On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz, Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Garibaldi, J.
This appeal concerns the sensitive issue of investigatory stops of private citizens by police officers. Specifically, the issue here is whether, under the circumstances of this case, a police officer's stopping and questioning of defendant was constitutional under the fourth amendment of the Federal Constitution and Article I, paragraph 7 of the New Jersey Constitution. Defendant, Henry Davis, indicted for burglary, N.J.S.A. 2C:18-2, and theft, N.J.S.A. 2C:20-3, moved to suppress the evidence seized from him on the grounds that it was the subject of an illegal search and seizure. The trial court granted Davis' motion to suppress and the Appellate Division denied the State leave to appeal the interlocutory order. Pursuant to Rule 2:2-2(b), we granted the State leave to appeal the interlocutory order, 102 N.J. 401, (1986), and now reverse the order suppressing the evidence.
The only witness to testify at the suppression hearing was Police Officer John D'Andrea, a 14-year member of the Springfield Police Department. He testified that at approximately 11:45 P.M. on May 25, 1985, while on patrol, he received a radio dispatch from the desk sergeant "detailing" him to investigate a telephone call from a member of the Springfield First Aid Squad who said he had observed two individuals*fn1 "hanging around" a closed Exxon gasoline station located at the intersection of Morris Avenue and Caldwell Place in Springfield.*fn2
Lieutenant Kennedy, also of the Springfield Police Department, arrived at the Exxon station before D'Andrea. Having found no one at the station, Kennedy instructed Officer D'Andrea to drive up Morris Avenue to search for the two suspects. Approximately three blocks from the station, Officer D'Andrea observed two individuals on bicycles "driving against vehicular traffic on the left side of the roadway." He approached them from behind and made a left turn into a street in front of them in order to impede their path. He did not put on his lights or siren. The following excerpts from the hearing transcript relate Officer D'Andrea's version of events that transpired after the stop:
I asked them if they were at the Exxon station and they stated yes.
I asked them what their purpose was at the Exxon station and they said they ran out of gas further up the road. They were looking for a gas station that was open. They were at the Exxon station and it was closed and they got a gas container.
At that time they were holding an Exxon empty anti-freeze bottle*fn3 and they needed gas container because the gas station, Mobile station would not sell them gas unless they had a container to put the gas in.
The Mobile station is located on Morris and Millburn. They were driving to that area on their bicycles. That's other end of Morris Avenue in Millburn.
At that time I asked them what were they doing with bicycles if they ran out of gas. They stated that the bicycles were in the trunk of the car. I asked them what kind of car they had and where it was. They weren't sure -- they couldn't remember where the car was and they said the bicycles were in the trunk of the 280Z, Datsun. They stated the two bicycles, one was a ten speed and one was a three speed. They said they had bicycle racks on the back.
At that time I asked them for their identification and they did not produce any.
I asked them what their names were and one was a Darryl Davis and the other was Williams. I forget what first name he gave me.
I asked them for identification. Mr. Williams at that time he was identified as Mr. Williams, gave me a registration. They said this was to the vehicle. The registration he gave me was to a 1980 Ford, to a Mr. Sunday Ajayum from East Orange.
I asked him how did he get this registration to Mr. Ajayum's car. He stated that was his brother. He also stated that was the car he was driving.
I asked them if they had any drivers' license. They said no.
I asked for drivers' license. Mr. Davis stated that he left his driver's license in the vehicle at the location, which they were not sure of where the car was.
At that time I got out of the police car after I radioed what information I had. I got out of the police car. At that time I noticed that the three speed bicycle had a Summit registration bike tag, a number of which I'd have to check my report. I don't remember offhand.
At that time I conducted a pat down search*fn4 of both subjects and found a set of car keys and I'd have to check the report, which subject with the car keys were in. He stated those belonged to the car and they were his brother's.
While waiting for the back-up units to arrive at the scene, Officer D'Andrea radioed the desk sergeant and asked him to telephone the Summit Police Department to determine whether any bicycles had been reported stolen. At this point, both individuals admitted that the bikes were stolen. Officer D'Andrea testified that it was possible that this admission was a response to the radio transmission, which was made within earshot of the suspects.
The trial court did not doubt Officer D'Andrea's credibility and concluded that all of the officer's conduct after the initial stop was valid. Nevertheless, the trial court granted defendant's motion to suppress the stolen bicycles, because the court never heard the officer specifically use the word "suspicious" in articulating his reasons for ...