On appeal from the Superior Court, Appellate Division, whose opinions are reported at N.J. Super. (1993).
For reversal and reinstatement -- Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- Justice Clifford. The opinion of the Court was delivered by Garibaldi, J. Clifford, J., Dissenting.
At issue is whether a police officer's pat-down of defendant during a legitimate investigatory stop was constitutional under the Fourth Amendment of the Federal Constitution and Article I, paragraph 7 of the New Jersey Constitution. Defendant, Ronald Valentine, indicted for possession of a knife by a person previously convicted of a crime, contrary to N.J.S.A. 2C:39-7, moved to suppress the knife on the ground that it was the subject of an illegal search and seizure. The trial court denied defendant's motion to suppress, holding that both the investigatory stop and the frisk of defendant were constitutional, whereupon defendant entered a guilty plea. The Appellate Division unanimously agreed that the investigatory stop was constitutional, but a majority of that court concluded that the search did not survive constitutional scrutiny, wherefore it reversed the conviction. 269 N.J. Super. 508, 636 A.2d 69 (1993). The Dissenting Judge would have upheld the pat-down as constitutional. The State appealed as of right, Rule 2:2-1(a), and we now reverse.
On June 22, 1990, at approximately 12:10 a.m., Officer Nuccio was on routine patrol in a marked police car. As he patrolled the city of Red Bank alone, he observed a woman, Debra Collier, standing in the middle of Willow Street onto which he had just turned. As Officer Nuccio pulled up closer to the woman, he observed defendant duck behind a tree, which was located on the side of Willow Street adjacent to the Jersey Central Power and Light storage yard and across from a residential area.
Officer Nuccio testified that he was personally familiar with the area as a high-crime area. In fact, he testified that he had made well over a hundred arrests in the area for offenses ranging from
burglaries, robberies, and purse snatchings to possession and distribution of controlled dangerous substances.
On observing defendant duck behind the tree, Officer Nuccio alighted from his car and approached defendant. Although the area was not well lit, Officer Nuccio spotted defendant walking out from behind the tree. Defendant was walking towards Officer Nuccio with his hands in his pockets. As defendant moved closer to him, Officer Nuccio recognized him from previous encounters. Officer Nuccio testified that he was aware that defendant had a lengthy arrest sheet, "that he had been involved in weapons offenses, armed robberies, prior C.D.S. complaints and stuff like that."
Officer Nuccio asked defendant "what he was doing." Defendant responded that he was "about to urinate, until he saw the police vehicle." Debra Collier testified that Officer Nuccio questioned defendant about why he needed to urinate behind a tree, inasmuch as he lived "right around the corner." According to Collier, defendant responded that "when nature call [sic] that happens, sometime just like that."
Officer Nuccio testified that he was "uncomfortable" with defendant's responses to his questions and defendant's overall demeanor. According to Officer Nuccio, defendant would not make eye contact with him, continually looked around, and was evasive in his answers to the questions put to him. As a result, Officer Nuccio commanded defendant to remove his hands from his pockets and move over toward the police car. Defendant complied, but, according to Officer Nuccio, he continued acting nervously. At that point, Officer Nuccio radioed for backup because he "didn't feel comfortable [by himself] the way things were going together."
Officer Nuccio then conducted a pat-down of defendant. On conducting the pat-down, Officer Nuccio felt a hard object in defendant's right jacket pocket. The officer removed the object -- a locked blade knife in the open position -- and put it in his pocket. Backup then arrived, and the police placed defendant under arrest.
In denying defendant's motion to suppress the knife seized during the pat-down, the trial court concluded that sufficient evidence justified the pat-down:
[H]e's got a guy with his hands in his pocket. Coming out from behind the bushes. In a very high crime area. Whose [sic] been arrested before and [sic] armed robbery, weapons offenses, burglaries, robberies in that area and its twelve o'clock at night. And he won't make any eye contact and he's looking around.
The Appellate Division disagreed. Over the Dissent of Judge Keefe, the Appellate Division concluded that the evidence was insufficient to support the limited frisk for weapons, even though the evidence justified the investigatory stop. Noting that defendant had complied with Officer Nuccio's request to remove his hands from his pockets and to move toward the police car, that no evidence suggested that defendant had behaved in a hostile and threatening manner, and that Officer Nuccio had not identified the criminal activity he suspected of defendant, the Appellate Division concluded that Officer Nuccio could not reasonably have believed that defendant might be armed and dangerous. The court also was reluctant to encourage police officers to rely on their knowledge of a person's prior criminal record as a reason to support a frisk. Accordingly, the Appellate Division found the frisk unconstitutional. The Dissenting Judge, however, noting the officer's isolation, the late hour, the high-crime area, defendant's furtive movements combined with his suspicious behavior, and his prior convictions for weapons offenses and armed robberies, found Officer Nuccio's pat-down reasonable.
In the landmark case of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the Supreme Court established the standards governing what has come to be known as "stop and frisk." In Terry, a police officer observed three men repeatedly looking into a store. The officer concluded that the three were about to commit a robbery. He approached the men, identified himself as a police officer, and asked their names. After receiving a mumbled reply, the officer conducted a pat-down of the men, finding
two weapons. In analyzing the constitutionality of the seizure, the Court examined whether (1) the officer had been justified in making the initial stop; (2) the officer had been justified in frisking defendants; and (3) the officer's frisk had been sufficiently limited in its scope. Id. at 20, 88 S. Ct. at 1879, 20 L. Ed. 2d at 905.
As we stated in State v. Thomas, 110 N.J. 673, 678, 542 A.2d 912, 915 (1988), "The first component of the Terry rule concerns the level of reasonable suspicion that must exist before an 'investigatory stop' legitimately may be undertaken." The essence of that standard is "'that the totality of the circumstances -- the whole picture -- must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Ibid. (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)); accord State v. Davis, 104 N.J. 490, 504, 517 A.2d 859, 867 (1986) (adopting totality-of-circumstances standard announced in Cortez).
The Appellate Division unanimously concluded that under the totality of the circumstances, Officer Nuccio's investigatory stop of defendant was constitutional under the first component of Terry. The issue here focuses on the second component of Terry, namely, the standard by which we must Judge an officer's decision to frisk a suspect incident to a lawful investigatory stop. Whether a police officer's protective search for weapons is justified is a separate question from whether the stop was permissible in the first place. Thomas, supra, 110 N.J. at 678-79, 542 A.2d at 915.
The Terry Court identified the concerns that it considered in establishing a workable standard to govern the constitutionality of a frisk incident to a lawful stop:
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. 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 ...