On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 98-09- 1805-I.
Before Judges Coburn, Collester and Alley.
The opinion of the court was delivered by: Alley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2002
Defendant appeals from his conviction for three incidents of third degree burglary of a motor vehicle, N.J.S.A. 2C:18-2, on May 13, 1998, in the Borough of Fairview (Counts One through Three) and for third degree theft of movable property in excess of $500, N.J.S.A. 2C:20-3(a) (Count Four). The sentencing judge imposed an extended term sentence of eight years imprisonment with a three-year period of parole ineligibility, and defendant also appeals from his extended term sentence. The appeal further brings up for our review defendant's appeal from the denial of his motion to suppress, and we address that aspect of the appeal first.
The evidence as developed at the motion to suppress showed that a report was made to the Fairview police department on May 13, 1998, shortly before 3:30 a.m., to the effect that commuter vans in a particular location in the municipality had been burglarized. The report also indicated that an individual in light-colored clothing had been seen leaving the area of the burglary. Three officers arrived in the area. They ascertained that the windows on three of the vans had been broken. One of the officers was sent to check outside the immediate area. In doing so, he observed defendant walking south on Bergen Boulevard. Defendant had a fanny pack around his neck and was perspiring and nervous. The officer drove up to defendant and asked him where he was coming from and where he was going. Defendant stated he was headed for a nearby tavern, but this struck the officer as strange because it was already 3:30 a.m., and he was aware that bars in the area closed at 3:00 a.m. After the officer looked at his watch, defendant stated that he was meeting someone in the tavern's parking lot.
The officer informed defendant of the burglary investigation and asked defendant to accompany him to the scene so that a witness could look at him. Defendant agreed. The officer decided to take defendant to the location in the police car, and before seating him in the police car he told defendant that he wanted to search the fanny pack for his and defendant's protection. Defendant replied, "Go right ahead." When the officer opened the bag he saw a coin changer, quarters, flashlight, and tape. The officer and defendant went via police car to the parking lot where the burglary allegedly had occurred. There, a woman was unable to positively identify defendant by his face, although she noted similarities between his build and that of the perpetrator. *fn1
The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. U.S. Const. Amends. IV and XIV. The New Jersey Constitution in almost identical language also protects individuals against such intrusion. N.J. Const. art. 1, ¶ 7. These constitutional strictures apply to all seizures of the individual, even if the seizure involves only a brief detention. Under both the federal and state provisions, a warrantless search is per se unreasonable "unless it falls within one of the few specific and well-delineated exceptions" to the warrant requirement. State v. Demeter, 124 N.J. 374, 379-80 (1991). One of the exceptions to the warrant requirement is an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and its progeny. Under Terry, if an officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion[,]" the officer is justified in making an investigatory stop. Id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906; Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 617 (1972); United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607, 616, (1975).
The reasonable suspicion that is necessary to justify an investigatory stop is "something less than the probable cause standard needed to support an arrest." State v. Thomas, 110 N.J. 673, 678 (1988). There must be "some objective manifestation that the suspect was or is involved in criminal activity." Ibid. When examining the facts contributing to an officer's suspicion of criminal activity, weight is given to "the officer's knowledge and experience" in addition to the "rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, 149 N.J. 1, 10-11 (1997). Merely because innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions if "a reasonable person would find the actions are consistent with guilt." Id. at 11.
We are satisfied that, at the time of the stop in this case, the officer had an articulable and reasonable suspicion that defendant was engaged in criminal activity. For example, prior to stopping defendant, the officer knew from the dispatch call that a man of average height and weight had been seen running from the crime scene toward Bergen Boulevard; a few minutes had passed since the burglary occurred, indicating that the perpetrator might well be nearby; and the suspect in question was wearing light-colored clothing. Moreover, from their observations of the broken windows of three of the vans at the crime scene, the police were aware that a crime probably had been committed. Additionally, when he first confronted defendant, the officer had observed him walking south on Bergen Boulevard within a few blocks of the crime scene. Defendant was the only person then walking on that street, at approximately 3:30 a.m. Defendant was sweating and appeared nervous, and had a fanny pack around his neck.
Even though defendant's presence so near the crime scene at such an early morning hour might have had a potentially innocent explanation, his appearance and mannerisms could reasonably have led to the conclusion that he had just taken part in the crime that had occurred only a short distance away. We conclude, in all the circumstances, that the trial court correctly determined that the officer had the necessary level of suspicion to conduct a Terry stop of defendant.
Our analysis as to the search of the fanny pack is as follows. Although the judge who determined the motion to suppress found that defendant had consented to that search, the assent defendant provided was not legally effective, and the search cannot be justified on grounds of consent. It is firmly established that under the federal constitution a consent to search need only be voluntary, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), whereas under our state constitution, as our Supreme Court has made clear, "where the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent." State v. Johnson, 68 N.J. 349, 353-54 (1975).
The evidence in this case was that the officer who encountered defendant asked him if he could check the fanny pack for the officer's own protection "and for himself," and defendant said, "Go right ahead." The record thus arguably establishes that voluntary consent was obtained. A missing element to its legal effectiveness, however, is the knowing nature of the consent, there being no evidence that defendant had been informed that he had the right to withhold consent. In these circumstances, the search of the fanny pack and seizure of its contents cannot be justified on consent grounds.
We next consider whether the search is sustainable, in the context of a valid Terry stop, as having been necessary to prevent immediate harm. We are satisfied that it is not so sustainable, because there was lacking here a requisite element: that the officer had a reasonable basis for concluding that defendant was armed. See, State v. Casimono, 250 N.J. Super. 173, 178-80 (App. Div. ...