The opinion of the court was delivered by: Coleman, J.
ON APPEAL FROM Appellate Division, Superior Court
On appeal from the Superior Court, Appellate Division, whose opinion is reported at 327 N.J. Super. 436 (2000).
This is a warrantless search and seizure case in which defendant contends that he was selected for questioning by the police because of his race. The trial court declined to address that claim in denying defendant's motion to suppress evidence filed pursuant to Rule 3:5-7, and a divided Appellate Division affirmed. We reverse.
We consider the question whether defendant was selected for questioning because of his race to be critical. We hold that although a field inquiry may be conducted when the police have not observed the individual approached for questioning engage in any suspicious activities, such an inquiry is impermissible if it is race based. Our review of this record, moreover, persuades us that the police action of which defendant complains is not reasonably understood as anything but such a proscribed race- based inquiry.
The facts in this case were developed at a hearing on a motion to suppress evidence seized from the person of defendant. The evidence presented by the State reveals substantial internal conflicts and contradicts evidence presented by the defense. The following is a summary of that conflicting evidence.
On October 2, 1995, defendant Marlon Maryland and his stepbrother, K.R., a juvenile, arrived at the Rahway train station on a New Jersey Transit (N.J. Transit) train at approximately 5:50 p.m. along with other rush-hour commuters. Defendant and K.R. exited the westbound train with the other passengers. Meanwhile, two undercover N.J. Transit police officers, Paul Marshall and Patrick Clark, were patrolling the Rahway train station for the purpose of preventing vandalism and graffiti. The officers wore plain clothes, "jeans, sweat shirt, sneaker type, with a knapsack, just dressed like a commuter."
Officers Marshall and Clark both testified at the suppression hearing that they noticed defendant shove a brown paper bag into the waistband of his pants as he exited the train. Officer Marshall explained that he "was approximately ten feet, 15 feet away," when he saw defendant lift "his sweat shirt type and place [a brown paper bag] right about into his waistband area." Officer Marshall also testified that a third person accompanied defendant and K.R., although they denied knowing that individual. Officer Marshall said that "[t]hey were all walking together as if they were in a conversation with each other at a slow pace, nothing unusual. They were just moving slowly, moving toward the exit of the stairwell." The officers thought it was "very, very unusual that a male would stick something into his waist area like that," and they suspected defendant was "trying to conceal something[,] . . . either a weapon or contraband."
The officers approached defendant and the two other individuals at the bottom of the stairs and identified themselves as police officers. Officer Marshall stated: "I would like to speak to you individuals for a minute." Officer Marshall asked defendant what his name was and where he had come from. Officer Marshall testified that his suspicions were further aroused when defendant replied that he had just arrived from Jersey City, because there are no direct trains from Jersey City to Rahway. Although that is technically correct, Officer Marshall conceded on cross-examination that one can travel from Jersey City to Rahway by switching from the PATH train to a N.J. Transit train in Newark. Officer Marshall then inquired of the three men: "Are you carrying anything you shouldn't be carrying?" The officers testified that defendant then turned his body slightly and reached into his waistband area, prompting Officer Marshall to lunge for and grab defendant's hands. A brief struggle ensued and several bags containing marijuana spilled onto the ground.
Defendant testified in direct conflict with the police officers' observations. Defendant maintains that he placed the brown paper bag into his waistband while he and K.R. were still in Jersey City, not when he stepped off the train in Rahway. He asserts that the police officers approached him in the station and asked him several questions. Defendant claims, however, that the police threw the trio against the wall after defendant said they had traveled from Jersey City. Defendant contends that one of the officers grabbed him and asked to see a radio he was holding in one hand. That officer inspected the radio and, after finding nothing, placed it on the ground and searched defendant. That officer then found the brown paper bag in defendant's pants. The defense called K.R., who was arrested with defendant, as a witness. K.R. testified that he and defendant were walking in the direction of the train station steps when the police grabbed them from behind and told them to stand against a wall. K.R. testified that Officers Marshall and Clark identified themselves as police officers and immediately began searching them. K.R. testified that defendant had a radio in one hand. Although he never saw defendant with a brown paper bag in his hand, K.R. observed one of the police officers retrieve a paper bag from "[b]elow [defendant's] belt area."
Defense counsel argued in summation that this case turned on credibility because the prosecution offered three different versions of what had transpired in the train station and the defense offered still another version. In support of her position that the police officers' testimony should not be believed, defense counsel pointed to internal contradictions in the various police reports and the State's brief filed in opposition to the suppression motion. In his initial police report, Officer Marshall did not provide any reason for approaching defendant and his companions at the Rahway train station. Most notably, there was no mention in the report of defendant placing a brown paper bag in his pants before the officers approached defendant and his companions. That initial report, which was prepared contemporaneously with the arrest, described the stop as follows:
On 10-02-95 at 1750 hrs NJ Transit PD Anti- Crime Unit members P/O Clark and P/O Marshall [were] assigned a detail at N.J. Transit Rahway Train Station, Rahway[,] New Jersey.
The above officers were questioning three B/M/A when P/O Marshall observed defendant turn his body away from P/O's and attempt[ ] to push a brown bag deeper into his front pants.
Defense counsel also stressed that the State's brief, submitted twelve days before the suppression hearing, did not assert that the officers saw defendant place the bag into his pants. Instead, the brief states that Officers Marshall and Clark were aware of "a high incidence of narcotics activity at the train station, including the use of drugs and transporting of narcotics by train to Rahway." The brief also states that the officers had seen defendant and his companions at the station about one week earlier. In its brief the State contends that the reason for stopping defendant and his companions was the presence of three young black males at the station a second time in a week. The stop was made on a Monday during peak commuter rush- hour traffic.
Defense counsel emphasized that the version of events in which the officers allegedly observed defendant placing the brown bag into his pants as he exited the train first appeared in an arrest report that was prepared, according to defense counsel, approximately four days before the suppression hearing. That report is not dated. It was around that time that Officers Marshall and Clark met with two assistant prosecutors handling the suppression motion. Also according to defense counsel, after that meeting, an arrest report was prepared by Officer Clark. It states:
Actor observed exiting a N.J. Transit Train [a]t Rahway Station and place [sic] a brown bag in his waist band. When actor was stopped for questing [sic], actor pushed the Officer in an attempt to flee the seean [sic]. Actor was apprehended and found to be in possession of 33 bags of Marijuana and 100 vi-caps.
Counsel for defendant urged the trial court to grant the suppression motion by resolving the credibility issues against the police officers because there were at least three inconsistent versions presented by the State concerning what transpired at the train station. Counsel argued that the State's inconsistent and contradictory versions resulted from an attempt to conceal the real reason for the stop: that defendant and his companions were stopped because they were three young African American males who met the drug courier profile. The trial court declined to address that issue, stating "[t]hat's not part and parcel of this record."
The judge presiding over the suppression motion made the following factual findings and legal conclusions:
Credibility is in issue clearly in this case. I heard all the witnesses and I make the following facts in my mind credible: Officer Marshall and his colleague, Officer Clark, were, indeed, working as transit police officers in Rahway on that date and time, in ...