On certification to the Superior Court, Appellate Division, whose opinion is reported at 265 N.J. Super. 358 (1993).
O'hern, Clifford, Handler, Pollock, Garibaldi, Stein
[136 NJ Page 160] The opinion of the Court was delivered by
This appeal arises from an encounter between police and a young man sitting on a curb who fled after seeing the approach of a marked police car. The patrolling officers pursued the young man and radioed for assistance. A second police car on a nearby street responded to the call and traveled toward defendant. Defendant, on seeing the second car, reversed course, and was caught by the initial officers. He dropped a packet, which was shown to contain cocaine. Following an unsuccessful motion to suppress the evidence obtained in the encounter, defendant pleaded guilty to third-degree possession of narcotics with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), and the trial court sentenced him to a three-year period of probation conditioned on successful completion of his education at Mercer County Community College, continuation of employment that does not interfere with his attendance at college, and negative drug-testing results.
Defendant appealed the suppress ion ruling, and the Appellate Division reversed. From that determination the State appeals, raising three issues: First, did police seize defendant within the meaning of the Fourth Amendment? Second, did they have sufficient grounds to seize the defendant? Third, if the answer to that second question is no, did defendant nonetheless abandon the drugs?
The parties have stipulated to the facts. The issues are presented in somewhat of a vacuum because we sense that the record does not disclose all of the facts that the officers possessed at the time of the encounter. For purposes of this appeal, we will decide the case on the stipulated statement set forth in the State's letter brief in response to defendant's motion to suppress. The stipulation establishes that on October 10, 1989, Trenton police officers, riding in marked police vehicles, patrolled East Stuyvesant Avenue and the 300 block of Rutherford Avenue. The streets are
presumably parallel to each other. As the first patrol car turned onto Stuyvesant Avenue, the officers observed two males sitting on the curb at the rear of a house that has its frontage on Rutherford Avenue. One of the males was drinking from a bottle wrapped in a brown paper bag. When the men observed the marked police vehicle, the man with the brown paper bag remained on the curb while the other, subsequently identified as defendant, quickly stood up, turned, and started running through the yard toward the front of the property on Rutherford Avenue. An officer in the first patrol car immediately radioed a description of the fleeing man to officers in the second patrol car, which was on East Rutherford Avenue. When defendant reached Rutherford Avenue, the second patrol car intercepted him. One of the officers in that car got out and began to pursue defendant. Defendant turned around and ran back toward the rear of the yard. As defendant ran past the back porch of the house, he threw a clear plastic bag into an opening under the porch. He then ran directly into one of the officers from the first patrol car, who stopped him. The officer who stopped defendant turned him over to the other officer and then retrieved the plastic bag from under the back porch. It contained crack cocaine.
Defendant moved to suppress the evidence. The Law Division reasoned that the police had illegally arrested defendant by trapping him in the backyard. The trial court held that because the police had neither probable cause nor a reasonable, articulable suspicion to believe defendant had committed a crime, neither an arrest nor an investigatory stop was justified. However, that court denied the motion to suppress on the basis that defendant had abandoned the contraband by tossing it under the porch, thereby relinquishing any reasonable expectation of privacy.
On appeal, the Appellate Division reversed. Although it agreed with the trial court that the police had illegally seized defendant, it held that the act of discarding the goods had been the direct product of the illegal seizure rather than an abandonment. 265 N.J. Super. 358, 360-61,
627 A.2d 174 (1993). We granted the State's petition for certification, 134 N.J. 485 (1993), and defendant's cross-petition for certification, 134 N.J. 567 (1993).
The United States Constitution protects persons from unreasonable searches and seizures. U.S. Const. amend IV. On the question of what constitutes a seizure, the State relies on the principles established in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991). In that case, a police officer patrolling a high-crime area in the late evening pursued Hodari on foot after Hodari and his companions separated and fled when they saw an unmarked patrol car. Just before the officer caught him, Hodari discarded an object. After tackling Hodari, the officer recovered the discarded object. It was crack cocaine. Hodari unsuccessfully challenged the admission of the evidence at the trial proceedings. The California Court of Appeal reversed on the basis that the police had seized Hodari illegally when they ran after him, and the court suppressed the evidence as the fruit of that seizure. Id. at 622-23, 111 S. Ct. at 1549, 113 L. Ed. 2d at 695. The California Supreme Court denied an application for review by the state. Id. at 623, 111 S. Ct. at 1549, 113 L. Ed. 2d at 695. The United States Supreme Court reversed, holding that no seizure had occurred. Id. at 626, 111 S. Ct. at 1550, 113 L. Ed. 2d at 697. It ruled that although the officer's chase displayed a show of authority, a seizure under the Constitution requires the application of physical force, however slight, or a show of authority to which the suspect yields. Id. at 626, 111 S. Ct. at 1551, 113 L. Ed. 2d at 697. Thus, because defendant did not comply with the officer's command to stop, the officer had not seized Hodari until he tackled him. Accordingly, the crack cocaine tossed before the tackle was not the product of a seizure. Id. at 629, 111 S. Ct. at 1552, 113 L. Ed. 2d at 699.
The Appellate Division in this case found that under New Jersey law a seizure had occurred. The court adopted the approach
of United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980), in which the Court held that a seizure occurs "only when, by means of physical force or a show of authority, [the suspect's] freedom of movement is restrained" and "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." Heretofore, this Court has adopted that view. See State v. Davis, 104 N.J. 490, 498, 517 A.2d 859 (1986). The question posed is whether we should revise our doctrine of seizure to conform to the majority opinion in Hodari D. We generally attempt to conform our search-and-seizure jurisprudence to that of the United States Supreme Court. See State v. Hunt, 91 N.J. 338, 370, 450 A.2d 952 (1982) (Handler, J., Concurring); see also State v. Mollica, 114 N.J. 329, 353, 554 A.2d 1315 (1989) (holding State constitutional protection of privacy interest in person's telephone records extends beyond that embraced by federal constitution).
Hodari D.'s "seizure" analysis is conceptually similar to the earlier analysis that required a trespass under property law and seizure of tangible evidence as a basis sufficient to establish a constitutional invasion. Olmstead v. United States, 277 U.S. 438, 464, 48 S. Ct. 564, 568, 72 L. Ed. 944, 950 (1928). Those property-based principles have been subsumed in later years by the question whether the person had a reasonable expectation of privacy in the matter seized, be it a communication in the form of a writing or an electronic record, or other tangible or intangible evidence of guilt. See Katz v. United States, 389 U.S. 347, 352-53, 88 S. Ct. 507, 512, 19 L. Ed. 2d 576, 582-83 (1967). For example, in State v. Hempele, 120 N.J. 182, 576 A.2d 793 (1990), we did not concern ourselves with whether garbage from which evidence had been obtained constituted property owned by the accused. Rather, we addressed whether the accused had a reasonable expectation that communications and other evidence of his activities found in the garbage would not be subject to warrantless searches by governmental authorities.
We have also viewed questions of search and seizure in terms of the use of governmental authority to obtain evidence of criminal activity. We have analyzed the issue of drug testing of police officers in terms of whether the governmental compulsion to produce bodily fluids was reasonable under the circumstances. Rawlings v. Police Dep't, 133 N.J. 182, 188-89, 627 A.2d 602 (1993).
Thus, we have viewed the guarantees of the Constitution not in terms of property law but in terms of protecting the reasonable expectations of citizens to be "secure in their persons, houses, papers and effects * * * ." N.J. Const. art. I, P 7. The Court's reliance in Hodari D. on dictionary definitions of seizure may be ...