For reversal -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall, Mountain and Sullivan. For affirmance -- Judge Conford. The opinion of the court was delivered by Sullivan, J. Conford, P.J.A.D., Temporarily Assigned (dissenting).
This appeal involves the issue of whether a police officer has the right in appropriate circumstances to seek to question a person on the street about possible criminal behavior, even though the officer has no probable cause to make an arrest.
Defendant was convicted of the unlawful possession of heroin and was sentenced to two years probation and fined. On appeal, the Appellate Division reversed the conviction on the ground that defendant's pretrial motion to suppress the evidence consisting of 14 decks of heroin seized at the time of his arrest should have been granted. The court held that it did not find in the evidence adduced on the motion hearing "the existence of such 'highly suspicious' activities on defendant's part as would justify the police in stopping and questioning him in the manner that they did." We granted the State's petition for certification. 62 N.J. 188 (1972).
Since this case turns on the facts surrounding defendant's apprehension and the seizure of the 14 decks of heroin, a summary of the evidence presented at the hearing on the motion to suppress is in order.
The only witness called by the State was Detective Gordon El, a member of the Newark Narcotics Squad.
El testified that on February 2, 1971, at about 3:30 P.M., he was on duty with Detectives McNulty and Delaney. The officers were in an unmarked squad car and were wearing regular street clothes. While patrolling on 15th Avenue near Bruce Street in Newark, a narcotics area, El observed
defendant "a known narcotics' pusher and dealer" whom El had previously arrested on a narcotics charge and whom El described as "card carrying."*fn* El had seen defendant in the area on some 40 occasions.
As the car approached defendant, who was walking along the street, El called him by name over to the car. Defendant did not respond and started to walk quickly in the opposite direction towards a tavern. (El said that defendant knew who the officers were.)
The officer got out of the car and went after defendant again calling him by name. When he was about two feet in back of defendant, El saw defendant put his right hand to his mouth. (El said that based on his experience on the narcotics squad defendant's gesture indicated he was attempting to conceal narcotics evidence.) Just as El caught up with defendant, defendant turned and pushed the detective away. El then attempted to arrest defendant for assault. A struggle ensued during the course of which defendant fell to the ground and 14 decks of heroin wrapped with a rubber band fell out of defendant's mouth.
On cross-examination El clarified his testimony about having previously arrested defendant on a narcotics charge by admitting that he had not arrested defendant himself, but had been present when defendant was arrested by another officer.
Defendant did not testify. The only evidence he offered was his arrest record maintained by the Newark Police Department. This record did not show a prior narcotics arrest.
The trial court found it unnecessary to decide whether Detective El was mistaken in his testimony as to defendant's prior narcotics arrest or whether the Newark arrest record was not complete. The court was satisfied that defendant was known to the officer who, under the circumstances,
had the right to question defendant and when defendant turned away and made a gesture to his mouth the officer had probable cause to suspect criminal activity on defendant's part.
As heretofore noted, the Appellate Division held that the circumstances were not such as to justify the police attempt to stop and question defendant. Accordingly, it ordered the heroin evidence suppressed, apparently on the basis it was the "fruit" of illegal police action. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
We disagree. A narcotics officer is especially qualified to detect traffic in narcotic drugs. He learns through experience how to spot an addict or pusher, how an addict or pusher acts and reacts, and where the areas of narcotics activity are. When an officer applies his expertise in a narcotics situation, it should not be given grudging recognition when assaying the existence of cause to take police action.
Here the trial court's findings were supported by credible proofs. It accepted Detective El's testimony that he knew defendant. This was a narcotics area. El had seen defendant in the area on some 40 prior occasions. Defendant was a known narcotics pusher and dealer according to the officer. While the record does not indicate why El called defendant over to the car, it is reasonable to assume that he wanted to question defendant on the subject of narcotics. In view of ...