On appeal from the Superior Court of New Jersey, Law Division, Union County.
Michels, Petrella and Baime. The opinion of the court was delivered by Michels, P.J.A.D.
Pursuant to leave granted by this court, the State appeals from an order of the Law Division which granted the motion of defendant John Elbert Bates to suppress evidence seized following his arrest.
Defendant was indicted by the Union County Grand Jury and charged with burglary in violation of N.J.S.A. 2C:18-2 and theft of movable property having a value in excess of $200 in violation of N.J.S.A. 2C:20-3. Following his arraignment and entry of a plea of not guilty to the charges, defendant moved to
suppress the evidence. The trial court held at the conclusion of the lengthy hearing that there was no probable cause to arrest defendant and, alternatively, if assuming that defendant was not arrested and there was a legitimate investigatory stop, there was no legal right for the police to ask defendant to raise his foot and display the soles of his shoes. The trial court thereupon suppressed all evidence seized as a result of the arrest. The State challenges the ruling contending, among other things, that there was probable cause to arrest defendant prior to the visual inspection of the soles of his shoes and that there clearly was probable cause to arrest after the inspection. We agree and reverse.
The facts are these: At approximately 4:45 p.m. on March 19, 1984, Officers Nolan and Ross of the Rahway Police Department received a report of a theft of a television set from 39 West Scott Avenue, Rahway. A later radio transmission described the robbery suspects as two black males driving a small brown vehicle which had fled west on West Scott Avenue. The report said that one of the suspects was wearing a dark blue or black jacket and that the suspects' vehicle had a temporary registration sticker in its rear window. Officer Nolan went directly to the scene of the alleged burglary, a metal fabrication business located in a commercial and industrial neighborhood in Rahway. As he drove up he observed the television set which the victims had reported as stolen sitting on the lawn in front of the victims' premises. The business itself was set back approximately fifteen feet from the street, including a lawn area approximately ten feet wide and a sidewalk and curb area about five feet wide. Upon arriving at the scene Officer Nolan did not observe any pedestrian traffic in the area or other persons present on the street.
One of the victims, Peter Holler, Sr., told Officer Nolan that he had initially observed defendant and his confederate in their vehicle parked in the no parking zone directly in front of 39 West Scott Avenue. Defendant had exited from the car and had started walking towards the front door. He then "abruptly
turned around and got back into the vehicle." Peter Holler, Sr., after seeing defendant, "looked around and noticed that there was a door that was shut to the office area which is usually left open." Also noting that his dog was absent, he called his sons, Daniel and Peter, and told them "something's wrong" and expressed concern about the "black guy out in front." Daniel walked to the front of the building where he "sees this guy stepping out of the vehicle, then stopping and getting right back into the vehicle without . . . being on the sidewalk . . . but stepping out of the car and then stepping back inside." Daniel then looked upstairs, where the apartment in which he lived was located, and saw that his apartment door was wide open. He ran up the stairs and, looking inside, found that his television set was missing. He yelled down to his father, who was already on the telephone with the police, and reported the theft. Daniel also observed the suspects' vehicle leave the scene and proceed in a westerly direction down West Scott Avenue.
Officer Nolan testified that none of the victims or other employees of the shop had heard the dog barking just prior to the moment when Peter Holler, Sr., spotted defendant, and that the dog was later found elsewhere on the premises. In addition, the victims did not know that the television set was on the front lawn until Officer Nolan pointed it out.
In the course of investigating the theft, Officer Nolan spotted several sets of footprints in the area surrounding the television. Officer Nolan described the area as "fairly dry" and indicated that "there was no rain on that day." Four of the prints had a distinctive pattern, as Officer Nolan described:
It was like a ridge mark going across, then like a little curve coming down with a little circle on the edge. And this was the major characteristic to the shoes and to the prints that were at the scene.
Officer Nolan observed three of these distinctive footprints in the lawn area in front of the shop and spotted the fourth in the dirt area between the sidewalk and curb. The police officer at that time ...