informed don’t us bag.” gave permission bag nonetheless to search her Defendant signed luggage and a consent form. A of search defendant’s yielded marijuana approximately forty- totaling bundles three of pounds. seven
355 subsequently possession Defendant for of indicted a con substance, 2C:35-10a(3), dangerous contrary trolled to N.J.S.A. possession pounds twenty-five of more or of a controlled distribute, dangerous contrary substance with intent to to N.J.S.A. 2C:35-5a(1) 2C:35-5b(10)(a). and N.J.S.A. Defendant moved to suppress the seized evidence. Defendant neither testified nor presented suppression hearing, witnesses at the and did not file an support affidavit in motion. trial The court nevertheless granted appealed. defendant’s unpub motion the State In an per opinion, Appellate lished curiam Division affirmed. We granted Stovall, appeal, 596, v. leave State 165 N.J. (2000), 214 and now reverse.
II matter, As a threshold we consider whether Benoit meaning “seized” defendant within the of the Fourth Amendment paragraph the United States Constitution and Article 7 of the Jersey New protect person’s Constitution. Both constitutions right to be free from unreasonable searches and seizures. U.S. Const, Const, ¶ IV; I, In determining amend. N.J. art. 7. whether occurred, seizure court must consider whether “in of all of view incident, surrounding person circumstances a reasonable [or would have believed that he not she] was free to leave.” Mendenhall, 544, 554, v. United States 100 S.Ct. (1980); 64 L.Ed.2d 509 see v. Delgado, also INS 466 210, 216-17, 1758, 1763, (1984) U.S. L.Ed.2d S.Ct. (stating no that detention occurs under Fourth Amendment unless person circumstances of encounter demonstrate leave); Tucker, would not feel free to 136 N.J. (1994) (noting 642 A. persons 2d 401 that whether are seized “depends objective analysis an on of all the circumstances of their Davis, police); with encounter” State N.J. (1986) (stating
A.2d court must consider detention). surrounding circumstances *9 356 Terry v. constitute seizure.
Even a brief detention can
Ohio,
1877,
889,
16,
1868,
88 S.Ct.
1,
20 L.Ed.2d
903
392 U.S.
(1968). However,
police
violate the fourth amend
do not
“[t]he
by ‘merely approaching
on the street or
ment
an individual
willing
by asking
[or
if he
is
public place,
her]
she]
him [or
another
”
Davis, supra, 104 N.J. at
497,
questions. . . .’
to answer some
497,
491,
Royer,
Florida v.
103
U.S.
(quoting
460
Ill A Appellate agree the trial court and the Division We with The trial court stated: that Detective Benoit “seized” defendant. [defendant] Benoit. Howev- At first this was an encounter between and Detective bag that to leave and her could not be [defendant] once said she wanted er, it a would not have felt free to leave because he said searched became She stop. just long of how that it was, she had to wait. It’s not a period question bag against and her was seized her will. occurred, agreed Appellate Division with conclusion. The after disembarked Detective Benoit followed defendant she stop initial plane approached and her. note that his from the We Green, questioning permissible. and of defendant However, (App.Div.2001). he then N.J.Super. identification, plane informed her examined defendant’s ticket and suspected a interdiction officer and that he that he was narcotics trafficking, requested consent to drug her defendant’s him luggage. and told that she search her Defendant refused Benoit then “asked her could she wanted to leave. Detective repeated that she want- please by one minute.” Defendant stand leave, just a few moments.” and he told her “this will take ed to circumstances, objectively person light an of these LaFave, 4 free to leave. W.R. Search would not have felt See (3d 1996) (“[A]n 9.3(a), encounter be § at 102-03 ed. Seizure a reason engages if the officer conduct which comes a seizure if threatening or offensive even [person] would view as able private citizen. This would include such performed another pursuing person attempted to terminate the tactics as who has interrogate person by departing, by] continuing to [or contact cooperate. clearly expressed a desire not to who has . . .”) (footnotes omitted). Although Benoit framed his first state Detective command, request rather than a the fact that defendant ment as her to do so expressed her desire to leave and he did not allow Moreover, that defendant was not free to leave. demonstrates *11 just that “this will take a few mo Detective Benoit’s statement ments,” implied permitted he not have defendant to would Accordingly, that Detective Benoit’s detention of leave. we find brief, defendant, a seizure. however constituted
B issue, question, Detec The more critical and closer is whether constitutionally justified. of was tive Benoit’s “seizure” defendant Appellate Both the trial court and the Division held that Detective Airport at Newark International Benoit’s detention of defendant unconstitutional, concluding impermissibly that he relied on a disagree. Nothing in “drug profile.” courier We the record “drug profile.” indicates that Detective Benoit relied on a courier had, however, Even if he the characteristics contained in such a profile permissible are factors to be considered in the of Sokolow, analysis suspicion. the circumstances of reasonable See 10,109 12; Green, 1587,104 supra, at at L. Ed.2d at S.Ct. Patterson, 186; supra, N.J.Super. 346 at 270 (Law o.b., 550, 557-60, Div.1993), N.J.Super. A 637 .2d593 affd N.J.Super. (App.Div.1994). 637A.2d 599 “drug profile” objective A “compilation[ ] courier is a factors alone, may conjunction which be innocent with each other or but facts, suspect engaging in lead officers to believe that the is other Annotation, Winbush, Kimberly Propriety drug trafficking.” J. Solely on Stop by Law Based and Search Officers Enforcement LaFave, 1,11 (1996); Drug Profile, 37 A.L.R. 5th see also Courier 9.4(e), (describing “drug § DEA supra, at 166 federal courier detaining arresting suspected drug profiles” use in and their utility of airports). Many at courts have addressed the traffickers suspicion drug profiles in the context of the reasonable courier actually analysis. general, consider those factors most courts they collectively by suspect to determine if demon- exhibited accepting any or suspicion, without set combina- strate reasonable demonstrating suspicion per se. as reasonable tion of factors 9.4(e), LaFave, Although § it not addressed at 174. has drug profiles alone can specific question whether courier suspicion, provide for reasonable the United States Su- a basis profile in the preme approved the use of characteristics Court has analysis suspicion. totality of circumstances of reasonable See Sokolow, 104 L.Ed.2d at supra, 490 U.S. S.Ct. suspicion (holding officer’s reasonable articulable that because drug profile included in courier may comprised of factors also be evidentiary factors’] from [those that “does not somehow detract agent”). significance as seen a trained similarly. held have addressed this issue have State courts that (Minn.1998) Martinson, See, e.g., State v. 581 N.W.2d (holding police may rely that can be labeled on characteristics determining drag profile courier factors whether Bennett, exists); Pa.Super. Commonwealth *12 (1992) the (holding that match between so- “[a] 284 by a defendant does profile called and characteristics exhibited not, itself, suspicion sufficient to in create a reasonable and of Hanson, justify investigatory stop” (quoting United States an (5th Cir.1986))); Casey, N.C.App. 59 State v. 801 F.2d cf. (1982) (approving drag of courier use 296 S.E. 2d Jersey stops). Similarly, investigatory New profile as basis for drug in couri recognized that characteristics included courts have reason- legitimate to be considered the profiles are factors er Patterson, analysis. N.J.Super. suspicion See able (“[Provided suspicions A that which are directed 637 .2d 593 arise, police may develop rely upon specific individuals ”). ‘profile.’ a so-called merely way “drug profile”
A
is
a shorthand
of
courier
may
referring
group
indicate that a
to a
of characteristics
However,
drug
suspect
fact that a
person is a
courier.
the mere
profile
justify
stop.
a
displays
characteristics does not
See State
J.G.,
(App.Div.1999)
N.J.Super.
ex. rel.
tion] could have determined that Officer Benoit colleagues profiling exclusively ... his relied on data almost suspicion. technique on and not reasonable individualized This is However, permissible.” not Detective Benoit never testified drug profile formulating he relied on a courier his Instead, testimony defendant. Benoit’s reveals that he relied on individual, objective actually characteristics defen- exhibited dant. question drug profiling.
The is not one of courier The task individual, objective before us is to determine whether the charac- *13 Benoit, aggregate, in the when consid- teristics cited Detective light independent Benoit’s observations and ered of Detective experience, suspicion. law enforcement constitute reasonable
C
exists,
determining
a
whether reasonable
totality
must
“the
of the circumstances —the whole
court
consider
Cortez,
695, 66
picture.”
supra, 449
at
101 S.Ct. at
U.S.
Davis,
629;
supra,
Detective Benoit testified that
Cahill
suspected drug
were aboard American
him that two
traffickers
An airline
Flight
Angeles
Los
to Newark.
Airlines
from
Agent
acknowledge that that
agent
ticket
had alerted
Cahill. We
finding
of reason
standing
support
alone does not
information
However,
tip
“totality
in the
suspicion.
we include the
able
*14
analysis.
determining
reliability
tip, a
In
the
of a
circumstances”
“veracity,” “reliability,” and
court must consider an informant’s
328-29,
White,
325,
knowledge.”
of
Alabama v.
“basis
301,
(1990); Caldwell,
2412, 2415,110
supra,
110 S.Ct.
L.Ed.2d
308
352;
Smith,
83, 93,
460,
A.2d
v.
155 N.J.
713
158 N.J.
730
State
denied,
1033,
576,
1033,
142
A
525
119 S.Ct.
L.Ed.2d
.2d
cert.
U.S.
(1998).
citizen,
Jersey
ordinary
an
New
an informant is
When
veracity
the
has
and
courts assume that
informant
sufficient
Davis,
require
reliability.
supra, 104
no further demonstration of
506,
knowledge” prong,
N.J. at
The information
to Detective Benoit was not a
Nonetheless,
“tip” in the traditional sense of the word.
both a
layperson
agent
suspicion,
a DEA
had a
and it
not
suspicions
Benoit to factor the
that
unreasonable for Detective
him into his own formulation of reasonable
were communicated to
by
imparted to Detective Benoit
suspicion. The information
building
leading
agent
Agent
was a
block
to
ticket
Cahill
activity
police
A
conclusion that criminal
was afoot.
Benoit’s
Davis,
duty
investigate suspicious behavior. See
officer has the
to
ignored
the sense
reasonable suspicion
in
than that
but
cause,
different
or content
establish
required
probable
quantity
can
from
that is less
also in the sense that
arise
reasonable suspicion
information
show
cause.
reliable than that
probable
required
(emphasis
Detective Benoit summoned
example,
formulating
suspicions
in
his
about defendant. For
traveling
flight
depart
Benoit
that defendant was
on a
noted
Sokolow,
Angeles
in
In
a DEA
ed from Los
and arrived Newark.
that,
agent
experience,
original
testified
his
the defendant’s
destination, Miami,
frequent
was a
destination for narcotics traf
8;
Supra,
fickers.
Importantly, Detective Benoit also observed that both defendant
suspect
purchased
the other
had tickets that were
at the same
they
separately
agency,
time from the
chose to travel
same
but
appeared
not to know each other.
In United States v.
(6th
Cir.),
denied,
946,113
Ushery, 968 F.2d
cert.
(1992),
Additionally, Agent descrip- Detective Benoit confirmed Cahill’s tion of defendant’s ticket. The ticket was characterized as a purchased specific agency ticket from a travel “bulk” California. Benoit, According “just “bulk” tickets raise because [,] experience watching people on ... based on traffic based narcotics, they’re purchased like that a He testified lot of times.” suppliers prefer buy large of tickets at that narcotics number money once to save and to avoid detection. The tickets are then Also, distributed to individual couriers. defendant’s ticket was agency frequently purchased from an known to Benoit as one used by narcotics traffickers. testified, recognize, abiding as Benoit that “law citizens”
We However, purchase reflects that such tickets as well. record may partic- the use of such tickets on occasion be indicative of ipation drug trafficking in the business. Detective Benoit exam- and, in ined defendant’s ticket combination with all of the other factors, suspicious. were Al- concluded that circumstances conclusion, though give we we do not blind deference to *17 light of Detective weight, particularly appropriate accord it experience. extensive Benoit’s described, suspects both
Additionally, just Agent Cahill had as small, black, type luggage traveling with the same were —a suspects carried bag and a handle. Both “crew-type” with wheels plane. Detective Benoit observed defen- luggage their onto the bag. it is not Benoit admitted that dant disembark with such carry-on luggage, “but based on a unusual for travelers to use your ... everything suspicions it it makes me raises carry drug often the same suspicious.” experience, In his couriers carried, carry bags luggage and often their type of that defendant bag. Specifically, to the he plane onto the to limit outside access “especially” prevalent among drug carry-on bags are testified that aircraft, belly “they it in the traffickers because don’t want They they anybody ramp on the to have access to it. don’t want checking bags.” dogs at the tarmac are afraid of that defendant’s identification Detective Benoit also confirmed bearing expired card the name “Rober- was an state identification Agent had informed Detective Benoit that ta Chambers.” Cahill using agent alerted him that defendant checked ticket recounting Benoit’s notes his conver- “fraudulent identification.” Agent “two wom- sation with Cahill indicate Cahill described traveling police report en with false ID.” Benoit’s describes “questionable.” Detective Benoit later confirmed identification as bearing the name Chambers” was indeed that the card “Roberta as Felicia fraudulent when defendant identified herself Stovall. after the Because Benoit’s corroboration of fraud occurred however, commenced, we not consider that fact in do detention determining prior existed to the whether reasonable detention. relevant to
The issue of the identification card is nonetheless First, inquiry agent the ticket our for two reasons. both suspicious. Agent found defendant’s identification to be Cahill “fraudulent,” testified, they it as Benoit Whether characterized as “false,” notes, “questionable,” as Benoit wrote in his or as indicat- police report, consequence. in Benoit’s of little That the ed is *18 agent Agent explain ticket did not the bases for their Cahill However, agent suspicions is true. a ticket who examines identifi- regular suspi- cation on a basis found defendant’s identification concern, Agent conveyed agent’s DEA cious. Cahill which he shared, effect, questionable suspi- that the identification was —in Thus, suspicion Benoit cious. had some based on that communica- regarding tion defendant’s identification even before he detained her. consideration,
Quite apart from that we now turn to Benoit’s independent Agent evaluation. addition Cahill’s character- card, izations identification Benoit found two facts unusual. identification, Although people carry spe- most “more substantial license,” cifically particularly people traveling a driver’s those country stay, presented across for an extended defendant an only impor- identification card as her form of identification. More tant, expired had an card and listed address on “Main Street” Angeles. Accordingly, in Los Detective Benoit found defendant’s suspicious identification card based on the information he received Agent from Cahill and his own examination of the card.
During
defendant,
his encounter with
Detective Benoit
appeared
noticed that defendant
nervous and that her hand shook.
Concededly,
questioned
some individuals become nervous when
Nonetheless,
may
officer.
the fact that such reactions
be
commonplace
from the
rule that
does not detract
well-established
suspect’s
plays
determining
nervousness
a role
whether
See,
Citarella,
suspicion
e.g.,
supra,
reasonable
exists.
2000) among factors (finding defendant’s nervousness Wardlow, Illinois v. suspicion); see also reasonable (2000) (“nervous, 145 L.Ed.2d 120 S.Ct. determining pertinent factor evasive behavior is (4th Cotton, v. 261 F.3d suspicion”); United States Cir.2001) ap- nervousness when (finding defendant’s visible questioned providing reasonable proached by police and factor (11th Smith, v. 201 F.3d suspicion); United States Cir.2000) waiting in appearance while (finding defendant’s nervous suspicion); providing reasonable United States bus terminal factor (7th Cir.1998) Maher, (finding defendant’s 145 F.3d providing approached patrol car factor nervousness as he overt Porter, suspicion); States v. police with reasonable United (8th Cir.1997) (finding when defendant’s nervousness F.3d *19 agent rea- bags providing factor DEA with questioned about his Here, [he] that “all the while suspicion). Benoit testified sonable talking and asked her for identifica- [defendant] [he] to while fact, shook,” “very In appeared and nervous.” tion her hand she that, result, “suspicions credibly as a his Detective Benoit testified spoke heightened after to [he] [defendant].” were out, may be, points that of those It the dissent no one as may suspicion. It be that alone constitutes reasonable also factors factors, carry-on as the bulk ticket and the some of those such luggage, interpreted being as consistent with both inno can be neutral, occurring every guilt, simply are cence and and that some susceptible day airports. if all of the factors were at Even “purely explanations, group of innocent circumstances innocent” suspicion. support finding aggregate in the can of reasonable This Court has stated that evaluating giving to officer’s of criminal [i]n activity, the facts rise suspicion give weight knowledge as well as to to ‘the officer’s courts are experience’ objectively from the facts and reasonably ‘rational inferences that could be drawn light in The that innocent connota
viewed of the officer’s expertise.’ purely fact mean that an cannot can be ascribed to a actions does not tions person’s officer finding long ‘a on those actions as as reasonable base a reasonable suspicion guilt.’ the actions are consistent with would find person
369 (quoting at 712 [Citarella, 279-80, Arthur, N.J. A.2d 1096 supra, supra, 808) (citations omitted) added).] (emphasis N.J. at 10-11, A.2d “ Arthur, Similarly, in ‘[i]t we noted must be rare indeed that only guilt incapa an officer observed behavior consistent with ” Arthur, interpretation.’ ble of innocent supra, 149 N.J. at (1st (quoting Viegas, 691 A.2d808 United States v. 639 F.2d Cir.), denied, cert. 68 L.Ed.2d S.Ct. (1981)). police may rely
Citarella and Arthur make clear that the
on
guilt
characteristics
with both
in
consistent
innocence and
formu
lating
suspicion.
Importantly,
reasonable
neither decision re
quires
present corroborating
only
that the State
facts consistent
noted,
guilt.
with
As
such behavior is “rare indeed.” Ibid. Both
circumstances,
totality
decisions focused
on whether
of the
including
guilt,
factors consistent with both innocence and
demon
Citarella,
suspicion
justify
stop.
supra,
strated reasonable
1096; Arthur,
11-12,
his when you suspicious.” makes
IV
demanding
than
standard
suspicion is ‘a less
“Reasonable
considerably
than
showing
less
requires
and
probable cause
”
Valentine, 232
States v.
preponderance of the evidence.’ United
(3d
denied,
Cir.2000),
S.Ct.
cert.
F.3d
(2001)
Wardlow,
at
(quoting
supra, 528 U.S.
1748,
We take the facts as quilt together factors into a packaged. patch can either those One *21 suspicion parse of reasonable or those same factors to unravel the view, guilt. evidence of The better based on this evidence and the sense, template of common is that Detective Benoit had more than responsibility eye a “hunch.” He had the not to turn a blind saw; right what he heard and he had the concomitant to act as he circumstances, totality did. Based on the we are satisfied suspicion Detective Benoit had reasonable to detain defen- dant.
Reversed.
COLEMAN, J., concurring
part
dissenting
part.
agree
I
majority
with the
that Detective Benoit’s detention of
seizure. Ante defendant
constituted
I.
starting point
evaluating
The
police
for
the reasonableness of
conduct is the Fourth Amendment of the United States Constitu-
I, paragraph
Jersey
tion and Article
7 of the New
Constitution.
provisions protect
against
Those
citizens
unreasonable
probable
on
by requiring warrants issued
and seizures
searches
*22
one of the “few
falls within
the search or seizure
cause unless
to the
exceptions”
war
and well-delineated
specifically established
218, 219,
Bustamante, 412 U.S.
v.
requirement.
rant
Schneckloth
(1973);
854,
Maryland,
v.
2041, 2043,
State
L.Ed.2d
858
36
93 S.Ct.
Citarella,
1220;
482,
v.
154 N.J.
A.2d
State
at
771
supra, 167 N.J.
Hill,
169,173-74,
(1998);
N.J.
278,
v.
115
272,
Under Fourth
stop generally can be
conducting
investigatory
an
police action
“
(or seize) against the
by ‘balancing the need to search
assessed
”
(or seizure)
Terry, supra, 392
entails.’
invasion which the search
1879,
v.
21,
(quoting
at 905
Camara
at
20 L.Ed.2d
at
88 S.Ct.
U.S.
1727,
534-35, 536-37,
Court,
523,
87 S.Ct.
Municipal
387 U.S.
Arthur,
1, 7-8,
930,
(1967));
149 N.J.
1735,18
State v.
L.Ed.2d
940
(1997).
balancing
are to
in that
test
The facts used
A.
*23
concur,
reluctance,
I
with some
in the Court’s decision to
drag
profile
deciding
consider the
courier
information when
controlling investigatory stops
whether the standard
has been
approval
drug
met. The Court’s
of consideration of the
courier
profile information
evaluating
as a factor to be considered when
the
of the circumstances to determine whether the articu
met,
not,
particularized suspicion
lable and
standard has been
does
however,
obligation
alter the Court’s
to make sure that an investi
gatory stop
appropriate legal
is
on
based
the
standard. State v.
Davis,
Patterson,
859;
104
v.
N.J.
State
(Law
559-60,
Div.1993),
o.b.,
N.J.Super.
270
374 (Law Div.1999) (holding that 402, 408, A.2d 469 739 N.J.Super. another was of street from one side moving vehicle one’s reasonable level of the did not rise to conduct that innocuous and ask for his defendant suspicion needed to seize articulable J.G., credentials); N.J.Super. 726 320 ex rel. driving State (finding reasonable or articulable no (App.Div.1999) A.2d 948 to detain the travelers “hunch suspicion because officer’s upon specific overt profile and not drug courier based on a traveling companion). adult juvenile and his conduct” of the that a defendant fits that the fact has held The Sixth Circuit in this calculus. a relevant factor drug profile is not courier (6th Cir.1977), Lewis, cert. F.2d v. United States States, nom., v. United Van Lewis denied sub (1978). Rather, consider a court should L.Ed.2d 754 S.Ct. in the by that are included the defendant the facts exhibited not, collectively “what do are and ask profile and those that Berry, F.2d also United States facts show?” Ibid. See Cir.1982) (5th exhibited defendant (noting characteristic necessarily drug profile does not part of a courier that also is stop, formulating suspicion for but preclude its use weight greater or lesser assign no characteristic “that we will on, present or happens to be merely the characteristic because profile from, drug courier profile”). But whenever the absent requisite suspicion, formulating the level of used in information is trap Justice Marshall taken to avoid the great care must be inconsistency recognized potential for eloquently He described. Buenaventurar-Ariza, S.Ct. (6th Cir.1982) 1521, [United [100] United States v. United States v. United States United States profile’s S.Ct. 1581,104 [75] L.Ed.2d States v. 1870, 1882, “chameleon-like (suspect v. v. L.Ed.2d Craemer, Sokolow, McCaleb, Sokolow, [945] Sullivan, [64] (1983), [615] was first 1]. L.Ed.2d 555 F.2d Compare, [831] [808] 552 F.2d F.2d [625] way with United F.2d F.2d F.2d [497] of 29, 594, deplane), adapting 1413, 1418 e.g., (1980) (last to 1366, 717, 9, [31] [595] [12] United States v. (2d [720] [1370] (6th Cir.1977) (4th Cir.1980) to cert. (6th Cir.1980) (9th any particular (9th States v. denied, Mendenhall, Cir.1977) deplane), Cir.1987), Cir.), (deplaned Moore, [460] (round-trip vacated, (one-way with United States (nonstop rev’d, set U.S. [446] [675] *24 of [490] 1068, from [831] observations.” U.S. with tickets), F.2d tickets), flight), U.S. F.2d [103] 544, 564, middle); 802, 1, 109 S.Ct. with [1413] with [803] v.
375
nervously),
(1987)
(1982),
[595]
suitcases);
alone),
United
(5th Cir.1981)
(5th Cir.) (acted too
companion); (1977).
166,
L.Ed.2d at 14 (Marshall, J., dissenting).]
[United States v. Sokolow,
(6th Cir.1977)
[62]
(case
unth
L.Ed.2d
with
cert. denied sub
United States v.
United States v.
below)
[United
(gym
[108]
]
(no
bag),
(changed
calmly),
(1979),
States v.
States
luggage),
cert.
with
nom., Brooks United
cert.
Fry,
v.]
planes);
Smith,
denied,
Andrews,
United States v.
Sullivan,
denied
with United States v.
[622]
[490]
F.2d 1218,1219
[574]
[455]
[United
[434]
at 13-14,
U.S.
[600]
v.
F.2d
U.S.
[625
U.S.
F.2d 563,
States
991,
882,
F.2d
Himmelwright,
902,
States,
[102]
[883]
(5th Cir.1980)
v.] Craemer,
9,
[98]
Sanford,
S.Ct.
[109]
[566]
[12]
(6th
S.Ct.
[444]
S.Ct. (4th Cir.1980)]
(6th
1618,
Cir.1978)
298,
U.S.
[658]
551 F.2d
Cir.1979)
L.Ed.2d
[71]
[54]
(traveling
[555
878,
F. 2d
1588-89,
L.Ed.2d
F.2d
(traveling
[100]
991,
342,
(acted
S.Ct.
(new
with
594,
[104]
[992]
[189]
[852]
[343]
I am
skeptical
also
of law
upon
enforcement officials’reliance
suspected drug
city
origin
courier’s
or
destination
establish
ing
suspicion
investigatory
to conduct an
stop because
yielded
that factor also has
inconsistent results.
If and when
used,
given very
it should
weight,
any,
be
little
if
in evaluating
whether reasonable
suspi
exists. Travelers have raised
cions based on such a wide host of “source cities” that this factor
implicate virtually any
could
traveling
any
individual
to or from
city. E.g.,
438, 441,
American
Georgia,
Reid v.
448 U.S.
100 S.Ct.
2752, 2754,
(1980)
890,
(referring
65 L.Ed. 2d
894
appellate
court’s observation that Fort
principal place
Lauderdale is a
cocaine);
$22,474.00
origin for
United States v.
Currency,
in U.S.
1212,
(9th Cir.2001)
246 F.3d
(recognizing
1216
drug
Phoenix as
city);
O’Neal,
239,
(8th Cir.),
source
United
v.
States
17 F.3d
denied,
(1994)
cert.
513 U.S.
115 S.Ct.
113 S.Ct. 121 L.Ed.2d (recognizing San Francisco drug city); Forero-Rincon, as source United States v. 626 F.2d (2d Cir.1980) (recognizing drug city); Miami as source State, (Del.2000) Johnson 765 A. 2d (recognizing New drug city). Green, York as source N.J.Super. (App.Div.2001) (recognizing drug Jamaica as source country). persons “[T]housands of innocent travel from ‘source every day nearly every major city cities’ ... country in the may be city.” characterized as a source or distribution United
376 16, 1590, Sokolow, 104 supra, 490 at 109 S.Ct. at v. U.S. States (Marshall, J., dissenting). at L.Ed.2d 16 profile inauspicious drug in the inconsistencies courier Given Sokolow, characteristics, its United States v. and “chameleon-like” 1588, 13, 14 104 at supra, 490 at 109 S.Ct. at L.Ed.2d U.S. (Marshall, J., engaged investiga dissenting), I in an believe courts stop assign weight shifting drug tory analysis should little majority any profile a or substan courier characteristics. Where characteristic, people specific tial share a that charac number of probative particularized in such teristic is of little or no value a analysis. v. context-specific and States Montero-Camar United (9th nom., 1122, 1131 Cir.), sub go, 208 F.3d cert. denied Sanchez States, 889, 211, v. 531 121 S.Ct. 148 L.Ed.2d Guillen United U.S. (2000). frequently traits are as consistent with inno 148 Such guilt. they cence as are with Citarella, supra,
This is a like State v. 154 N.J. at not case recognized in 712 A.2d which Detective Benoit defendant prior specific earlier from encounters or relied on facts from Reid, supra, Unlike the facts encounters with defendant. 439, 441,100 2753-54, at at L.Ed.2d U.S. S.Ct. and State Citarella, A.2d did supra, v. 154 N.J. defendant attempt not once Benoit as a to flee Detective identified himself Arthur, Also, officer. unlike State v. 149 N.J. at drug Benoit not observe a transaction Detective did Rather, unverified, furtive or movements. this is a case which unreasonable, non-specific, generalized and characteristics were significant given weight stop as the basis to defendant. used 275, 280-81, Kuhn, N.J.Super. A.2d 162 State Cf. (App.Div.1986) (noting some have circumstances which courts sufficiently stop, found articulable basis conduct brief violations, including weapons, traffic observations of narcotics or money packages, objects changing suspects, or hands between crime, clothing reports nearby physical appearance recent of or crime, suggestive nearby potential likely presence or victims, tips drug crime that a or crime transaction is about to *26 occur).
B. foregoing legal on the principles, Based I ask what must collec answer, tively My majority, the do facts show? unlike the is that circumstances, objective under the the there was no any activity. that manifestation defendant was involved criminal submit, majority, wrong by affording The I has the reached result greater weight reliability than the tip is warranted to that spurred suggests Detective Benoit into action. The record that only ticketing agent provided initial the non-criminal information Agent majority agree to Cahill. I with the the that information alone, representative from the airline standing received not “does support finding Ante suspicion.” of reasonable at 755. origin flight,
The
of defendant’s
the fact that
ticket
her
had been
purchased
by
couriers,
agency
drug
from an
often
the
used
that
couriers,
type frequently
by drug
ticket
of a
was
used
crew-type
by
bag
pulled
defendant’s use of a
with
is
wheels that
handle,
entirely
are facts that are
consistent with innocent behav-
testimony
ior.
acknowledged
Detective Benoit
his
that bulk
tickets,
defendant,
Ante
illegal.
as the
such
ticket used
are not
Although
experience
Detective Benoit however, identification; using or “fake” dant was “fraudulent” was report, he recorded that identification his official Indeed, only the state- “questionable.” fact on face of possibly interpreted as card that could be issued identification had “questionable” expiration that the date “fraudulent” or was subsequently It passed. uncontroverted that Detective Benoit is Chambers, name that was on discovered that Roberta However, card, not real identification was defendant’s name. airline nothing is in the record to indicate either the there independently or representative Agent Cahill had discovered or Similarly, stopped. fact confirmed that defendant before proof known there is no that the card’s Main Street address was fictitious, actually or did live at to have been that defendant not *27 address, by the stopped. was learned that she “Facts before occurs validate authorities the search and seizure will not after Bruzzese, N.J. unreasonable intrusions.” denied, 1030, 1295, (1983), A .2d 320 cert. 465 U.S. 104 S.Ct. (1984). Thus, recently having I how L.Ed.2d 695 fail to see suggestive criminality. expired remotely card is identification majority mistakenly significance that the The accords to the fact in plane Angeles appearing the to women boarded Los without any probabili know each the not other when record does establish they ty acquainted. example, Georgia, were For Reid v. (1980), 438, 439, 100 the 448 U.S. S.Ct. L.Ed.2d 890 terminal, plane proceeded through occa defendant left a the sionally looking man. backward the direction another When terminal, lobby they man reached the main the second him, caught up spoke briefly with the defendant and before together. left The held Supreme two Ibid. States Court United agent subsequently stopped the DEA who the defendant reasonably not have criminal suspected could the defendant of activity on the of those observed circumstances. Id. at basis 100 S.Ct. 2754.
Even in
by
the cases
majority,
noted
law enforcement
actually
officials
suspects’
observed the
efforts to
appearing
avoid
though they
as
knew each
In
other.
Ushery,
United States v.
(6th
Cir.),
denied,
F.2d
577-78
cert.
113 S.Ct.
(1992),
Unlike Ushery, and suspects where the trying were they observed to conceal that traveling together, were present record case does not show when defendant and passenger the other allegedly were trying observed to conceal that they they knew each other or attempted Again, how to do so. this provided representative, information the airline and Detec- testify tive Benoit any did not about actually behavior that he support any observed to apparently concealment. The women airplane Angeles boarded the in Los in this fashion and disem- similarly. barked If acting though they the women boarded as other, plane knew each acting then left the in Newark as though not, they perhaps did that would have been a fact to *28 ease, consider in the circumstances. this State’s assertion that attempting the two were to conceal the fact they that traveling together “simply were is too slender a reed to Reid, support 441, supra, seizure” of defendant. 448 at U.S. 100 at S.Ct. 2754.
Detective Benoit also testified that defendant’s use of a small bag is, suspicious. black tote on wheels drug was That couriers prefer carry luggage to their luggage might because “check in”
380 Yet, 353, 366, 750, Ante A.2d at 758.
alert K-9 units. 788 plane hardly a carry bag choice to her aboard is defendant’s proposi- persons drug such are couriers. The suggestive fact that carry passengers to choose to tion that it is unusual for airline them, supported by any than check is not bags, their rather Although presented drug in this couriers credible evidence case. drugs carry-on may apprehended transporting have been while transport perfectly legal luggage, of thousands other travelers handles, pulled by bags items in with wheels such as tote Glover, crew-type E.g., v. F.2d bag in this case. United States (2d Cir.1992) C.J., (Oakes, dissenting) (stating is “[I]t absurd, bus, anyone on an to has ever traveled or at least who matter, suggest something airplane that there for that to is suspicious cheeking luggage in about not one’s the under-bus compartment damaged where it can be or otherwise batted about.”). outward, sign given only may
The have Detective visible slightest suspect may have Benoit the reason to that defendant activity been was fact that her shook involved criminal hand context, though proper in its as she was nervous. When viewed too, suggestive criminality. not The nervous hand approached occurred after Detective Benoit defendant movements began asking questions. post-questioning her The nervous- ness, alone, standing suggesting not come does close to reasonable criminality. suspicion of “nervous,
Although
pertinent
evasive behavior is
factor
Wardlow,
determining
suspicion[,]”
v.
Illinois
(2000),
not
120 S.Ct.
145 L.Ed.2d
it is
people
appear
for
excited
uncommon
nervous or
when
Lund,
approaching.
officer
A.2d
is
119 N.J.
(1990).
gestures
It is
mere
settled that
nervous
furtive
insufficient,
alone,
standing
are
to rise
the level of an articulable
Ibid.;
Patterson,
suspicion.
N.J.Super.
State
may
something
637A.2d
mean
593. “Nervousness
when combined
discovery
drugs,”
with the
but nervous movements alone do not
*29
Lund,
necessarily
activity.
suggest
supra,
criminal
Rather,
merely
they
displayed
are
N.J. at
The reasonable conclusion to be drawn is ques police presence reaction to nervousness was normal nervousness, only by shaking tioning of her. Her manifested her hand, only stopped Detective Benoit her and was observed after that he was asked for identification. The detective told defendant part suspected of the narcotics interdiction unit and she was accusatory Any an drug courier. individual confronted with such Further, likely similarly. Detective Be statement would react display any testimony defendant did not noit’s demonstrates that Rather, questions. attempt or to evade his she furtive movements inquiries, flight him where her had answered all of his told personal originated, produced her airline ticket and identification plans immediately upon request, provided about her details fact, Jersey-New after York area. even while the New initially right to to allow Detective defendant invoked her refuse bags, while he Benoit to look into her she remained and waited Unit, attempting State called for the K-9 rather than to flee. Cf. Citarella, (finding 154 N.J. flight police “heightened from the level of defendant’s already by” ac engendered articulable the defendant’s tions). as an Nothing in the record characterizes defendant suspect. evasive or furtive study reasonable inferences that
My careful of the evidence and *30 conclude, me to as did the be drawn from that evidence leads can Division, the failed to the-Appellate State trial court and particular- constitutionally required reasonable and the establish activity. involved in criminal suspicion that defendant was ized II. support holding
My
that the facts do not
the Court’s
conclusion
suspicion
to believe
particularized
that a
and
existed
reasonable
drug
our
illegal
was an
courier is consistent with
that defendant
supra,
past precedents.
example,
Maryland,
in
For
State
485,
1220,
investigatory
the
found that an
N.J. at
Court
satisfy
objective
solely
the
stop predicated
on race failed to
police
a reason
The
did not articulate
reasonableness standard.
suspicion
activity
support the
particularized
able and
of criminal
Railway
investigatory stop of a
in a
train station.
Id. at
defendant
488,
graffiti patrol,
the
under facts much more substantial than those
Court
case,
present
particularized
the
that a
they
police stopped
suspect
the Fort Lee
whom
existed when
occasion,
twenty-eight prior
had arrested on
occasions. On that
riding
bicycle
in a
fashion
the defendant was observed
hurried
George Washington Bridge.
over the
Id. at
Under facts
different from those
Arthur,
case,
7-8,
the Court
149 N.J. at
691A.2d
particularized
found that
had a reasonable and
*31
support
investigatory stop
an
of a motor vehicle. The
vehicle,
seat,
sitting
parked
with the defendant
in the driver’s
high drug
police
in a known area of
traffic that the
had under
police
person
surveillance. Id. at
Based on the record and the collectively ples, I conclude that the facts do not demonstrate the required particularized suspicion existence of the that defendant in, in, just engaged engage activity. had or was about to criminal nothing occurred here was more than Detective Benoit What acting lucky engendered by generalized based on a hunch informa Patino, 1,12, (1980); v. see also tion. State 83 N.J. A.2d 1327 487, 488, 771 Maryland, supra, 167 N.J. at A.2d State v. hunch, more, (emphasizing that officer’s without cannot rise suspicion in of investi level of reasonable and articulable context gatory stop). “A search and seizure based on ‘luck and hunch’ is ” ingredients.’ ‘combination of insufficient constitutional State Contreras, (quoting supra, N.J.Super. 1327). Patino, 83 N.J. would, therefore, judgment Appellate
I affirm the Divi- suppress the evidence. sion joins opinion. Justice in this STEIN For and Justices reversal —Chief Justice PORITZ LaVECCHIA and ZAZZALI —3.
Concurring part/Dissenting part STEIN —Justices COLEMAN —2.