On appeal from Superior Court of New Jersey, Law Division, Essex County.
Michels, Baime and Wallace. The opinion of the court was delivered by Baime, J.A.D.
The Law Division dismissed defendant's indictment after granting his motion to suppress evidence. The State appeals, contending that the court erred by (1) excluding hearsay evidence at the suppression hearing, and (2) finding that the police acted unlawfully in seizing defendant's person. We reverse the order granting defendant's motion to suppress and reinstate the indictment.
On August 31, 1990, Detective Derrick Hatcher of the Newark Police Department received information from an anonymous female caller that an Hispanic male would be arriving
from New York on a New Jersey Transit train at 1:19 p.m. with a large quantity of narcotics. Hatcher and his partner, Detective James O'Connor, immediately proceeded to Penn Station to await the suspect's arrival. Both detectives were in plain clothes, but had their badges displayed on chains around their necks. O'Connor waited on the passenger arrival platform while Hatcher positioned himself downstairs, in front of the Market Street exit.
Approximately 20 minutes later, at 1:18 p.m., the train from New York arrived. From the bottom of the stairs, Hatcher observed a black male, later identified as defendant, being pursued by O'Connor. Upon seeing Hatcher's badge, defendant stopped and shouted, "All right, you got me. I respect what you're doing." Defendant simultaneously reached into his right-hand pocket and pulled out a clear plastic bag containing a white powdery substance. A cursory search of defendant's trouser pocket revealed a tin foil containing an additional quantity of suspected narcotics.
Only Hatcher testified for the State. O'Connor was apparently on vacation. However, the prosecutor attempted to elicit from Hatcher an oral statement allegedly made by O'Connor after the arrest that defendant fled upon seeing O'Connor's badge. The Law Division Judge excluded the proffered testimony on the basis that Hatcher lacked personal knowledge respecting O'Connor's observations and perceptions.
Defendant did not testify, but presented his neighbor, Russell Brown, as a witness. Brown testified that Hatcher signalled defendant to stop and asked him to empty his pockets. Brown claimed that he next saw the officer grab defendant and swing him toward the barred door at the exit. He also observed Hatcher remove his hand from defendant's pocket.
In rendering her opinion, the Law Division Judge saw no substantial inconsistencies between Hatcher's account of the incident and that offered by Brown. She reconciled their testimony by noting that Brown's observations might have been
made after defendant's arrest when Hatcher searched his trouser pockets. The point to be stressed is that the court apparently believed Hatcher's description of the incident. We must address the constitutionality of the police officers' conduct within that context.
The Judge determined that Hatcher, by positioning himself at the exit door with his badge exposed, had engaged in a show of authority sufficient to restrain defendant's liberty. The Judge found that the officer's conduct constituted a seizure of defendant's person and that the detention was not supported by either probable cause or reasonable suspicion. She added that "running in a train station is . . . [a] common activity" and that Hatcher had no reason to ...