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State in Interest of H.B.

Decided: December 2, 1977.

STATE OF NEW JERSEY IN THE INTEREST OF H.B., JUVENILE-APPELLANT


For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan and Schreiber. For reversal -- Justices Pashman, Clifford and Handler. The opinion of the court was delivered by Hughes, C.J. Mountain, J., concurring. Justices Sullivan and Schreiber join in this concurring opinion. Pashman, J., concurring in dissent. Justice Handler joins in this opinion. Mountain, Sullivan and Schreiber, JJ., concurring in the result. Handler, J., dissenting. Justice Pashman and Justice Clifford join in this opinion.

Hughes

[75 NJ Page 244] The appellant was adjudicated a juvenile delinquent for possession of a revolver in violation of N.J.S.A. 2A:151-41, an offense which, had he been an adult, would have constituted a high misdemeanor. His appeal, here as of right under R. 2:2-1(a)(2), challenges the majority

decision of the Appellate Division upholding that adjudication after approving the trial court denial of the motion to suppress evidence on which it depended.

The sound opinion of the majority, which we affirm and specifically adopt and incorporate herein, would ordinarily suffice without more. We deem some added discussion necessary, if only to emphasize the need for a realistic State approach to the dangers presented by the modern proliferation of handguns in the possession of millions of citizens including, of course, many violent criminals. The fact and relevance of this phenomenon were noted by Chief Justice Warren in the landmark case of Terry v. Ohio, 392 U.S. 1, 23-24, 88 S. Ct. 1868, 1881, 20 L. Ed. 2d 889, 907 (1968):

American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.

Continuing in a footnote, the Chief Justice mentioned:

Fifty-seven law enforcement officers were killed in the line of duty in this country in 1966, bringing the total to 335 for the seven-year period beginning with 1960. Also in 1966, there were 23,851 assaults on police officers, 9,113 of which resulted in injuries to the policemen. Fifty-five of the 57 officers killed in 1966 died from gunshot wounds, 41 of them inflicted by handguns easily secreted about the person. * * * See Federal Bureau of Investigation, Uniform Crime Reports for the United States -- 1966, at 45-48, 152 and Table 51.

The easy availability of firearms to potential criminals in this country is well known and has provoked much debate. See e.g., President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 239-243 (1967). Whatever the merits of gun-control proposals, this fact is relevant to an assessment of the need for some form of self-protective search power. [392 U.S. at 24 n. 21, 88 S. Ct. at 1881, 20 L. Ed. 2d at 907].

There are projected to be no less than 40 million handguns in circulation in this country today, with about 2.5 million being added to that pool each year. United States

Conference of Mayors, National Forum on Handgun Control Proceedings at 6 (forum in Los Angeles, Ca. May 27-29, 1975).

This volatile mixture, of violence and the surfeit of handguns which is its primary co-efficient, presents much danger to law-abiding society and a particular threat to the uniformed law enforcement community which is so frequently its target. This astounding situation is a factor which cannot be ignored in considering the constitutionality of the police conduct here involved.

The danger is particularly acute in an urban community such as the City of Newark, where this case arose. The Eisenhower Commission found that in large United States cities handguns assisted in 86 percent of all aggravated assaults committed with guns, 92 percent of homicides by gunfire and 96 percent of robberies committed with guns. National Commission on the Causes and Prevention of Violence, To Establish Justice, To Insure Domestic Tranquility xxvi (1969). And while a few states, including New Jersey, have strong and strictly enforced gun control laws, N.J.S.A. 2A:151-32 et seq.; N.J.S.A. 2A:151-41 et seq., their effectiveness is limited because in many states gun controls are virtually non-existent or largely ignored. As of 1971, eight states had no law against felons buying firearms, and in 35 states mentally ill persons could legally own guns. Comment, "Shooting to Kill the Handgun: Time to Martyr Another American 'Hero'," 51 J. Urban Law 491, 512 (1974).

New Jersey, highly congested and with its share of crime and its causes, is no stranger to this national malady. Twenty-four police officers were killed by guns in this State during the ten year period ending in 1976. During 1976, there were a record five New Jersey police officers killed and 3,903 assaulted in the line of duty. Of every 100 municipal police officers, 21.5 were assaulted during 1976. New Jersey State Police, Uniform Crime Reports for the State of New Jersey -- 1976, at iv. The State Police Superintendent reports that since 1971, 21,719 guns have been delivered to him

for destruction, by police officials and prosecutors. These weapons were seized as a result of illegal use or possession, the vast majority having been used in the perpetration of a crime.

Such continuing trends would make even more relevant today the prophetic warning of the United States Supreme Court in Terry v. Ohio, supra, dealing with police exposure and apprehension of harm:

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. * * *

The Chief Justice went on to say:

A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310, 87 S. Ct. 1642, 1652, 18 L. Ed. 2d 782, 794 (1967) (Mr. Justice Fortas, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a "full" search, even though it remains a serious intrusion.

Our evaluation of the proper balance that has to be struck * * * leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [ Id. at 25-27, 88 S. Ct. at 1882-83, 20 L. Ed. 2d at 908-09 (emphasis added)].

Accepting these rules as representing bedrock constitutional law, it remains to apply them to the factual base as stated by the Appellate Division:

On December 16, 1974 Patrolman Finn of the Newark Police was on duty in a radio car when he received a radio dispatch from police headquarters that a black individual wearing a black hat, black leather coat and checkered pants was in Ray's Luncheonette at 407 South Orange Avenue with a gun in his possession.

Officer Finn and his partner proceeded to the location. As Finn entered the front door he saw approximately 15 persons in the luncheonette. He also observed a black man with a black hat, black leather coat, checkered pants and sneakers seated in a rear booth with three girls.

He thereupon walked up to the booth and told the male occupant, identified as defendant, to stand and put his hands on the wall. Finn then patted him down or frisked him, and as he was doing so he felt an object in the right hand coat pocket which felt like a gun. He reached into the pocket and removed a .32 caliber revolver. [139 N.J. Super. at 465].

We will assume in the absence of evidence to the contrary that the information in the radio dispatch from police headquarters was based upon no more than an anonymous "tip." The record does establish, however, that the description therein of H.B.'s person and clothing was found to be precisely accurate; that none other of the 15 males in the luncheonette was similarly dressed or "fitted the description"; that there was nothing unusual (or suspicious in the Terry sense) in

H.B.'s conduct; but that Officer Finn, and presumably his partner, were in full uniform when they entered the premises. We regard this last fact as highly significant to the reasonableness of the conduct of the officers, in view of their exposure to risk in this somewhat crowded place, from a supposed "man with a gun."

The "informer reliability" demanded by Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1968) and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) is not a prerequisite here. We are not concerned in this case with a "full blown search" as mentioned in the dissent filed in the Appellate Division, but rather with the brief and limited self-protective intrusion described in Terry.

There is some verification factor in the very accuracy of the informer's description. Although the informer in Draper v. United States, 358 U.S. 307, 309, 79 S. Ct. 329, 331, 3 L. Ed. 2d 327, 330 (1959), was known and reliable, the Court attached significance to the appearance, at the place predicted, of a "person, having the exact physical attributes and wearing the precise clothing described * * *."

In reaching its conclusion that the limited intrusion in the present case was amply justified, the majority below cited People v. Taggart, 20 N.Y. 2d 335, 283 N.Y.S. 2d 1, 229 N.E. 2d 581 (Ct. App. 1967), appeal dismissed, 392 U.S. 667, 88 S. Ct. 2317, 20 L. Ed. 2d 1360 (1968). There the Court of Appeals was dealing with a gun possession case based on a "stop and frisk" by a detective who had been alerted by an anonymous telephone call. The court gave evidential weight to the matching of the description:

As Delaney testified, the description of defendant given to him by the informer matched "perfectly" with his own observations. To that extent, then, the information was correct, and this substantiation justified Delaney's suspicion that the remainder of the information might also be correct. In acting upon this assumption, Delaney was "exercising a reasonable and necessary police power for the prevention of crime and the preservation of the public order" --

a power which was recognized at common law * * * [283 N.Y.S. 2d at 5, 229 N.E. 2d at 584].

The Taggart court believed, as we do in the circumstances of the present case, that "for the police to have ignored the information received is not an acceptable thesis, despite the anonymity and, therefore, the undetermined reliability of the source." 283 N.Y.S. 2d at 6, 229 N.E. 2d at 584. We think that the police here would have been derelict in the performance of their duties had they not made such a limited weapons search.

Appellant urges that People v. La Pene, 40 N.Y. 2d 210, 386 N.Y.S. 2d 375, 352 N.E. 2d 562 (Ct. App. 1976) and People v. Wynn, 54 A.D. 2d 366, 388 N.Y.S. 2d 922 (App. Div. 1976), decided subsequent to the decision of the Appellate Division in this case, overrule Taggart sub silentio. We find nothing in either case to warrant rejection of the reasoning in Taggart. The "precipitate frisk" in La Pene was based on information "couched in vague and general terms" (black man in red shirt); no attempt was made to ascertain whether others present fit this description; and the court specifically found no "exigency" justifying a limited protective frisk. In Wynn also the information was ambiguous, concerning a man walking on the street "possibly armed with a gun," there being "no report that the man had a gun." 388 N.Y.S. 2d at 925. Although the court in Wynn also noted the absence of any indication that any such gun had been used in the commission of a crime, we specifically reject this factor as not important in the circumstances of the present case, in the face of the handgun crisis we have described and its immediate threat of violence to society in general and to uniformed police officers in particular. We deem La Pene and Wynn of no aid to appellant.

As to People v. Stewart, 41 N.Y. 2d 65, 390 N.Y.S. 2d 870, 359 N.E. 2d 379 (Ct. App. 1976) and People v. McLaurin, 56 A.D. 2d 80, 392 N.Y.S. 2d 1 (App. Div. 1977), however these cases may be considered as eroding the

authority of Taggart, they are yet distinguishable from the facts here, if only because of the comparative vulnerability of the policemen involved, a factor we deem highly relevant to the justification of the police conduct.

The concept of exigency is important in this type of case. As Justice Brennan stated in Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967): "The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would endanger their lives or the lives of others." Id. at 289-90, 87 S. Ct. at 1646, 18 L. Ed. 2d at 787.

The thread of logic in these cases projects the element of "reasonableness" as justifying the limited intrusion described by Justice Jacobs for this Court in State v. Dilley, 49 N.J. 460 (1967). He recalled the Terry rationale that "the officer who frisks a person he considers dangerous does so, not ...


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