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State v. Gavazzi

January 25, 2000


The opinion of the court was delivered by: DeLUCCIA, J.S.C.

Shortly before 8:55 p.m. on the evening of April 22, 1999, the domestic tranquility of Boris and Jolan Turchick was interrupted by a masked intruder who entered their home and robbed Mrs. Turchick of her handbag at knife point. After the intruder fled, the victims reported the robbery to the Wanaque Police. A limited description of the assailant was broadcast to Detective Sergeant Norton and Detective Cavallaro who were in the vicinity on an unrelated investigation. The police radio broadcast of the home invasion robbery at the Turchicks' residence only identified a single assailant and failed to mention the involvement of an automobile. Mrs. Turchick described her assailant as a "tall man, wearing a dark colored ski mask, a white sweater and dark colored pants."

According to the testimony of Det. Sgt. Norton, he and his partner began checking the immediate area of the incident, which he described as residential or "rural." Norton observed a dark colored vehicle traveling south on 4th Avenue, in a direction away from the Turchicks' residence. This was the only car encountered by the police that evening. There were two occupants in the vehicle, the driver and a front seat passenger wearing a "white shirt." This observation was made approximately three blocks from the Turchicks' residence.

At 9:01 p.m., Norton conducted a motor vehicle stop on 4th Avenue and the Boulevard. According to Norton, upon approaching the vehicle, he identified the driver as Gregory Gavazzi, and Cavallaro identified the front seat passenger as Samuel Reiff. Both defendants resided in the Borough of Wanaque. Norton testified that Cavallaro observed a large black bag on the floor of the passenger side of the vehicle. The police report indicated the bag was between the legs of defendant Reiff. Cavallaro asked Reiff who owned the handbag. According to Norton, Reiff claimed that he did not know since the bag was in the car upon his entry. The police report indicated that since Mrs. Turchick's assailant was reportedly armed with a knife, the defendants were ordered to exit the vehicle and lie face down on the ground for the safety of the officers. The handbag was retrieved from defendant's vehicle. Upon an examination, it was identified as belonging to Mrs. Turchick. The defendants were immediately placed under arrest.

While in custody, the police obtained a search warrant for Gavazzi's vehicle and also obtained statements from the defendants. Based upon this factual complex, the defendants now move the court to suppress the evidence seized both with and without the benefit of the search warrant as well as the statements obtained from defendants while in custody.

Encounters between the police and citizens may or may not require constitutional justification depending upon the surrounding circumstances. Not all encounters between police and citizens constitute seizures. State v. Davis, 104 N.J. 490, 497, 517 A.2d 859 (1986). Some street interrogations or field inquiries may be initiated by the police without a particularized suspicion that the person stopped has been or is about to engage in criminal wrongdoing. State v. Alexander, 191 N.J.Super. 573, 576, 468 A.2d 713 (App.Div.1983), cert. denied, 96 N.J. 267, 475 A.2d 570 (1984). Police may conduct a motor vehicle stop in the exercise of general community caretaking responsibilities, where no criminal behavior or motor vehicle violation is suspected. See State v. Goetaski, 209 N.J.Super. 362, 366, 507 A.2d 751 (App.Div.1986). However, such stops are to be "totally divorced from the detection, investigation or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed. 2d 706, 714-715 (1973).

The police may also conduct brief investigative seizures without a formal arrest and without probable cause. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905-906 (1968); State v. Davis, supra, 104 N.J. at 499, 517 A.2d 859. However, prior to instituting an investigative seizure, the police are required to articulate "a 'particularized suspicion' based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing." State v. Davis, supra, 104 N.J. at 504, 517 A.2d 859. Our courts have defined a seizure as a situation in which made the totality of the circumstances " 'a reasonable person would have believed that he was not free to leave.' " State v. Tucker, 136 N.J. 158, 164, 642 A.2d 401 (1994) (citing State v. Davis, supra, 104 N.J. at 498, 517 A.2d 859.)

The third situation involving police and citizen encounters in which a seizure is effected is an arrest supported by probable cause. Probable cause is defined as a reasonable basis for a belief that a crime has been or is being committed. See State v. Burnett, 42 N.J. 377, 386, 201 A.2d 39 (1964). Probable cause is a mercurial concept incapable of precise definition. "It is more than mere naked suspicion but less than the legal evidence necessary to convict... it is not a technical concept but rather one having to do with 'the factual and practical considerations of everyday life' upon which reasonable men, not constitutional lawyers, act." (citation omitted) State v. Waltz, 61 N.J. 83, 87, 293 A.2d 167 (1972).

The discussion of the issue raised by defendants precedes from the conclusion that when the police stopped the defendants' vehicle, they were seized within the meaning of the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. See State v. Seymour, 289 N.J.Super. 80, 84, 672 A.2d 1273 (App.Div.1996). As previously noted, brief investigative seizures do not require the traditional probable cause generally associated with formal arrests. Terry v. Ohio, supra; State v. Davis, supra, 104 N.J. at 499, 517 A.2d 859. Accordingly in this case, police were required to demonstrate a particularized suspicion based upon objective observations that the defendants had been or were about to engage in criminal wrongdoing. State v. Davis, supra, 104 N.J. at 504, 517 A.2d 859.

There is no bright line test to determine whether the police have acted within constitutional bounds in conducting a Terry type investigatory stop. In State v. Davis, supra, our Supreme Court relied upon the two-step analysis established by the United States Supreme Court in United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981). In reviewing police action relative to a Terry stop, the court is required to first consider the officers' objective observations. "The evidence collected by the officer is 'seen and weighed not in terms of laboratory analysis by scholars, but as understood by those versed in the field of law enforcement.' (citation omitted) '[A] trained police officer draws inferences and makes deductions ... that might well elude an untrained person. The process does not deal with hard certainties, but with probabilities.' (citation omitted)" State v. Davis, supra, 104 N.J. at 501, 517 A.2d 859.

The second prong of the test requires the court to determine whether the evidence " 'raises a suspicion that the particular individual being stopped is engaged in wrongdoing.' " (citation omitted) Ibid. In United States v. Cortez, supra, the United States Supreme Court cautioned that investigatory seizures based upon suspicion short of probable cause must be temporary and last no longer than is necessary to effectuate the purpose of the initial stop. The investigative methods employed should be the least intrusive means reasonably available to verify or dispel an officer's suspicion in a short period of time. The scope of the intrusion permitted obviously will vary depending upon the particular facts and circumstances of each case. United States v. Cortez, supra, 449 U.S. at 500, 101 S.Ct. 737.

Research has failed to identify any case in which the factual complex precisely parallels the circumstances of this case. The absence of legal precedent, however, is not surprising given the fact sensitive nature of the inquiry into investigatory or Terry stops. However, the State cites State v. Anderson, 198 N.J.Super. 340, 486 A.2d 1311 (App.Div.1985) in arguing the validity of the stop. In Anderson, a police officer on routine patrol received a report of an armed robbery having been committed by three black males at approximately 1:30 a.m. Responding to the report, the officer negotiated his police car onto the street where the robbery occurred. As he approached an intersection two blocks from the scene of the robbery, he observed another vehicle bearing an out-of-state registration occupied by two black males traveling in the opposite direction. Except for another police car, the vehicle occupied by the two black males was the only other car on the road. The police officer was unable to determine whether there was a third occupant in the vehicle due to tinted windows. Believing the occupants fit the description of the suspects, the officer proceeded to stop the vehicle. After the stop, a third occupant was discovered in the rear of the vehicle. The suspects were ordered out of the car, at which point the police discovered a weapon in plain view. The defendants were arrested and later identified as the assailants by the victims. Id. at 347-348, 486 A.2d 1311.

The Appellate Division concluded that the police lacked probable cause to arrest the defendants when their vehicle was first observed several blocks from the scene of the robbery. The court, however, upheld the stop. The court noted that it is the government's interest in effective crime prevention and detection which underlies the recognition of a police officer's authority to approach a person for the purpose of investigating possible criminal behavior in the absence of probable cause. Id. at 351, 486 A.2d 1311. (citation omitted). In light of that compelling societal interest, the court found the stop supported by a reasonable, articulable suspicion. Unfortunately, omitted from the court's opinion in Anderson are important details as to the suspects' descriptions as provided to the police, other than their race. Thus, Anderson does not resolve the issue raised here.

Critical to the resolution of the existence of a reasonable and articulable suspicion is the proximity of the stop in time and place to the crime in question. In this regard, several out-of-state cases are informative. In State v. Aillon, 202 Conn. 385, 521 A.2d 555 (1987) the Connecticut Supreme Court found the following circumstances justified a Terry stop. At approximately 1:00 a.m., a Hamden, Connecticut police officer received a radio dispatch of a possible burglary at a business establishment in his patrol district. En route to the scene of the reported crime, the Hamden police officer noticed an automobile, subsequently determined to be Aillon's, traveling without illuminated headlights. He then observed the vehicle being stopped by a police car from North Haven, Connecticut. The Hamden police officer radioed his dispatcher, requested information on the vehicle and its driver and requested, if possible, that the driver be detained pending an investigation of the burglary. He then proceeded without stopping to the scene of the burglary. Id. at 562-563.

The North Haven police had stopped the defendant's vehicle because of a loud muffler and unilluminated rear license plate. The officer merely gave the defendant an oral ...

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