August 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRANDON KINGSLEY STOKES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-12-2047.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 6, 2008
Before Judges R. B. Coleman and Sabatino.
Defendant, Brandon Kingsley Stokes, appeals his conviction of theft from a person, N.J.S.A. 2C:20-3, following a conditional plea agreement. Under that plea agreement, defendant preserved his right to seek review of the Law Division's denial of his motion to suppress evidence the police obtained from him following a warrantless investigatory stop. Because we conclude that the warrantless search was not permissible, we vacate the order denying suppression and defendant's conviction.
We recount the pertinent facts that emerged at the suppression hearing. At about 12:47 a.m. on May 7, 2004, two detectives and a sergeant of the West New York Police Department were on patrol conducting a routine neighborhood check in the vicinity of Washington and 61st Streets. The neighborhood consists of a mix of residential and commercial buildings, including a bar, a drug store and some family businesses. According to the officers' testimony, the neighborhood has had "quality of life" issues, arising from alcohol consumption, street fighting, urinating in public, and excessive noise. The three officers were all in plain clothes and patrolling in an unmarked Crown Victoria police car.
Just a week before, on April 30, five men had been robbed at gunpoint in that same neighborhood. The robbery had taken place at a welding business located at Washington and 61st Streets. The robbery victims had been initially accosted by two young men pointing guns, who were then assisted by six other accomplices. According to the descriptions provided by the victims, all eight of their attackers were black males about twenty to twenty-five years old, one of whom had dreadlocks. Three of the attackers were seen wearing military-style camouflage clothing. The descriptions provided no information about the suspects' heights, weights, physiques, facial hair, or whether they had tattoos.
As the Crown Victoria proceeded down 61st Street near Washington Street, one of the officers, Detective Garciga,*fn1 noticed two black men. They were conversing on the front steps at a two-family house located in the middle of the block. The area was partially illuminated by a traffic light on the street corner. One of the men, who was later identified as defendant, had dreadlocks. After likewise observing the two men, the other detective in the police car, John Viales, commented that the men appeared to match the description of the suspects in the April 30 robbery. Neither defendant nor the second individual with him, Nyreek Wimberly, were in camouflage garb.
There is no indication that defendant and Wimberly were drinking, talking loudly or otherwise engaging in any inappropriate behavior. As Detective Viales acknowledged in his testimony, "there was no basis to assume that they [defendant and Wimberly] were involved in any kind of criminal activity."
Detective Garciga slowly drove the Crown Victoria down 61st Street. As it approached, Wimberly got up and started to walk in a westerly direction on 61st Street. This direction was initially towards the unmarked car, but then he continued away from the car after it pulled up. Garciga stopped and double-parked the car, and all three officers got out. Detective Viales shouted, "police, stop" to Wimberly. Wimberly ignored the command and kept going.
Detective Viales and Sergeant Lomaro caught up with Wimberly. Viales placed his hand on Wimberly's shoulder, which caused him to stop. According to Viales's testimony, Wimberly seemed "nervous" and did not respond when Viales asked him why he had walked away. However, Wimberly did not physically resist the officers or display any violent gestures.
Viales then patted Wimberly down. As Viales testified, he did so "for [his] safety," being aware that guns had been used in the April 30 robbery at that location. The pat-down uncovered a loaded handgun in Wimberly's pocket. Viales shouted out to Garciga that he had found a gun.
Garciga, meanwhile, had approached defendant, who had come off the steps but who had not tried to walk away. According to Garciga, he started to talk to defendant in a manner that was "just normal." Garciga recalled that "[i]t was like an interview, you know, how are you, how's it going, where [are] you from, things of that nature." Defendant told Garciga that he was waiting for a ride.
Garciga then asked defendant "if he had anything on him as far as any weapons or whatever." Defendant responded that he had a pipe. Seeking to clarify that response, Garciga asked if defendant meant "a crack pipe or something of that nature." Defendant replied in the negative. He then began to remove a metal pipe from under his sleeve. As this was occurring, Garciga heard Viales shout that he had just found a gun on Wimberly. That prompted Garciga to grab defendant's wrists. He then placed defendant under arrest. The metal pipe, which was about nineteen inches long, was confiscated.
Following defendant's arrest, he gave statements to police implicating himself, Wimberly, and others in the April 30 robbery. Consequently, defendant challenges not only the legality of the police stop, but also his ensuing confession under the "fruits of the poisonous tree doctrine." Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S.Ct. 407, 416, 9 L.Ed. 2d 441, 454 (1963); see also State v. Johnson, 118 N.J. 639, 653 (1990).
Both Viales and Garciga acknowledged in their testimony that their sole basis for approaching defendant and Wimberly was the fact that the two men appeared to share characteristics with the description of the armed robbers from the week before. In particular, both were black males apparently between the ages of twenty and twenty-five, one of them with dreadlocks. The officers conceded in their testimony that the description was general and that it potentially covered many people. Detective Viales acknowledged that the description said nothing about any suspect having tattoos.*fn2
Defendant, Wimberly, and two other co-defendants were subsequently indicted for various crimes. The charges against defendant included armed robbery, possession of a handgun without a permit, possession of handgun for an unlawful purpose, and two counts of improper possession of a knife. Defendant moved to suppress the fruits of the warrantless police search.
The State argued to the motion judge that the police encounter with defendant and Wimberly arose out of a lawful investigatory stop on a public sidewalk, consistent with the precepts of Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968). Defendant, on the other hand, maintained that the stop and frisk was not justified by the Terry doctrine. Defendant contended that the police lacked a reasonable and articulable suspicion that he and his companion were engaged in criminality or were posing any danger while they were conversing on the stoop.
After considering the testimony of the two police detectives and the oral arguments of counsel, the motion judge denied the suppression motion. At the outset of his oral ruling, the judge acknowledged that he had initially thought that "the State was going to have an extremely difficult time with the search." However, the judge ultimately found that the officers had sufficient grounds to confront defendant and Wimberly and, as the situation developed, pat them both down.
The judge summarized his findings as follows:
You have two individuals sitting on a -- on [the] steps of a house and it's almost one o'clock in the morning, it's reasonable that the police would go to inquire. Again, a quality of life noise in a residential neighborhood at one o'clock in the morning.
The fact that the robbery had taken place a week before, and that they were very, very general descriptions, but was sufficient notice that one of the police officers alerted everybody. Not that they are involved, but they fit the general description. Just -- just be extra little careful. And as you get out you have the one defendant, Mr. Wimberly, leaving immediately upon seeing the approaching vehicle and the officers.
And again, I believe it was a Crown Victoria with an antenna in the back. I mean everybody recognizes undercover police vehicles, especially if they're a Crown Victoria, whether they're marked or not. It's enough to say what's going on, not necessarily enough to do anything else.
But when you have the actions of Mr. Wimberly and -- and it's sufficient now for the officers to become a little bit concerned about their -- their potential safety, and I -- I could see at that juncture just to make sure, the pat-down, because there is potential suspicion that something more than two people leaving a bar and having a conversation was taking place, and they found the weapon immediately as far as Mr. Stokes.
The officer was alone because [one of] the two individuals that went with him went in the other direction. And again, we're talking about somebody on private property, at almost one o'clock in the morning. And he's alone now and he's not getting very quick responsive answers that somebody would normally give if there was nothing to hide.
To answer the question about weapons even though no motions are being made, it's a reasonable request at that time. And again, having an 18 inch pipe up one's sleeve in a residential area at one o'clock in the morning is not indicative of appropriate use for that pipe. And under all the circumstances, I think that there was a reasonably articulated suspicion given by the police to be somewhat concerned about potential safety.
And I deny the Motion of the defense. [Emphasis added.]
Following the suppression hearing, defendant entered a conditional guilty plea to a third-degree theft offense, admitting that he had stolen a car amplifier from an auto body shop on April 30. All other counts of the indictment against him were dismissed by agreement. He was sentenced to a year of probation, plus various penalties. This appeal followed.
Under the Fourth Amendment of the Federal Bill of Rights and under Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981). The same is true of the warrantless seizure of a person or property. Terry, supra, 392 U.S. at 20-21, 88 S.Ct. at 1879-80, 20 L.Ed. 2d at 905-06 (seizure of a person); State v. Hemple, 120 N.J. 182, 217 (1990) (seizure of property).
The seizure of a person occurs in a police encounter if the facts objectively indicate that "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2389, 115 L.Ed. 2d 389, 402 (1991)). In applying this test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects.'" Id. at 165 (quoting N.J. Const., art. I, para. 7).
We are satisfied that both Wimberly and defendant were respectively "seized" in their encounter with the police, and that the protections of the federal and State constitutions were triggered by those encounters. With respect to Wimberly, Detective Garciga approached him and, more pointedly, commanded him to "stop!", identifying himself as a police officer. This interaction was clearly a seizure as a matter of federal and state constitutional law. Tucker, supra, 136 N.J. at 163-64; see also California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 1550, 113 L.Ed. 2d 690, 697 (1991) (under federal law, a seizure occurs either by the application of physical force, however slight, or by a show of authority to which a suspect yields). The seizure culminated when Detective Vialez placed his hand on Wimberly's shoulder and caused him to stop walking.
With respect to defendant, it is indisputable that he was seized at the time of his arrest. We are further satisfied that defendant was seized even before his arrest, during the course of his encounter with Detective Garciga on the stoop.
Initially, the encounter with defendant amounted to only a field inquiry, as Detective Garciga approached him and began asking him questions. See State v. Pineiro, 181 N.J. 13, 20 (2004) (defining a field inquiry as "the least intrusive encounter," which occurs when a police officer approaches a person and asks if he or she is willing to answer some questions). We discern no illegality or bad faith in the field inquiry here, at least in its initial phases. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing or accusatory in nature.'" Pineiro, 181 N.J. at 20 (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). During such a field inquiry, "the person approached . . . need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way." State v. Maryland, 167 N.J. 471, 483 (2001) (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed. 2d 229, 236 (1983)).
However, the initial field inquiry in this case progressed into an investigatory stop under Terry, as Detective Garciga intensified his queries of defendant while his partner was pursuing Wimberly. An investigatory stop, unlike a field inquiry, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355 (2002); see also Terry, supra, 392 U.S. at 19, 88 S.Ct. at 1878-79, 20 L.Ed. 2d at 904.
In particular, Detective Garciga's specific question asking whether defendant "had anything on him as far as weapons or whatever" escalated a benign field inquiry into a Terry investigatory stop, by insinuating that defendant might have contraband in his possession. See, e.g., State v. Costa, 327 N.J. Super. 22, 31 (App. Div. 1999) (officer's questions asking "what are you doing" and "[a]re you doing something that you're not supposed to be doing out here" converted field inquiry into a Terry stop); State v. Contreras, 326 N.J. Super. 528, 540 (App. Div. 1999) (asking defendants whether they had contraband on them escalated field inquiry into an investigative detention); State ex rel. J.G., 320 N.J. Super. 21, 31-32 (App. Div. 1999) (asking juvenile if there was "anything on him that he shouldn't have" converted field inquiry into a Terry stop). By the use of such accusatory words in the detective's questioning, as well as the surrounding context in which defendant's companion Wimberly was being pursued and told to stop, a person in defendant's shoes reasonably would believe that "he was the subject of a particularized investigation by the question presupposing the suspicion of criminal conduct." J.G., supra, 320 N.J. Super. at 31.
The State does not contest that Wimberly and defendant both were seized by the police, and that the encounters with each of them had escalated beyond a field inquiry into an investigatory stop. Rather, the State maintains that the investigatory stops of each of the two young men were constitutionally justified under Terry and its progeny.
The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, and to pat him down for the officer's safety, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriquez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).
Both the State and defendant agree that the linchpin to the Terry analysis in this case is Detective Viales's investigatory stop of Wimberly. Defendant acknowledges that once Detective Viales found the gun on Wimberly, the police would have the right to assure their own safety by frisking defendant, Wimberly's companion. That frisk surely would have turned up the eighteen-inch pipe hidden under defendant's shirt sleeve. Consequently, we focus on whether the police had sufficient "reasonable and articulable suspicion" to command Wimberly to stop, once he began to walk away from the stoop as the unmarked police car approached.
We are not satisfied that such a constitutionally-required reasonable and articulable suspicion is demonstrated here. As the testifying police officers acknowledged, the description of the armed robbers was quite general. The description only divulged the race and approximate ages of the suspects, providing no information about their heights, weights, physical builds, or the presence of distinctive marks such as tattoos. Although the State argues that the description of one suspect having dreadlocks conveys a distinctive hairstyle, we take judicial notice that such a hairstyle is commonplace and does not, in and of itself, provide sufficient detail to justify the police stopping every young black male who styles his hair in that manner.
The State also emphasizes that defendant and Wimberly were observed near the same intersection where the reported robbery occurred. The robbery was not, however, a fresh crime, having occurred a week before. See State v. Kuhn, 213 N.J. Super. 275, 281 (App. Div. 1986) (finding that "'[a] day-old burglary report does not transform a residential neighborhood into a no-man's land in which any passerby is fair game for a roving police interrogation'") (citation ommitted). Neither of the men were in camouflage apparel. They were apparently minding their own business and doing nothing wrong.
Although the State maintains that prior "quality of life" issues in the neighborhood warranted greater scrutiny of defendant and Wimberly, the record discloses that they were not drinking, yelling, urinating, or doing any of the things that might be considered quality-of-life offenses. They were simply conversing on a residential stoop, not that long after midnight, on a spring day. There was no informant's tip or other particularized information that these two young males had been involved in criminal conduct, or that they were carrying weapons or contraband.
The State further argues that Wimberly's failure to obey Detective Viales's command to stop justified the actions that the police officers took thereafter, and that Wimberly's non- compliance vitiates any lack of reasonable and articulable suspicion leading up to the command. We disagree.
An individual's mere flight from the police when they appear in his or her neighborhood is not a reliable indicator of criminality. As our Supreme Court recently reaffirmed, "[m]ere departure . . . does not imply guilt." State v. Ingram, ___ N.J. ___ (July 21, 2008) (slip op. at 27) (quoting State v. Long, 119 N.J. 439, 499 (1990)). An individual may simply wish, for purely benign reasons, to abstain from interaction with a law enforcement official or to become entangled in the problems of others who may be nearby.
As we have already noted, our courts have established that a person does not have any obligation to take part in a police officer's field inquiry, and he or she may simply walk away. Maryland, supra, 167 N.J. at 483. The fact that "some city residents may not feel entirely comfortable in the presence of some, if not all, police is regrettable but true." Tucker, supra, 136 N.J. at 169.
The State relies upon our Supreme Court's opinion in State v. Crawley, 187 N.J. 440, cert. denied, ___ U.S. ___, 127 S.Ct. 740, 166 L.Ed. 2d 562 (2006), to support its claim that Wimberly's failure to obey Detective Viales's order to stop eliminates any unconstitutionality in the stop order itself and mandates denial of the motion to suppress. We do not read Crawley to go that far.
Unlike the present case, the appeal in Crawley did not involve the denial of a motion to suppress evidence but rather a defendant's challenge to a finding that he had violated the obstruction of justice statute, N.J.S.A. 2C:29-1(a), when he ran away from police officers who had ordered him to stop for questioning. Id. at 443. Defendant argued that the police officers had lacked reasonable suspicion that he had been involved in a crime, and thus were not "lawfully performing an official function" under the obstruction statute when they commanded him to stop. Ibid. The Court rejected that legal argument, finding that the citizen's "obligation to comply with that command did not depend on how a court at some later time might decide the overall constitutionality of the street encounter." Id. at 443-44. The Court did not reach in Crawley whether the police did or did not possess "reasonable and articulable suspicion" to subject defendant constitutionally to a Terry stop. Id. at 451. The Court chose not to resolve that constitutional issue because it ultimately concluded that, for purposes of N.J.S.A. 2C:29-1, "a police officer acting on a dispatch may be 'lawfully performing an official function,' even if a court later determines that reasonable suspicion was lacking to justify the stop." Ibid.
The present appeal is distinguishable from Crawley in at least three important respects. First, as we have noted, Crawley did not arise from a suppression ruling. The Court expressly declined to decide the validity under the Fourth Amendment and the New Jersey Constitution of the officer's decision to stop defendant. Second, the police officers in Crawley acted upon a detailed report describing an armed man at a local bar, a report made less than two minutes before the police observed defendant, matching the description exactly, in the same neighborhood. Id. at 444. Here, by contrast, we consider a situation involving a robbery that occurred a full week earlier, with only a very general description of the robbers. Third, the person who disobeyed the police command in Crawley was the defendant himself. Ibid. In the present case, defendant by all accounts was cooperative with the police and had not disobeyed a police order to stop.
Given these significant distinctions, we conclude that Crawley does not control the present appeal. Nor does Crawley stand for the proposition that the police may ignore the Constitution and order anyone to stop without a reasonable and articulable suspicion for doing so. Were we to decide this issue in favor of the State, one can easily imagine that police officers at times might direct citizens to stop, in the hopes that they will disobey the order, as a means of manufacturing a lawful basis to apprehend and frisk them. Although we do not presume such bad faith actions would regularly occur, we likewise perceive no overarching constitutional justification for recognizing an exception to the warrant requirement that would ratify such invalid stops. Indeed, the requirements of Terry could become virtually meaningless if the law allowed for such an exception.
Similarly, we find the Court's post-Crawley opinion addressing police commands to stop in State v. Williams, 192 N.J. 1 (2007), also not on point. The defendant in Williams was commanded to stop by police who had received a fresh report of a man wearing a black jacket who appeared to be selling drugs at a particular city street corner at about 2:00 a.m. Id. at 4-5. Immediately after receiving that dispatch, two police officers responded to the identified address, where they spotted two men wearing black jackets in front of the identified residence. Ibid. After getting out of their patrol car, the police approached defendant for questioning, and asked him to place his hands upon his head as a safety precaution. Id. at 5. Defendant disobeyed the police directive, instead pushing one of the officers aside and fleeing on foot. Ibid. After running about a hundred feet, defendant stumbled, fell to the ground, and was handcuffed. Ibid.
Given this sequence of events in Williams, the Court ruled that defendant "was obliged to submit to the investigatory stop, regardless of its constitutionality." Id. at 10. The Court held that the defendant's obstruction of the police "constituted a break in the chain from the investigatory stop," which it presumed for the sake of argument was unconstitutional. Ibid. The Court emphasized that, instead of complying with the officers' request to raise his hands on his head, defendant "physically resisted," by "pushing [the officer] aside and taking flight, thereby endangering the police, himself and the public." Ibid. Consequently, the Court held, "[t]he taint from that initial stop was significantly attenuated by defendant's criminal flight[.]" Ibid. Hence, defendant's own aggressive misconduct in Williams caused him to forfeit his ability to complain about the illegality of the investigatory stop. Id. at 17-18.
The setting here is quite different from Williams. The police were not acting on a fresh report of potential criminal conduct that had been observed minutes before. Defendant's clothing did not match the camouflage garb described by the witnesses. He was not seen by police at the exact residence described in the dispatch. The person ordered by the police in Williams not only disobeyed the command, but responded with violence and then by running in flight. No such violence or running is present here. Most importantly, the person engaging in that misconduct in Williams was defendant himself. By contrast, defendant here was cooperative and non-threatening. For these many reasons, we do not think that the holding in Williams squarely applies.
In sum, we believe that the motion judge's initial impressions of this matter were indeed correct, and that defendant's motion to suppress should have been granted. Consequently, we vacate the order denying suppression, as well as defendant's ensuing conditional plea, and remand this matter to the Law Division for additional proceedings consistent with this opinion.
Vacated and remanded.