January 24, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHEVESSE COVIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-04-0816.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 13, 2006
Decided October 6, 2006
Motion for reconsideration is granted.
Submitted: January 4, 2007
Before Judges A. A. Rodríguez and Baxter.
Defendant Chevesse Covin was tried to a jury following the denial of his motions to suppress evidence and to exclude his written inculpatory statement to the police. He was convicted of second degree possession of a controlled dangerous substance (cocaine) with intent to distribute while within 500-feet of a public housing facility (Hobart Manor), N.J.S.A. 2C:35-7.1 and related offenses, which were merged. He was also convicted of fourth degree resisting arrest, N.J.S.A. 2C:29-2a. The judge imposed concurrent sentences aggregating fifteen years with a seven and one-half year minimum term. We reverse the convictions, concluding that the judge should have granted defendant's motion to suppress.
The following evidence was presented at a hearing on the motions to suppress and to exclude defendant's statements. At approximately 2:00 p.m. on October 17, 2003, Long Branch Police Detective Raymond Chaparro was patrolling in an unmarked patrol car. As he drove on Sampson Place, he saw a taxicab discharging a passenger in the middle of the street. Chaparro stopped his vehicle and recognized the passenger as defendant, with whom he had had a cordial relationship for a significant period of time. Defendant approached Chaparro and said "hi." They talked for a few seconds. Chaparro remembered that someone from the Street Crimes Unit was looking for defendant and relayed this information to defendant. Chaparro told defendant that he was going to contact the Street Crimes Unit. Defendant replied that "he didn't want something," and that he had three football games to go to on Sunday. Defendant asked Chaparro if he could go to his uncle's house for a minute. He promised to return. Chaparro replied, "it would only take a second." Defendant placed his football jersey draped over the passenger window of Chaparro's vehicle and began to walk away. Chaparro got out of his vehicle and told defendant that he did not need to leave his football jersey. Defendant took the jersey back and said he was going to walk over to his uncle's house, which he described as the blue house down the street. Chaparro said, "[J]ust wait one second." Defendant kept walking away.
Chaparro contacted headquarters and began walking about five feet behind defendant. Then Chaparro saw defendant reach into his left front pants pocket, remove a clear plastic bag containing a number of smaller blue bags, and secreted the bags in his jacket. Chaparro recognized the small blue bags as those used to package and sell cocaine. He told defendant, "[D]on't run[,] I see the bags." At this point, defendant "[t]ook off running." Chaparro ordered defendant to stop, gave chase and radioed for backup. During the chase, Chaparro lost sight of defendant. Eventually, Chaparro apprehended defendant and searched him. There was no contraband on defendant's person. Chaparro directed the backup unit to secure the area of Joline and Long Branch Avenues, where he had lost sight of defendant during the chase. Chaparro went to that location and found in some bushes three bags containing a substance that he suspected to be cocaine.
Defendant was arrested and taken to police headquarters. After being given the Miranda warnings,*fn1 defendant agreed to waive his right to remain silent and to speak to Chaparro and Detective Jeffrey Pilone. In a written statement, defendant stated that he was walking away from Chaparro towards his uncle's house "[t]o put the shit up." Defendant admitted throwing "three bags" in the bushes as he was being chased by Chaparro; one containing "solid rock" cocaine, one with "a little substance" and one with "blue bags." Defendant also admitted that he was planning to sell each small blue bag of cocaine for $10.
At the hearing, defendant testified and conceded that he approached Chaparro on Sampson Place and engaged him in conversation. Chaparro told him that someone from the Street Crimes Unit wished to speak with him. According to defendant, he asked Chaparro if he had any warrants. When Chaparro said no, defendant walked away. Defendant alleged that Chaparro got out of his car and came "running" or "skipping" towards him. Defendant ran. Defendant denied that he transferred drugs from one pocket to another.
With respect to his inculpatory statement, defendant alleged that Chaparro offered to get him a low bail, and not to charge him with possession of CDS with intent to distribute in a school zone if defendant would "work with" him. Defendant denied giving any formal statement to the police. He testified that he signed, at Chaparro's direction, a blank piece of paper.
The judge denied defendant's motion to suppress both the cocaine found in the bushes and defendant's inculpatory statement. The judge found Chaparro's testimony to be credible and defendant's incredible. The judge concluded that Chaparro's actions constituted "less than an investigative stop" and were proper. The judge also found that defendant abandoned the cocaine when he threw it into the bushes, and therefore the police acted lawfully in seizing it. With respect to defendant's inculpatory statement, the judge utterly disbelieved defendant's testimony that he had only signed a blank piece of paper at Chaparro's behest.
On appeal, defendant contends:
THE TRIAL COURT SHOULD HAVE SUPPRESSED ANY DRUGS WHICH THE DEFENDANT DISCARDED DURING THE ENSUING CHASE. U.S. CONST. AMEND. IV; N.J. CONST. (1947), ART. I, § 7.
A. The Encounter Quickly Escalated From A "Field Inquiry" To An "Investigative Stop," Because (1) Once Chaparro Said That He Thought [Defendant] Was Wanted For Questioning By The Street Crimes Unit, and Was Going To Call The Unit For more Information, The Conversation Took An Accusatory And/Or Investigatory Tone And (2) A Reasonable Person In [Defendant's] Position Would Not Have Felt Free To End The Encounter By Simply Walking Away.
B. Neither Chaparro's Hunch That "Something Was Wrong" Nor His Recollection That Someone In The Street Crimes Unit Wanted To Talk To [Defendant], Provided Chaparro With The Articulable Reasonable Suspicion Of Criminal Activity That He Needed To Detain [Defendant].
1. Chaparro's mere hunch that "something was wrong" did not provide the reasonable suspicion he needed to detain [defendant] while he investigated further.
2. Chaparro's recollection that an officer in the Street Crime Unit wanted to talk to [defendant] did not provide the reasonable suspicion he needed to detain [defendant] while he investigated.
C. Since [Defendant] Was Illegally Seized When Chaparro Started To Follow Him As He Walked Away From The Unmarked Police Car, Any Evidence [Defendant] Discarded Thereafter Was Inadmissible At Trial.
We agree and reverse.
We begin our analysis with a review of well-settled principles. It is axiomatic that a warrantless search is justified only if it fits one of the few well-delineated exceptions to the warrant requirement. State v. Maryland, 167 N.J. 471, 482 (2001), Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed. 2d 854, 858 (1973). One exception, based upon the decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968), is "the right of a police officer to conduct a brief, investigatory stop." State v. Morrison, 322 N.J. Super. 147, 151-52 (1999). However, an officer may conduct a Terry stop only if the officer "is able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." Id. at 152. Thus, there must be "'some objective manifestation that the suspect was or is involved in criminal activity'" in order for a Terry stop to be considered valid. State v. Arthur, 149 N.J. 1, 8 (1997) (quoting State v. Thomas, 110 N.J. 673, 678 (1988)).
A Terry stop is to be distinguished from a "field inquiry." Our Supreme Court has noted that:
Police do not violated the Fourth Amendment by "merely approaching an individual on the street or in another public place [and] asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering as evidence in a criminal prosecution his voluntary answers to such questions." [State v. Davis, 104 N.J. 490, 497 (1986), (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed. 2d 229, 236 (1983)).]
Such a field inquiry may be reasonable and proper, if a police officer observes a person in a public place, and based on experience, concludes that some investigation is in order even though the person's behavior does not reach the level of "highly suspicious activities." State ex rel. J.G., 320 N.J. Super. 21, 27 (App. Div. 1999); see State v. Sheffield, 62 N.J. 441, 446 (1973), cert. denied, 414 U.S. 876, 94 S.Ct. 83, 38 L.Ed. 2d 121 (1973).
Here, the core disputed issue is whether the interaction between Chaparro and defendant was a field inquiry or a Terry investigatory stop. If the former, no articulable suspicion showing is required. If the latter, a reasonable suspicion must be demonstrated by the police officer. To determine this issue, the courts analyze whether: (1) the officer's questions were conversational or accusatory in manner; (2) the officer made demands or issued orders, and (3) the officer's manner was either overbearing or harassing in nature. State v. Egan, 325 N.J. Super. 402, 409 (Law Div. 1999).
Here, we conclude that interaction between the two acquaintances started as a field inqiry, but became a Terry stop. Once Chaparro said that he was going to call police headquarters to find out who wanted to speak to defendant, the field inquiry started to become a Terry investigatory stop. Chaparro's comments presupposed criminal activity. A reasonable person in defendant's situation would believe that the Long Branch Street Crimes Unit was investigating a crime. Moreover, a reasonable person in defendant's shoes would not have believed he could terminate the encounter at will and walk away. Defendant asked Chaparro if he could leave for a minute to go to his uncle's house. Chaparro replied that it would only take a second. His reply was an implicit "no" to the request. Thus, defendant was not free to leave. This completely turned the encounter to an investigatory stop. J.G., 320 N.J. Super. at 28. Therefore, Chaparro's response required objective justification for the detention. State v. Tucker, 136 N.J. 158, 164 (1994).
Furthermore, Chaparro reiterated his instruction for defendant to wait. When defendant left a jersey draped on the window of the police car, Chaparro told defendant that he did not need to leave that item. When defendant took the jersey, saying that he would be back, Chaparro said "[J]ust wait one second."
In addition to denying defendant's request to leave briefly, Chaparro started to follow defendant as he walked away from the police car. According to Chaparro, at that moment, "I knew something was wrong. I didn't know what it was at the time but I knew something was wrong." This is a hunch, see United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed. 2d 1 (1989), not an articulation of factors that would justify a reasonable suspicion of current criminal activity. Ibid., Brown, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed. 2d 357, 362-63 (1979). All of these occurred before Chaparro saw defendant remove a clear plastic bag from his pocket and conceal it in his jacket.
We reject the scenario that Chaparro had a reasonable suspicion at this point, of defendant's involvement in criminal activity based on his belief that the Street Crimes Unit wanted to question defendant. A stop made in reliance on a police departmental report, flyer or bulletin violates the Fourth Amendment unless the police officer or officers who issued the flyer or bulletin or report possessed a reasonable suspicion justifying a stop. State v. Spencer, 221 N.J. Super. 265, 269 (App. Div. 1987) (citing United States v. Hensley, 469 U.S. 221, 233, 105 S.Ct. 675, 683, 83 L.Ed. 2d 604, 615 (1985)). As noted in Spencer:
The mere fact that [the officer] acted on a report circulated within his department does not mean that he had an articulable and reasonable suspicion. If the information in the hands of the police was mere hunch or rumor or was otherwise insufficient to support an articulable and reasonable suspicion, that information would not justify a stop even though [the officer] relied on it in good faith to stop the car. The reliability of the information is not enhanced simply because it is communicated through police channels. [Id. at 268.]
The State did not present any evidence from an officer in the Street Crimes Unit.
Neither the "plain view" nor the abandoned property exceptions apply to this case. In State v. Tucker, 136 N.J. 158 (1994), Tucker discarded a bag containing drugs during his flight. The issue before the court there, as here, was whether the initial pursuit itself was unlawful, thereby rendering the evidence seized after the chase had commenced inadmissible. Id. at 162-63. The Supreme Court first concluded that pursuant to New Jersey's constitutional standard, the police had seized Tucker by pursuing him. Id. at 166. The Court also concluded that Tucker's flight by itself was not sufficient to provide the police with reasonable suspicion. Id. at 169. Rather, the State would need to point to additional factors, and that the police had "knowledge of a prior criminal history on the part of [the suspect]." Id. at 170. Thus, Tucker holds that if a stop is unlawful, any property discarded by the defendant is not deemed abandoned for Fourth Amendment purposes. Id. at 172-73. In other words, when contraband is discarded by a defendant in response to an improper police stop, the defendant retains his interest in that property and it can no longer be deemed abandoned property. See State v. Farinich, 179 N.J. Super. 1 (App. Div. 1981), certif. denied, 88 N.J. 497 (1982) (holding that property is abandoned pursuant to the Fourth Amendment, when a defendant voluntarily discards or relinquishes his interest in the property thereby, no longer retaining a reasonable expectation of privacy).
Thus, to justify an investigative detention, flight from police must be coupled with additional factors indicative of criminal activity. See, e.g., Morrison, 322 N.J. Super. at 154 (holding that police responding to call in a high narcotics area and recognizing fleeing men as subjects of prior complaints of drug-dealing were justified in a chase); State v. Ruiz, 286 N.J. Super. 155, 163 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996) (holding that chase was appropriate when defendant was known to police as someone previously involved in drug-dealing and was walking down center of roadway late at night in drug-trafficking area); State in the Interest of J.B., 284 N.J.
Super. 513, 516, 518 (App. Div. 1995) (holding that police acted properly when on special, anti-loitering patrol, received anonymous tip that drugs were being sold at high drug activity intersection, and found large group of people congregating there late at night). These principles were reiterated in State v. Stovall, 170 N.J. 346 (2002) and State v. Crawley, 187 N.J. 440 (2006). Here, the flight was not coupled with any additional factors indicative of criminal activity.
Nor can the seizure of defendant be justified by the plain view exception. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed. 2d 347 (1987). Because the illegal seizure of defendant precipitated his discarding of the drugs during the chase, the evidence should have been suppressed as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed. 2d, 441, 455 (1963).
Defendant also contends that:
SINCE THE TRIAL COURT FAILED TO CONSIDER DEFENDANT'S CLAIM THAT HIS CONFESSION WAS MADE IN RESPONSE TO THE DETECTIVE'S PROMISE OF LENIENCY, THIS COURT SHOULD REMAND THE MATTER WITH INSTRUCTIONS THAT THE TRIAL JUDGE MAKE SPECIFIC FINDINGS AS TO THAT CLAIM.
We reject this contention, agreeing with the State that the judge's credibility findings were based upon substantial and credible evidence in the record. R. 2:11-3(e)(2), State v. Johnson, 42 N.J. 146, 162 (1964). We are not free to make our own credibility determination. State v. Locurto, 157 N.J. 463, 471 (1999). Nevertheless, we conclude that, in the interests of justice, at the retrial, the judge should consider the impact of our holding, which suppressed the illegal drugs based on our conclusion that defendant was illegally seized.
The conviction is reversed and the matter is remanded for trial to the Law Division, Monmouth County. At the retrial, the admissibility of defendant's written statement to the police shall be considered anew, taking into consideration the holding of this opinion. We express no view on how the retrial judge should rule on this issue.
Reversed and remanded.