March 13, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYSEN R. PRIVOTT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-08-00838.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges Fisher and King.
Defendant Tysen R. Privott was charged in Union County Indictment No. 03-08-00838, filed August 14, 2003, with possession of a controlled dangerous substance, N.J.S.A. 2C:35- 10a(1) (third-degree) (Count One); possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35- 7.1 (third-degree) (Count Two); and possession of a controlled dangerous substance with intent to distribute in or within 500 feet of a public park, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (third-degree) (Count Three). There were no co-defendants charged in this indictment.
Defendant filed an unsuccessful pretrial motion to suppress. R. 3:5-7. After a hearing the judge entered an order on May 7, 2004 denying the motion. After trial on January 11 and 12, 2006, defendant was found guilty on Count One, but not guilty on Counts Two and Three.
On March 31, 2006 the judge sentenced defendant to five years with a two-year period of parole ineligibility. On appeal defendant challenges the ruling on the suppression motion. We find the search constitutionally invalid and reverse.
At about 6 p.m. on May 13, 2003 Officer Jeffrey Plum was on routine patrol in Plainfield while assigned to the street crimes unit. He was in the area of Plainfield and Third Streets. This was an "extremely high narcotic area where officers make numerous arrests daily." This was also a "high area for gang violence" and "firearms."
The officer responded to an anonymous caller's tip "of a man in possession of a handgun" at the corner of Plainfield and Third Streets relayed by the police dispatcher. The description of the man with a gun was: "Tall, dark complexed [sic] Black male wearing a black and red ball cap and a black jacket." The officer was in uniform in a marked patrol car.
When Officer Plum arrived at Plainfield and Third Streets, he saw three black males standing on the southwest corner. His attention was drawn to them:
Q [by Prosecutor]: Why was your attention drawn there?
A [by Officer Plum]: Well, one, because person known to me as Tysen Privott matched the physical description of the person that the phone call came in on, however, the clothing description was slightly off.
Q: What was slightly off about it?
A: Instead of having a black jacket on, he had a red jacket on.
Q: Did he match in other respects the description?
A: In height, in height, complexion and build, yes.
Q: You said there were three men on the corner that you saw?
A: That's correct.
Q: Did any -- did the other two match the description that was given?
A: Not at all.
Q: When you say not at all, were they --you're talking about the physical description?
Q: You said also that you recognized one of them, Tysen Privott?
A: That's correct.
Q: How is it you recognize him?
A: I knew him from prior investigation.
Q: Were those investigations regarding what types of offenses?
A: Narcotic related.
Q: Were you also familiar with him from that area?
A: Yes, I am
Q: And how was it that you're familiar with him from that area?
A: Mr. Privott was known to me to be associated with a group of persons called, well, depending what the names are, it was Cash Money, or C.M.B., and call them the Projects now, or Lib Side, 314 Lib Side. I just knew the group of people that he hung out with.
Q: Was that one of the groups that you had mentioned earlier was groups that were hanging out in that area?
A: Yes, it is.
Q: Were those groups that were involved in, to your knowledge, the violence that included weapons offenses and shootings?
A: Yes, ma'am.
Q: Also, officer, based on your training and experience, do you -- is it common for weapons to be found in connection with narcotic offenses?
Q: Have you been involved in narcotics investigations where you also discovered weapons?
A: Yes, ma'am.
Q: Approximately how many?
A: That were actually -- Mine or just involvement?
THE COURT: Just involvement.
A: I can't actually -- give a rough number, be safe to say over 20.
Q: Now, you said you saw the three men on the corner, one of whom you recognized. What did you do at that time?
A: Well, actually all three people reacted immediately upon seeing us.
Q: When you say reacted, what do you mean?
A: When we pulling up [sic] to the corner and started to exit the car, they began to walk away.
Q: What did you do then?
A: Well, my -- my attention was drawn directly to Mr. Privott, due to the fact that he matched the physical description, and when he turned from me. From his demeanor he appeared very nervous. He turned from me, his hand immediately went towards his waistband.
Q: Approximately how close to the -- to Mr. Privott were you when you saw this motion?
A: 20 feet, tops.
The officer said he knew that guns were sometimes concealed in waistbands in spring and summer months.
Officer Plum detained defendant and frisked him. Plum went immediately to the waistband when "I saw [defendant] make the gesture." He found no gun but "did see a large piece of plastic sticking out about two inches from the waistband." The plastic bag contained "numerous knots of suspected crack cocaine."
The officer testified on cross-examination that he had arrested defendant in this area on prior drug charges but defendant never had a gun on those occasions and Plum had never seen defendant with a gun. On cross-examination the officer again described the scenario when he pulled up in the patrol car.
He was standing on the corner when we pulled up. My attention went directly towards him. We looked directly at each other.
As I was coming towards the corner, he turned from me and slid his hand up almost non-discreetly, not like a quick, but hand to the body and slowly began to walk away from me. The second we looked at each other he just turned and walk [sic] away.
THE COURT: You're saying his hand was held in his waistband area when he turned from you and hand went to the waistband, and kept it on the waistband area when he walk[ed] away from you?
[Officer Plum]: Yes, sir.
Defendant also testified at the suppression hearing. He said he was walking down the street when the police car pulled over; the officer ordered him up against the fence, and frisked him. He denied any gesture towards his waistband.
The judge decided the motion on May 7, 2004 -- seven days after hearing the testimony. The judge said:
The Court finds that the officers --although the officer's observations did not conform completely, in that the defendant had a red jacket on, the Court believed that the officer had reasonable suspicion to conduct an investigation stop. And seeing the furtive gesture towards the very area where the informant said that the weapon was located, the officer had an obligation to make an observation of the waistband area, which he did. And the Court finds that the officer's actions are appropriate.
And the motion to suppress will hereby be denied.
Officer Plum never testified to any information contained in the tip from the anonymous informant about "the very area where the informant said that the weapon was located." We find no support in the record for this conclusion.
We conclude that the State did not shoulder its legal burden of proof by a preponderance of the evidence that this investigatory stop and search of defendant was reasonable under the circumstances. As Justice Ginsburg stated for a unanimous Court: "The question presented in this case is whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer's stop and frisk of that person. We hold that it is not." Florida v. J.L., 529 U.S. 266, 268, 120 S.Ct. 1375, 1377, 146 L.Ed. 2d 254, 258 (2000) (Rhenquist, Ch. J. and Kennedy concurring).
New Jersey has to date refused to entertain a "firearm" or a "man with a gun exception" to the rule of individualized suspicion for a "stop and frisk," based on an anonymous tip. State v. Goree, 327 N.J. Super. 227, 245 (App. Div. 2000); see also State v. Richards, 351 N.J. Super. 289, 300 (App. Div. 2002). The dangers of an automatic firearm exception are related by Justice Ginsburg in J.L., supra, when she said:
But an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms. Several Courts of Appeals have held it per se foreseeable for people carrying significant amounts of illegal drugs to be carrying guns as well. If police officers may properly conduct Terry [v. Ohio, 292 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868 (1968),] frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain under the above-cited decisions that the police should similarly have discretion to frisk based on bare-boned tips about narcotics. As we clarified when we made indicia of reliability critical in Adams [v. Williams, 407 U.S. 143, 32 L.Ed. 2d 612, 92 S.Ct. 1921 (1972)] and [Alabama v.] White, [496 U.S. 325, 110 L.Ed. 2d 301, 110 2d 301, 110 S.Ct. 2412 (1990),] the Fourth Amendment is not so easily satisfied. [J.L., supra, 529 U.S. at 273-73, 120 S.Ct. at 1379-80, 146 L.Ed. 2d at 261-62 (citations omitted).]
In the case before us today, the anonymous tip was substantially inaccurate. It referred to a suspect in a black jacket with a gun. Defendant was wearing a red jacket and was not in possession of a gun. The informant or tipster never said the gun was in a waistband, as the judge thought he did.
Defendant simply walked away when the police arrived, while reaching inside his jacket. These acts are certainly consistent with innocent conduct and do not, standing alone, constitute a basis for an articulable suspicion of criminal conduct or otherwise corroborate an "anonymous tip" justifying a "stop and frisk." They are, standing alone, equally consistent with innocent conduct.
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