On appeal from the Superior Court, Law Division, Monmouth County.
Approved for Publication December 26, 1995.
Before Judges Dreier, Kestin and Cuff. The opinion of the court was delivered by Kestin, J.A.D.
The opinion of the court was delivered by: Kestin
The opinion of the court was delivered by KESTIN, J.A.D.
Defendant was charged with two third degree crimes, possession of cocaine and aggravated assault on a police officer, and with fourth degree resisting arrest. After the trial court denied defendant's motion to suppress evidence, defendant, pursuant to a plea agreement, entered a retraxit plea of guilty to the possession and aggravated assault charges along with a pending disorderly persons charge for possessing marijuana. As agreed, the resisting arrest charge was dismissed along with two other disorderly persons charges. Defendant was sentenced to concurrent two-year probationary terms. A $1,000 DEDR penalty was assessed along with a $50 lab fee, aggregate VCCB penalties of $150, and a fine of $1,250.
The only issue raised by defendant on appeal is:
WHERE POLICE HAD NO REASONABLE BASIS TO BELIEVE THAT DEFENDANT WAS ENGAGED IN CRIMINAL ACTIVITY, THE ATTEMPTED STOP AND SUBSEQUENT CHASE OF DEFENDANT VIOLATED HIS RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES. (U.S. CONST., AMEND IV; N.J. CONST. (1947), ART. I, PAR. 7). ACCORDINGLY, THE DECISION OF THE TRIAL COURT DENYING DEFENDANT'S MOTION TO SUPPRESS MUST BE REVERSED.
The only person to testify at the suppression hearing was Sergeant Powers of the Aberdeen Police Department. At about 11:20 p.m. on November 23, 1993, he was participating in a surveillance operation, when he received a radio communication from other members of the surveillance team alerting him to a person on Shady Nook Road in a residential area "known to be frequented by persons looking to purchase or distribute controlled dangerous substances." Sergeant Powers was in plain clothes, driving an unmarked vehicle and accompanied by two or three other police officers. He drove his vehicle to the indicated location. As he turned the corner onto Shady Nook Road, he saw one person, later identified as defendant, walking near the center of the roadway in the same direction of travel as the vehicle. He drove the vehicle alongside the pedestrian and stopped. Its window had been rolled down. Powers and the pedestrian looked at each other. Powers recognized defendant, who he knew by name. Powers had "had prior contacts with him in the neighborhood .... [and had] participated in arrests involving [defendant] and just general street contacts with him." Powers also knew that defendant had been arrested nearby about ten to twelve days earlier in a situation involving a group of young men which "entailed possession of narcotics and I believe loitering with the intent to distribute narcotics."
When Powers and defendant made eye contact, defendant expressed a look of surprise, uttered an expletive and "immediately turned and began running in a northerly direction." Powers "immediately put the car in park, got out and started to give chase ..., yell[ing] 'stop, police', at least once, possibly twice." One of the other police officers in the car also got out and began to give chase. Defendant did not respond to Powers's shout. "He didn't slow down. I don't believe he looked back." Powers knew that defendant lived nearly, but believed the direction he was running was not towards defendant's house.
Powers kept defendant in sight during most of the chase. At one point defendant "started to run through a yard. He hopped over one fence. [The two police officers] got over that fence ... and then at the back of that yard [defendant] got over that fence. By this time he was a little ahead of me.... I could see that he appeared to toss away several items away from his body." The items were retrieved, and became the evidentiary basis of the possession of cocaine charge and the objects of the motion to suppress. Sergeant Powers testified further as to his purpose in pulling the vehicle alongside defendant before the chase began: "At that time I just wanted to see who it was, briefly ask him where he was coming from, where he was going to and see what information I could get."
On cross-examination, Sergeant Powers acknowledged that it was not particularly unusual to see a person walking in the roadway as defendant had been. Powers also acknowledged that although he had previously been involved in the execution of a search warrant and in a narcotics arrest on a street two blocks away, he couldn't recall any narcotics arrests on Shady Nook Road. He also testified that defendant was not carrying any packages, that defendant was alone as he walked down Shady Nook Road, and that Powers and his surveillance team had received no specific complaint about drug dealing on Shady Nook Road that night. Sergeant Powers also testified, on redirect examination that, when defendant was first sighted, he appeared to be coming from Raritan Street nearby, where Powers had been involved in several arrests and warrants at a house occupied by a particular individual known by Powers to have a connection with defendant.
The focal issue at the suppression hearing and on appeal is whether this case is controlled by State v. Tucker, 136 N.J. 158, 642 A.2d 401 (1994), or by State v. Doss, 254 N.J. Super. 122, 603 A.2d 102 (App. Div.), certif. denied, 130 N.J. 17 (1992), cited with approval in Tucker, supra, 136 N.J. at 169-70. The question bears upon the factual ingredients of this case and whether, together, they take on a flavor that is closer to the facts of Tucker, in which the seizure of evidence discarded during a chase was suppressed, or Doss, in which the motion to suppress was denied. Resolution requires an understanding of the points that, together, comprise the fine line separating Tucker from Doss, much as in constructive possession cases involving motor vehicle stops in respect of State v. Palacio, 111 N.J. 543, 545 A.2d 764 (1988), and State v. Shipp, 216 N.J. Super. 662, 524 A.2d 864 (App. Div. 1987). See, e.g., State v. Miller, 273 N.J. Super. 192, 196, 641 A.2d 567 (App. Div. 1994). Such reasoning processes are often exercises suffused with fine distinctions and seldom requited by certainty. In Tucker:
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 ...