Before Judges King, P.G. Levy and Lefelt.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 17, 1999
On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Defendant Stanley Goree appeals from his conviction on drug distribution charges and his extended-term sentence, nine years with a four-year parole ineligibility term. Defendant raises six claims of error on the appeal. We conclude that the Law Division judge erred in denying defendant's motion to suppress evidence seized in violation of his constitutional rights, R. 3:5-7, and reverse the conviction. We find that the police had no reasonable articulable suspicion which justified ordering defendant out of a neighborhood taproom and subjecting him to a "pat-down" on the sidewalk. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968). We reverse the conviction.
On October 10, 1996 at 7:50 p.m. Officer Brown of the Camden City Police Department was dispatched to Tioga and Van Hook Streets in Camden.
"We got a call that said there was an individual in a purple and green jeep in possession of a handgun." This was "an anonymous tip." More specifically, Brown testified he noted in his report the dispatch was in reference to a "black male, a purple and green MPV [multi-purpose vehicle], in possession of a handgun." The tow-truck report described a "1994 two-door tracker," not a jeep. In his report Brown described the vehicle as an "MPV 1994 Geotracker." This is all the information Brown had.
When Brown arrived at Tioga and Van Hook he did not see anything which confirmed the anonymous tip. He did see a green and purple MPV a block away at Tioga and Central Streets. Brown described that location as an "active drug area." The Tioga Bar is on this corner. Brown did see a black man, the defendant Goree, inside the Tioga Bar. He had seen the defendant driving the purple and green "jeep" several times before this. He had never seen another vehicle like this in the area before.
Officer Brown looked inside the jeep to see if it was occupied. He found no one and saw no gun. He then went inside the Tioga Bar and asked the defendant, "Are you driving the jeep outside?" Defendant answered, "No, but I have the keys." Brown then asked defendant to step outside. Once outside, Brown tried to pat-down defendant for weapons.
When questioned about how far he had proceeded in his attempt to pat-down the defendant, Brown testified that he "didn't get that far. After we asked him to put his hands, you know, he kept turning away like, you know -- what are you doing; I didn't do anything." Four officers were present by that time. When Brown and the defendant walked outside the bar, Brown testified that he did not recall defendant telling him he had recently been discharged from the hospital after having stomach surgery. Brown testified defendant told him this at a later time. Brown also testified that he did not see any bulges around defendant's stomach area.
Brown said that when he attempted to tell defendant to put his hands on the car in order to pat him down, defendant refused, became belligerent and did not want the officers to touch him. Brown also said that "[w]hen I took him to pat him down, he appeared agitated and he wouldn't keep his hands on the car, and then he finally turned and pushed me away and attempted ÄÄ it appeared he attempted to go into his pockets." At that point, Brown and the other officers who had responded to the scene attempted to grab defendant because they feared he had a weapon. Brown testified that "[w]hen we attempted to subdue him, he went inside . . . one of his pants pocket[s] and pulled out a clear bag and [there] appeared to be pink items inside of it, which was consistent with the package of the narcotics, and threw it to the ground." Brown also said that "I had ÄÄ the arm that he stuck in his pocket, that's the arm I had. I was trying to pull it away, and he's a big boy. He still got it in his pocket. He got his hand in his pocket." Brown testified that because of his size and strength, defendant was able to reach into his pocket and pull something out despite the fact that Brown had both hands on his arm and there were three other police officers trying to subdue him. Brown said that the defendant took the bag out of his front pocket and "kind of tossed it ÄÄ attempted to toss it while [he] still had his hand - it didn't go very far." The bag landed on the street by the curb. The police never found a gun, either on defendant or in the car.
The judge summarized his findings of fact based upon the testimony of the witnesses. He found Brown's testimony uncontradicted and credible.
[t]he officer testified that he received a dispatch from the dispatcher of an anonymous tip that a black male in a purple and green MPV had in his possession a handgun . . . . The officer went to that location and indicated he did not see the vehicle there, but he located a vehicle matching that description approximately one block away. He indicated that he recognized the vehicle as a vehicle driven by this defendant. He also indicated that there were no other vehicles that he's ever seen in that area matching that description of the black and the green. He saw that the vehicle was parked in close proximity of a bar located on the corner. He went into the corner bar and there he saw the defendant who he had previously seen driving that vehicle.
He indicated he spoke to the defendant and asked him whether or not he was driving that vehicle, and the defendant indicated that he was not driving it, but he did have the key to it. The officer then asked him to walk outside with him and he complied. The officer then indicated that they received a report. He was asking whether or not he could pat him down to see whether or not he had a weapon.
inherent with any type of handgun in the possession of someone that there's always a danger of someone being injured. The officers had received information from an anonymous tip. They corroborated that tip by locating the vehicle that was described in the tip. They also confirmed that the defendant, a black male matched the description that was given to them. And therefore while it is limited confirmation of the information, there's no doubt that this defendant was in fact - had possession of that vehicle because he indicated he had the keys for it.
The judge further found that
[t]he officers then told him to put his hands up on the car and were going to pat him down. The defendant turned away and began to put his hand in his pocket. The officer reacted to that believing he could possibly be reaching for a weapon and tried to restrain him from doing so. There was a struggle. And during the struggle while the officer was holding on to the defendant's arm, the defendant managed to pull from his pocket a . . . clear plastic bag containing ...