On appeal from the Superior Court of New Jersey, Chancery Division, Cumberland County, FJ-06-927-99A.
Before Judges Keefe, Steinberg and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2001
J.M., a seventeen-year-old juvenile, appeals from his conviction, upon a plea of guilty, to a charge of juvenile delinquency based upon an offense which, if committed by an adult, would constitute possession of a controlled dangerous substance. He was sentenced to serve a term of two years at the New Jersey State Training School for Boys in Jamesburg, suspension of his driving privileges and appropriate fines and penalties.*fn1 On appeal, J.M. challenges the legality of the search which resulted in seizure of the controlled dangerous substance upon which his plea and sentencing were based. N.J.S.A. 2A:4A-40. We conclude that the search violated J.M.'s rights and that his motion to suppress the evidence should have been granted. Accordingly, we reverse the adjudication of delinquency.
At the suppression hearing the following facts were developed. On September 30, 1998 at about 8:00 p.m. Vineland police officers Romano and Farabella were on routine patrol on Grape Street, a residential area near the center of town. Approximately two weeks earlier, Jessie Cruz, a tenant at 637 Grape Street, had approached Romano as he drove past her home and related that she was having a problem with people "hanging out" on her porch and dealing drugs. She asked the officer to get in touch with her if he saw people on the porch and told him that she would be able to identify the people that belonged there and those that did not. According to Romano, the police had received complaints about trespassers and narcotics activity in that area in the past, and Romano had actually made arrests at that location.
As the officers proceeded down Grape Street, Romano shined a spotlight on the Cruz residence and saw three people on the porch. He drove his police car into the driveway of the premises with the intention of making inquiry of the persons he had seen, notwithstanding the absence of any particular complaints that evening. Both officers proceeded from their vehicle onto the porch.
While Romano rang the doorbell to summon Ms. Cruz, Officer Farabella spoke with the people on the porch, none of whom appeared to be engaged in illegal activity. Cruz, in response to police inquiry, identified two of the porch occupants as her relatives, but said that she did not know the third person, the juvenile J.M. She did not ask that J.M. be removed. When asked why he was sitting on the porch, J.M. told the police that he was "hanging out." He was asked if he would agree to be searched and readily complied. Romano conducted a pat-down and checked J.M.'s pockets. Nothing was found. Romano pointed out to J.M. that there was a "no trespassing" sign in the window of the house. He then handcuffed J.M., took him into custody for the petty disorderly persons offense of defiant trespass, N.J.S.A. 2C:18- 3b, and transported him to the police station. At the station defendant was immediately subjected to a full search by another officer and drugs were found inside his right sock and under the arch of his left foot.
Although the defense offered testimony to contradict critical aspects of the events testified to by the officers, we need not review that testimony since the trial court did not find it credible. Rather, the court accepted the officers' testimony, as we have set it out at length above. The trial court found that the police could reasonably have concluded that J.M. was on the premises without the authorization of the tenant and that there was, therefore, probable cause to conclude that he was trespassing. As a result, they had the authority to take him into custody and subsequently search him at the police headquarters incident to his anticipated detention. On appeal, J.M. argues that the police did not have probable cause to take him into custody, and that even if they did, there was no justification for the subsequent full search of his person at the police headquarters.
We find that there was no probable cause to believe J.M. was a trespasser at 637 Grape Street. N.J.S.A. 2C:18-3(d) provides, in pertinent part, as follows:
A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(2) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders
In this case J.M. was present on the porch with two other individuals who apparently were relatives of the tenant. Although the tenant told the police that she did not know defendant, there was no testimony that she asked the police to remove J.M. or that the officers even asked her if that was her wish. More importantly, the officers never asked the two other people, who clearly did have permission to be on the porch, whether J.M. was known to them or was present by their invitation. Defendant's response that he was "hanging out" is not dispositive. The critical question was whether he was "hanging out" with permission, express or implied, of those who did have the right to be there. The mere fact that a no trespassing sign was displayed in the window did not make J.M. a trespasser. It is highly unlikely that J.M. just happened to be on this particular porch "hanging out" with two relatives of the tenant, without someone having invited him to be there. While conceivable, it belies common sense that he just wandered off the street to join two other young people who were not trespassers. We do not ask the police to conduct a mini-trial but simply to make a good faith evaluation of the circumstances presented, including appropriate inquiries of witnesses, before effectuating an arrest. In this case, we find that they failed to do so. Thus, J.M.'s arrest was impermissible and the resulting search invalid.
Even if we were to conclude that probable cause existed to arrest J.M., that would not end our inquiry nor change our ultimate conclusion that the evidence should have been suppressed. Once J.M. arrived at the station house he was promptly subjected to a full search, presumably incident to his anticipated detention. It is fundamental that any search ...