Before Judges Kleiner, P.G. Levy, and
The opinion of the court was delivered by: Kleiner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 1999
On appeal from Superior Court of New Jersey, Law Division, Essex County.
Pursuant to leave to appeal granted, the State appeals a decision suppressing evidence seized from defendant Milton Contreras, which led to the arrest of defendants Contreras and Mark Diaz. *fn1 We conclude that the motion judge correctly granted defendants' motion to suppress, as the police lacked a reasonable articulable suspicion of criminal activity to stop defendants, and accordingly, we affirm.
We will briefly review the facts which led to defendants' indictment on the following charges: second degree conspiracy, contrary to N.J.S.A. 2C:5-2 (count one); third degree unlawful possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10(a)(1) (count two); second degree possession with intent to distribute a controlled dangerous substance, contrary to N.J.S.A. 2C:35-5(b)(2) (count three); second degree possession with intent to distribute a controlled dangerous substance within 500 feet of a public housing facility, a public park, or a public building, contrary to N.J.S.A. 2C:35-7.1 (count four); and second degree employing a juvenile in a drug distribution scheme, contrary to N.J.S.A. 2C:35-6 (count five). On March 13, 1998, at approximately 3:00 p.m., New Jersey Transit Police Sergeant Laura Hestor, Officer Allen West, and Officer Frederick Williams were working the eleven-to-seven shift undercover on the New Jersey Transit trains. They were performing "consensual encounters." These "consensual encounters" are conducted because of alleged excessive transportation of illegal contraband, including weapons and drugs, on the trains.
The officers first observed defendants Contreras and Diaz and their companion, L.S., in New York Penn Station. Defendants seemed to be "paying special attention" to some uniformed Amtrak officers who were patrolling the station. *fn2 L.S. appeared to be "agitated at the fact that the police officers had walked by. He kept looking at them." Officer Williams claimed that none of the other travelers on the platform "seemed to have this kind of [re]action" to the uniformed officers. Defendants "began to talk, whisper, kind of back and forth and turning around and looking at the cops." The New Jersey Transit officers did not overhear any conversation between defendants, nor did they observe any suspicious activity, such as objects being exchanged between them or discarded.
There is some discrepancy as to when the decision to attempt a search was made. Officer Williams testified that once he and the other officers were on the train, they intended to stop defendants and seek permission to search them. However, Williams later testified that they did not approach defendants with an intent to search them. He continued, "[w]e don't approach people with an intent to search them. You know, once we ask questions and we speak with them, . . . it maybe [sic] determined that maybe we'll ask for their consent for a search. But we don't automatically approach them with the intent on searching them." The motion judge engaged in a colloquy with the witness regarding this matter. Williams attempted to clarify his testimony by stating that, based on the defendants' behavior when the Amtrak police were near, he and the other officers were "interested in speaking with [the defendants]."
The same issue arose during Sergeant Hestor's testimony. Defense counsel asked her if she and the other officers had decided before leaving New York Penn Station that they would search defendants in Newark. Hestor replied, "we made the decision that, yeah, we were going to talk to them and request a consent to search if they agreed."
When defendants' train arrived, the undercover officers followed them onto the train. The defendants sat together. The officers sat in the same car but apart from one another as they observed defendants. Officer Williams believed that L.S. "seemed to be particularly relieved that they were on the train . . . because he was doing things like looking up at the ceiling." The officers observed the three engage in conversation, but defendants did not do anything "out of the ordinary" during the short train ride.
As the train neared Newark, Officer West approached defendants, who were still seated, and identified himself by showing his badge and identification. He also pointed to his fellow officers. West spoke in a low tone of voice so as not to draw attention to the three individuals. West asked the three if they would "mind stepping off the train with [the officers] to speak to [them] for a few moments[,] although they were under no obligation to [do so]." Defendants agreed and accompanied the officers off the train. None of the officers could remember with certainty their exact positioning in relation to the defendants as they exited the train. No weapons were drawn and none of the defendants were handcuffed. Defendants allegedly were free to leave at all times.
According to defendant Diaz, the officers approached them after the train had come to a complete stop and asked them if they would "please get off the train." Diaz claimed that West did not advise them of their right to refuse to get off the train; he did not feel as though he had a choice regarding whether to comply with the request. Diaz felt compelled to exit with the police. Defendants had not intended to get off in Newark because the train would take them directly to Red Bank, their final destination. The officers did not learn of defendants' destination until the group had exited the train. Once off the train, the officers separated the individuals. West "dealt with" Contreras, Hestor spoke to Diaz, and Williams spoke with L.S. West informed Contreras of the problems with passengers using the trains to transport drugs and weapons. He then asked Contreras "if he would have anything of that type on his person." Defendant stated that he did not. West asked him if he would consent to a search, to which defendant responded "that he didn't have anything on him[,] so he had no problem with [West] taking a look." West then offered to conduct the search in the police complex, which is located one level down from the platforms, allegedly to spare defendant the embarrassment of being searched on the crowded platform. Contreras agreed.
Sergeant Hestor testified that she spoke to Diaz. Hestor also informed Diaz of the problems with drugs and contraband being transported on the trains between New York and New Jersey. She asked him if he had anything illegal in his possession, to which he responded that he did not. Hestor then explained what a consent-to-search form is and "asked him if he wouldn't mind signing it . . . ." She told him that he was under no obligation to do so and that, if he agreed to the search, he could stop the search at any time. Diaz agreed to sign the form. He also agreed to go to the police complex to be searched rather than being searched on the platform.
According to Diaz, it was Officer Williams who primarily spoke with him, not Sergeant Hestor. Diaz stated that none of the officers told him that he was free to leave at any time while they were on the platform. Diaz also claimed that no one informed him that he was free to refuse to be searched. Rather, the officers ...