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State v. Williams

Decided: September 4, 1991.


Sachar, J.s.c.


This is a motion to suppress based on anonymous phone calls to the police concerning a suspicious person with a gun. The court delivered an oral opinion from the bench and indicated that a written opinion would follow.

Officer King, the only officer to testify who was on the scene, stated that "we were given a job, possible man with a gun wearing a red hat doing holdups in the area." He added that in the area of Sixth and Court Streets he "saw approximately four black males standing on the corner. One of the black males had a red hat on." He testified that the area was a residential neighborhood, basically black and hispanic. That it was a high narcotics area and that he had responded to the area numerous times because of drug activities and men with guns.

There had been reports of shots fired down there several times. The officer indicated that there were several backup units present and that the four black men were ordered to put their arms against the wall.*fn1 Defendant was patted down for weapons and the officer felt a hard object in his pocket. A search of the pocket disclosed a nine-inch blade. A search incident to arrest revealed narcotics on defendant. After the arrest, a toy gun was found in the gutter approximately eight feet from defendant.*fn2

The court asked to have the dispatcher produced, and the hearing was continued. The propriety of the stop required a remand in State v. Spencer, 221 N.J. Super. 265, 534 A.2d 410 (App.Div.1987), because of a failure to produce evidence at the suppression hearing with respect to the information possessed by the police department that dispatched the police officer. As stated in Spencer:

The mere fact that Papapietro acted on a report circulated within his department does not mean that he had an articulable and reasonable suspicion. If the information in the hands of the police was mere hunch or rumor or was otherwise insufficient to support an articulable and reasonable suspicion, that information would not justify a stop even though Papapietro relied on it in good faith to stop the car. The reliability of the information is not enhanced simply because it is communicated through police channels. [at 268, 534 A.2d 410]

After hearing the dispatcher and examining the dispatcher's records, the court satisfied itself that there were indeed calls from anonymous tipsters. As the court stated in Commonwealth

v. Anderson, 366 Mass. 394, 318 N.E. 2d 834 (Sup.Ct.1974):

It is not unimportant that the message was in writing and was passed on by some disinterested citizen, thus eliminating the possibility of a police fabrication which is a principal concern in assessing the propriety of a threshhold inquiry launched by an anonymous tip. [318 N.E. 2d at 838]

The police dispatcher produced two separate cards indicating the first call was received at 11:17 p.m. from an anonymous caller who stated that a man with a gun wearing a red hat, blue jeans and a dark jacket was in the area of 540 Court Street, which is in the area of Sixth and Court Streets. The second call at 11:21 p.m., also from an anonymous caller, was of a suspicious person with a gun located at Sixth and Court Streets. It was the dispatcher's belief that the calls were from two separate women. Separate police cars were dispatched to the scene.

Police, on less than reasonable suspicion, have a right to investigate and ask questions. Citizens have a right to decline to answer such questions:

There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets . . . Of course, the person stopped is not obliged to answer, answers may be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation. [ Terry, supra, 392 U.S. at 34, 88 S. Ct. at 1886, 20 L. Ed. 2d at 913 (White, J., concurring)]

Citizens also have the right to walk away:

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. [ United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980), reh'g den. 448 U.S. 908, 100 S. Ct. 3051, 65 L. Ed. 2d 1138 (1980)]

Since defendant was not free to leave and was put up against the wall and patted down, he was subject to a Fourth Amendment seizure.

Moreover, it is simply fantastic to urge that such procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a "petty indignity." It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly . . . We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police

conduct if the officers stop short of something called a 'technical arrest' or a 'full-blown search.' [ Terry, supra, 392 U.S. at 16-19, 88 S. Ct. at 1877-1879, 20 L. Ed. 2d at 903-904]

The Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. U.S. Const.Amend. IV.

This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized, 'No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.' [ Terry v. Ohio, supra, 392 U.S. at 9, 88 S. Ct. at 1873, 20 L. Ed. 2d at 898 (quoting Union Pacific Railroad Company v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001, 35 L. Ed. 734, 737 (1891)]

"What the constitution forbids is not all searches and seizures, but unreasonable searches and seizures." Elkins v. United States, 364 U.S. 206, 222, 80 S. Ct. 1437, 1446, 4 L. Ed. 2d 1669, 1680 (1960).

As we have noted on a number of occasions, the Federal and State Constitutions do not bar all searches and seizures. They bar only those that are 'unreasonable.' [ State v. Kasabucki, 52 N.J. 110, 115, 244 A.2d 101 (1968); see also id. at 115, n. 2, 244 A.2d 101, citing Terry, supra ]

While the Fourth Amendment provides that searches and seizures not be unreasonable, one should not thereby conclude that the Supreme Court considers a search and seizure without probable cause as unreasonable in all cases.*fn3

The general rule is that seizures and searches must be supported by probable cause. At the same time, the Court has recognized a narrowly defined exception to this general rule. A level of suspicion less than probable cause may justify a search or seizure if the intrusion on Fourth Amendment interests is minimal, and if the minimal intrusion is outweighed by the governmental

interests served by the police action. Generally speaking, the Supreme Court has defined a minimally intrusive seizure as one that occurs in public and is brief. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604 (1985). The Supreme Court has assessed the intrusiveness of a search, on the other hand, by considering whether it invades an "expectation of privacy . . . that society is prepared to recognize as 'reasonable'." Katz [ v. United States ], 389 U.S. [347] at 361, 88 S. Ct. [507] at 516 [19 L. Ed. 2d 576 (1967)] (Harlan, J., concurring). Specifically, the Court has upheld searches conducted on less than probable cause when they occur in certain clearly defined places which by their public nature give rise to reduced expectations of privacy . . . The genesis of the Court's two-tier approach is, of course, Terry v. Ohio. [ United States v. Winsor, 846 F.2d 1569, 1575-1576 (9 Cir.1988)]

In Terry, the Court stated "there is no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails." 392 U.S. at 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 905 (citing Camara v. Municipal Court, 387 U.S. 523, 534-537, 87 S. Ct. 1727, 1733-1735, 18 L. Ed. 2d 930, 938-940 (1967)); see also United States v. Montoya De Hernandez, 473 U.S. 531, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985).

The New Jersey Supreme Court said in State v. Dilley, 49 N.J. 460, 231 A.2d 353 (1967), even before the affirmance of Terry by the United States Supreme Court, that:

Freedom and privacy are precious rights which must be zealously guarded for the individual. But without the general security of law and order they would lose their meaning for all. This was fully recognized in the Fourth Amendment which balances the rights of the individual and society and embodies the test of reasonableness. [at 470, 231 A.2d 353]

This balancing approach is not done by the police on a case-by-case approach but is applicable to all Terry stop-and-seizure cases as an exception to the probable cause requirement of the Fourth Amendment.

When we balance the need for a search against its intrusiveness, we usually do so to judge the permissibility of a particular law enforcement practice, not the permissibility of a particular search. Once the Supreme Court has struck the balance, as we believe it has here, it is not our task to reweigh the relevant interests in every case that comes before us. [ United States v. Pierre, 932 F.2d 377, 384 (5 Cir.1991)]

And in O'Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987), Justice Scalia, the crucial fifth vote, admonished

the four-justice plurality, that a fact-specific case-by-case approach would plunge courts into a never-ending and essentially standardless assessment of every search. Winsor, supra, 846 F.2d at 1578.

To find a reasonable suspicion sufficient to except the seizure from the probable cause requirement of the Fourth Amendment

There must be something at least in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity, completed, current or intended. ". . . In Terry the police officer judged that his suspect was about to commit a violent crime and that he had to assert himself in order to prevent it." [ State v. Saia, 302 So. 2d 869, 872 (La.Sup.Ct.1974)*fn4

In Terry, Officer McFadden of the Cleveland Police Department was patrolling the downtown section in plain clothes when he observed suspicious behavior on the part of two individuals. He saw how one of them would go up to a store, look through its window and return to speak with the other person. This went on for about 10 to 12 minutes. As a result, the officer believed that these two individuals were "casing a job, a stick-up." 392 U.S. at 6, 88 S. Ct. at 1872, 20 L. Ed. 2d at 897. He believed that if they were in fact planning to hold up the store, they might have a gun. The officer approached the men and asked for identification and immediately thereafter conducted a "pat-down" of the outer clothing, thereby finding revolvers on each of the two men.

Terry does not involve an anonymous tip. However, it involves the distinction between the police acting on a hunch or an articulable objectively reasonable basis of suspicion. To justify the policeman's stop and search, he "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906.

The facts must be judged against an "objective standard: would the facts available to the officer at the moment of the seizure . . . 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" [ Id., 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906]

The need to use anonymous phone calls or tips in police investigations has been increasingly recognized over the years. The trend reflects the significant role played by anonymous tips in the detection and prevention of crime, as well as in the resolution of crimes already committed. However, an anonymous tip without more may be no more than a citizen's hunch or an assertion based on rumor, malice or falseness at worst. The court must accordingly evaluate the nature of the tip.

Until 1972, the strongest comment by the United States Supreme Court on the use of anonymous tips came in the form of dicta in Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).

The Supreme Court in Adams v. Williams addressed whether a known informant's tip can supply the reasonable suspicion necessary for a stop and frisk. In Williams, a known informant approached an officer on patrol and told the officer that a person in a nearby car was carrying narcotics and had a gun at his waist. The officer then approached the vehicle to investigate the informant's information. The officer tapped on the car window and asked the occupant to open the door. When Williams opened the window instead, the officer reached into the car and pulled a loaded pistol ...

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