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State v. Citarella

June 26, 1998

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOSEPH CITARELLA, DEFENDANT-RESPONDENT.



Chief Justice Poritz and Justices Pollock, O'hern, Garibaldi, Stein, and Coleman join in this opinion.

The opinion of the court was delivered by: Handler, J.

Argued January 22, 1998

On appeal from the Superior Court, Appellate Division.

The defendant in this case was arrested by an officer from the Fort Lee Police Department. The circumstances leading up to his arrest call for the application of search and seizure law to investigatory stops. The trial court determined that the circumstances gave rise to a reasonable articulable suspicion that justified the initial stop of defendant by the police officer. The Appellate Division concluded that the police officer did not have a reasonable articulable suspicion to justify stopping defendant and thus reversed the trial court's denial of defendant's motion to suppress. Because there was a Dissent based on the view that the police officer had sufficient information to form a reasonable articulable suspicion that defendant was engaged in criminal activity, and therefore could be stopped, the case is before us on the appeal by the State as a matter of right.

I.

On August 31, 1992, at approximately 5:30 p.m., Fort Lee Police Officer Phillip Ross, in plainclothes and driving an unmarked car, was patrolling an area of Fort Lee near the George Washington Bridge. Because of a spate of recent burglaries in the area, Officer Ross was on the lookout for suspected burglars. He observed defendant, Joseph Citarella, riding a ten-speed bicycle off the south walkway exit of the bridge and then heading north on Hudson Terrace. Ross recognized Citarella from many prior contacts. Ross had arrested defendant several times for drug offenses and was present at his most recent arrest in January for driving under the influence of a controlled dangerous substance (CDS) while on the suspended list. Defendant had been arrested by Fort Lee Police on twenty-eight separate occasions. Ross knew that defendant lived approximately two miles south of the bridge --the opposite direction from which he was now headed. He had never seen defendant with a bicycle before and knew defendant generally drove an older model, four-door car.

Ross slowed and drove alongside defendant, who was pedaling slowly up a slight incline. When he and defendant made eye contact, defendant increased his speed, crossed Hudson Terrace, and jumped off the bicycle. Defendant then opened, without using a key, the rear cab of an unoccupied pick-up truck parked in the driveway of 2147 Hudson Terrace, a commercial building housing offices and a restaurant, and started to load the bicycle into the truck. He appeared to Ross to be quite nervous. Ross had never before seen defendant or any members of his family driving a pick-up truck. Ross testified that it was at this point that he decided he was going to stop defendant as a suspicious person.

According to Ross, it is common practice for drug purchasers to drive to Fort Lee, park their cars, and travel to New York on foot or bicycle to buy drugs. Ross further claimed that bicycle thefts were not uncommon in Fort Lee. Those factors, known to Ross from his seven years of experience with the Fort Lee Police Department and his training in narcotics investigations, contributed to Ross's decision to stop defendant and inquire about his activities.

Wearing his police shield on a chain around his neck, Ross got out of his vehicle and identified himself as a police officer. Defendant turned and stared at Officer Ross for several seconds and then quickly mounted the bicycle and pedaled away. Ross chased defendant on foot for about twenty feet before he was able to grab hold of defendant and the bicycle. Defendant fell to the ground, landing in a supine position. Ross radioed for backup and instructed defendant to stay on the ground and keep his hands out of his pockets until the other officers arrived.

When Fort Lee Police Officers Favaro, Ottina, and Ginsberg, and Sergeant Dalton responded moments later, Detective Ross assisted defendant to his feet. At that point, Ross noted that defendant was sweating profusely, despite the "relatively mild" temperature. He further noted that defendant's eyes were watery and bloodshot and his pupils were slow to react to light. Based on those observations, Ross believed defendant was under the influence of a CDS. He therefore arrested plaintiff and read him his Miranda rights.

Ross conducted a search of defendant incident to the arrest, finding a folded dollar bill inside his left front pants pocket containing a white rock-like substance which he believed to be crack cocaine. Subsequent laboratory testing confirmed his belief. Ross also found a transparent glass vial containing a liquid substance and a white powdery residue. Based on his training and experience, Ross believed the vial was for use as a "cooker" for the cocaine. After the police transported defendant to headquarters, he was strip-searched, revealing a tinfoil packet containing crack cocaine tucked inside the fly area of his jeans.

Defendant was indicted for third degree possession of a CDS in violation of N.J.S.A. 2C:35-10a(1). He moved to suppress the evidence obtained from Ross's search, alleging that Ross was not justified in stopping him. Based on evidence of the foregoing version of events, the trial court denied defendant's motion to suppress, concluding that Ross had lawfully stopped defendant. The court found that Ross had a reasonable basis to conclude that defendant was engaged in or about to be engaged in criminal activity based on (i) defendant's known status as an individual arrested many times by the Fort Lee Police Department for drug offenses and motor vehicle violations; (ii) the fact that defendant was heading north from the George Washington Bridge when Ross knew he lived south of that area; (iii) defendant's presence in a driveway not on his property; (iv) his seemingly imminent operation of a truck while his driver's license was suspended; and (v) defendant's hurried manner. The court further found that, after stopping defendant and observing his sweating and watery eyes, Ross reasonably concluded that defendant was under the influence of a CDS; Ross therefore had probable cause to arrest. The court concluded that the search of defendant was thus a legitimate search incident to arrest.

After the denial of defendant's motion to suppress, defendant pled guilty to the single count in the indictment. He was sentenced to five years in state prison, to be served consecutive to a five-year term simultaneously imposed for another third-degree possession conviction stemming from a separate occasion, arrest, and indictment.

On appeal, the Appellate Division reversed the trial court's denial of defendant's motion to suppress. The majority found that Detective Ross lacked the level of suspicion needed to support an investigative stop of defendant and that Ross's chase and apprehension of defendant was an illegal seizure, and the arrest and the search incident to the arrest were fruits of that illegality and must be suppressed. Dissenting, Judge Humphreys found that the totality of the circumstances necessitated a ...


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