On appeal from the Superior Court, Appellate Division, whose opinion is reported at 339 N.J. Super. 229 (2001).
COLEMAN, J., writing for a unanimous Court.
The issue in this appeal is whether the police had probable cause to arrest William Dangerfield for defiant trespass and, if probable cause existed, whether the police should be permitted to conduct a full body search incident to an arrest for a petty disorderly persons offense.
The parties presented contradictory evidence of the confrontation that lead to the arrest. On November 2, 1999, at approximately 6:40 p.m., Detective Chapparo, Jr. of the Long Branch Police Department and his partner were in plainclothes and driving in an unmarked car, targeting Grant Court and Garfield Court Federal Housing Complexes for trespassing and drug violations. They observed a person sitting on a bicycle between two buildings in Grant Court in the rain. They got out of their vehicle and approached the person. Detective Chapparo, who was familiar with Dangerfield, recognized him as the person on the bicycle. When Dangerfield noticed the detectives approaching, he began to ride away. Detective Chapparo chased Dangerfield, grabbed his arm and stopped him. Detective Chapparo asked Dangerfield his reason for being in Grant Court and why he tried to flee, and Dangerfield responded that he was "doing nothing." Detective Chapparo placed Dangerfield under arrest for trespassing, and searched him, discovering two bags of cocaine in his front left pocket. Subsequently, Dangerfield was indicted for possession of cocaine.
Detective Chapparo had had two prior encounters with Dangerfield. Approximately one and one-half to two years earlier, Chapparo stopped Dangerfield in Garfield Court, and terminated his questioning when Dangerfield produced an identification card issued by the Housing Authority to support his assertion that he was one of its employees. Later, the detective learned from Dave Brown, Director of the Housing Authority at the time, that Dangerfield had been but no longer was an employee. The second encounter occurred when Detective Chapparo stopped Dangerfield as he was leaving Grant Court after visiting a friend. When confronted with the information obtained from Dave Brown, Dangerfield insisted that he worked for Randy Phillips, the Director of the Grant Court complex and produced an identification card. Detective Chapparo released him again. Subsequently, Phillips informed Detective Chapparo that Dangerfield did not work for the complex. Finally, when on another occasion Detective Chapparo arrested Dangerfield on unspecified charges several months prior to November 2, 1999, he was employed by Monmouth University.
The Grant Court and Garfield Court Federal Housing Complexes are plagued by drug activity. Clearly visible signs warn against trespassing. Controlled dangerous substances are used on the premises by individuals who tend to "hang out" in the complexes, and drugs also are sold from different apartments. There were established procedures for apprehending trespassers within the complexes, and management had provided officers with a list of all tenants for that purpose. When an individual is stopped, police are instructed to ask his or her purpose for being there. If the individual states that he or she is visiting someone on the list, they are usually released. Otherwise, police would bring the individual to the specific apartment they claimed to be visiting. If the resident did not know the visitor, or the visitor otherwise had lied, they would be arrested for trespassing.
Dangerfield testified that he had gone to the complex to visit his young son, Billy, who lived with his mother at Grant Court. Billy's grandmother also lived in the complex, but in a different building. Dangerfield testified that before the police arrived he had been visiting with his son, playing on a walkway between the two buildings where the child's mother and grandmother lived. His son went to his grandmother's house when it began to rain. Dangerfield said there were two other individuals in the vicinity, a woman, with whom he was talking, and another man. As the detectives approached, Dangerfield started to leave because "Chapparo always liked to hassle me sometimes."
Dangerfield testified that as he rode away, Chapparo ran up to him, grabbed him by the shoulder and told him to come back. Dangerfield insisted that Chapparo never asked him why he was in the housing complex or informed him that he was under arrest, but immediately searched his pockets and found the cocaine. Dangerfield claimed that Detective Chapparo had seen him in the area many times, and that if Chapparo had asked him what he was doing there on November 2, he would have told him that he was visiting his son.
Dangerfield produced two additional witnesses. The mother of his son, Tracy Fann, confirmed that she and her son lived in Grant Court at the time. She testified that until the date of his arrest, Dangerfield visited his son almost daily. Randolph Phillips, Director of Management for the Long Branch Housing Authority, confirmed that he knew Fann lived in Grant Court, and that he had no reason to think Dangerfield was not welcome there. Phillips also stated that Dangerfield used to clean the administrative office for the Housing Authority.
The trial court found credible the testimony of Detective Chapparo, Fann and Phillips and concluded that Dangerfield was not a trespasser because he was visiting his son and believed he was welcome. Accordingly, the court suppressed the evidence seized in the search incident to arrest. The State filed a motion for reconsideration, arguing that the arrest for defiant trespass was valid because based on probable cause. The court rejected that argument, concluding that probable cause did not exist and that Dangerfield was arrested based on nothing more than a hunch.
The State was granted leave to appeal, and the Appellate Division affirmed the suppression order in a published opinion. State v. Dangerfield, 339 N.J. Super. 229, 236 (2001). The Supreme Court granted the State's motion for leave to appeal.
HELD: The arrest of Dangerfield for trespassing was not supported by probable cause. The disposition of the Appellate Division is modified insofar as it holds that a petty disorderly persons offense should be treated differently than other offenses regarding the arrest power of the police.
1. Any warrantless search is invalid unless the search falls within one of the exceptions to the warrant requirement. One such exception is a search incident to a lawful arrest. That exception, however, requires that there be probable cause to arrest. Probable cause exists if at the time of the police action, there is a well grounded suspicion that a crime has been or is being committed. Based on the totality of the circumstances, the facts in this case fail to establish that probable cause existed to arrest Dangerfield. The facts known to Detective Chapparo do not support a well-grounded suspicion that Dangerfield was not licensed or privileged to enter or remain at the Grant Court Complex. Furthermore, after making his initial inquiry, Detective Chapparo arrested Dangerfield without following established police procedures for determining whether he was lawfully on the premises. Dangerfield was never asked whether he knew or was visiting anyone at the complex. Dangerfield's flight alone does not create reasonable suspicion for a stop, let alone probable cause. (Pp. 9-14)
2. The Appellate Division also held that Dangerfield was presumptively entitled to be released upon the issuance of a summons, rather than being arrested. The State argues that in so holding, the Appellate Division erroneously distinguished between non-custodial and custodial arrests. It maintains that N.J.S.A. 40A:14-152 authorized the arrest of Dangerfield as a "disorderly person," which includes petty disorderly persons, and that because Rule 3:4-1 requires the detective to take a person arrested without a warrant to the police station, the detective was permitted to search Dangerfield for safety reasons incident to the arrest. The Supreme Court agrees and will not disturb the authority of the police to arrest for disorderly and petty disorderly persons offenses that occur in their presence. Any limitation of the power of arrest for Code offenses should come from the Legislature. (Pp. 14-18)
3. Nonetheless, a search incident to an arrest is not limitless in terms of purpose or scope. The purpose of such a search is to protect the arresting officer and to prevent the destruction or concealment of evidence. Where, as here, an individual is not suspected of having committed a violent crime, but has instead been arrested for a non-violent offense, articulable facts of potential danger must be presented to justify a protective search for weapons. The Supreme Court modifies Rule 3:4-1(a)(1) and holds that if, after making a non-pretextual warrantless arrest for a disorderly or petty disorderly persons offense under the Code, the officer wishes to issue a summons instead of a warrant, he or she need ...