On appeal from Superior Court of New Jersey, Law Division, Union County.
Approved for Publication January 31, 1996.
Before Judges Shebell, Wallace and Newman. The opinion of the court was delivered by Newman, J.A.D.
The opinion of the court was delivered by: Newman
The opinion of the court was delivered by NEWMAN, J.A.D.
Defendant Christopher Arthur appeals from an order denying his motion to suppress. Following that denial, defendant entered a guilty plea to third degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), pursuant to a plea agreement which recommended a three-year probationary sentence. Defendant was later sentenced to three years of probation, five hours of community service per month during his probationary term, periodic urine monitoring and participation in an outpatient drug program. A $1,000 DEDR penalty, a $50 lab fee, a $50 VCCB penalty and a suspension of driving privileges for six months were also imposed.
The focus of the motion to suppress was whether or not the Plainfield police, while conducting an undercover surveillance of a high narcotic area during the middle of a June day, had an articulable suspicion to stop defendant when he left the area in his automobile and order him out of the automobile. We conclude that the police did not and reverse.
The relevant facts follow. On June 26, 1993, Detective Smallwood, an experienced narcotics officer with the Plainfield Police Department, was conducting an undercover surveillance of the 1100 block of West Third Street. The area was considered one of high narcotic activity. Equipped with binoculars and supported by a back-up team of four to six police officers including Detectives Michael Robert Hoose and Wayne Williams, Detective Smallwood observed a white Ford Tempo drive into the area and park at about 12:30 p.m. He observed, through binoculars from about 150 feet away, a male seated in the driver's seat; he did not recognize the man, whom he later identified as defendant. One or two minutes later, a female walked toward the car and got in on the passenger's side. Detective Smallwood had no prior contact with the female and knew nothing about either occupant of the car. He observed them for about five minutes. They were engaged in conversation. The female, later identified as Deborah Walls, got out of the automobile, looked around in every direction in what was described by Detective Smallwood as a suspicious manner, with a brown paper bag in her hand, which she held close to her body under her right arm like a football player carrying the ball. The bag was a brown grocery bag with the top rolled down, and was 10 inches wide by 5 to 6 inches high. The female was wearing a T-shirt and cut-off jean shorts. Because of her limited clothing, the detective concluded that she did not have the bag with her when she entered the car. He had seen on numerous occasions people transferring and passing narcotics in paper bags. As he put it, "The way she was looking, and she acted real suspicious, I just wanted her stopped." Detective Hoose and Williams were radioed and told to stop her.
Detective Smallwood also broadcast that the white Ford left the area. A minute later, Hoose spotted the female, jumped out of his car, ran up to her and immediately grabbed the bag from her. He looked inside and found a couple of hundred used crack vials in the brown paper bag. This information was radioed to Smallwood. He noted that used vials were recycled in the drug trade and that defendant may have more narcotic paraphernalia or drugs in the car. He then ordered the other officers to stop defendant.
Detective Williams, along with his partner, Detective Hawkins, responded. Detective Williams saw the vehicle coming towards his patrol car, made a U-turn, activated his emergency lights and pulled defendant's car over. No traffic violation had occurred. Detective Hawkins and Williams simultaneously exited their patrol car with Hawkins approaching the passenger door while Williams went to the driver's side and ordered defendant out of the car.
As defendant stepped out of the car, he blurted out to the detectives that he had "bottles", a street term for glass vials of cocaine, in his back pants pocket. Three glass vials of cocaine were retrieved by Detective Williams from defendant's right rear pants pocket. Defendant was then placed under arrest.
Defendant moved to suppress the vials of cocaine seized from him. The motion Judge found that the police had a clear articulable suspicion, based on what had been observed by Detective Smallwood before either Walls or defendant were stopped, justifying stopping both Walls and defendant to conduct further investigation. He thus concluded that the police had an articulable suspicion to stop defendant regardless of whether the intervening seizure of the brown paper bag from Ms. Walls was improper. In other words, the police had a right to stop defendant and ask him to exit the vehicle even if they could not rely on the evidence seized from Walls. Defendant's post-stop statement, which was unsolicited, then provided probable cause for the police to search and arrest him.
On appeal, defendant argues that the motion Judge erred by ruling that the police officers had a reasonable articulable suspicion that defendant was involved in criminal activity, and therefore had no right to stop his vehicle to make further inquiry by requesting that he exit the vehicle. The facts known to the police and relied on at the time of the stop, defendant asserts, did not give rise to a reasonable belief that criminal activity was under way.
An investigatory stop is permissible where the officers have a particularized and objective basis for suspecting the particular person stopped of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In determining whether such a basis exists, we must consider the totality of the circumstances known to the surveilling police. United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); State v. Thomas, 110 N.J. 673, 542 A.2d 912 (1988).
We first consider whether the motion Judge correctly held that the police had a right to stop defendant without considering the evidence seized from Walls. We are persuaded that the totality of the circumstances (not including the evidence seized from Walls) did not rise to the level of reasonable suspicion but rather Detective Smallwood acted upon a hunch, which does not measure up to the required standard. Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889, 1903, 20 L. Ed. 2d 917 (1968); State v. Demeter, 124 N.J. 374, 383, 590 A.2d 1179 (1991). The high crime area was the subject of a surveillance on a sunny June day just after noon. The defendant drove and parked by the curb. A female later entered his car. No transaction was observed. No exchange of money took place. No furtive gestures were observed. Two people were seen conversing in a parked car at noon. Neither defendant nor Walls was known ...