On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-08-1385.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2009
Before Judges Baxter and Fall.
By leave granted, the State appeals from a March 6, 2009 order that granted defendant's motion to suppress the cocaine found on his person. The judge concluded that the police-citizen encounter at issue here was an investigatory stop, for which reasonable suspicion of criminal activity was required, and was not merely a field inquiry. The judge concluded that the uncorroborated anonymous tip upon which police relied did not satisfy the reasonable-suspicion standard, and he therefore granted defendant's motion to suppress. We conclude that the judge's findings of fact and credibility determinations are amply supported by the record, his legal conclusions are sound, and affirm.
At the suppression hearing, the State presented a detective employed by the Union City Police Department, who testified that he received an anonymous tip, relayed by a dispatcher, that a Hispanic male was "possibly engaged in the selling of narcotics" at the bar in question, located on New York Avenue in Union City. The anonymous tipster described the suspect's clothing as a dark sweatsuit with a red stripe, and reported that the male was accompanied by a tall, blonde, white female.
The detective testified that when he arrived at the bar, he waited for a uniformed officer to arrive as backup before entering, because he was dressed in plain clothes, although a police badge was visible around his neck. The two officers entered the small bar together, and, after the detective observed a man matching the tipster's description sitting next to a tall, blonde woman, he gestured with his hand for the man, later identified as defendant, to follow the officers outside. Defendant complied. The detective testified that if defendant had not walked out of the bar voluntarily, he would have "done nothing." Before directing defendant to exit the bar, neither the detective nor the uniformed officer conducted any surveillance or made any observations of defendant engaging in conduct that was suggestive of criminal activity.
According to the detective's testimony, he and the uniformed officer engaged in a five-minute conversation with defendant, while defendant stood ten feet away from them. When asked to describe the content of that five-minute conversation, the detective was unable to recall anything other than asking defendant his name and "how he was doing." He described the tone of that five-minute encounter as "conversational," explaining that the questions were neither "harassing" nor "overbearing." He denied ever accusing defendant of engaging in illegal behavior or restricting defendant's freedom of movement.
During the conversation, defendant "became very nervous, . . . intranquil, . . . moving from side to side[,] . . . putting his hands in his pocket and . . . he began perspiring." Defendant ignored the detective's command to remove his hands from his pockets. Believing that defendant had a weapon in his pocket, the detective began to approach defendant "to conduct a protective pat down over his clothing." As the detective approached, defendant stated, "listen, don't arrest me, I'll get rid of the stuff, just let me go." Concluding from defendant's statements that defendant had "something illegal in his clothing," the detective handcuffed defendant and arrested him. The ensuing search of defendant's person yielded a large quantity of cocaine.
In a detailed oral opinion, Judge Kracov concluded that the officer's testimony was not credible. The judge explained:
The [c]court cannot credit the officer's statement that the defendant exited the bar voluntarily and that the officer would have done nothing if the defendant had not left the bar. I found in assessing the officer's credibility that he appeared to be an aggressive person who was there to find a drug dealer. His demeanor and manner of testifying and the inconsistencies in his testimony led me to conclude that he testified to try to justify his actions and that he had an interest in the outcome and would say what was necessary to sustain the stop and arrest.
The judge supported his findings concerning the detective's lack of credibility with the observation that he could not believe, and found incredible, the detective's testimony that he could not remember anything of the five-minute conversation other than asking defendant his name and "how he was doing." The judge found that the officer "conveniently forgot" what he said to defendant after he ordered him out of the bar "because his words were accusatory and authoritative." Consequently, the judge rejected the officer's claim that the tone of the interaction was "conversational," and concluded that the officer's denial of a "harassing" or "overbearing" posture was "lacking in credibility."
The judge also pointed to the detective's changing descriptions of what happened when he approached defendant. The judge observed that the detective first testified that he never touched defendant before defendant pled with him to "just let [him] go," but then contradicted himself and testified that when he approached defendant, he grabbed defendant's hand and it was only then that defendant said "don't arrest me." Finally, the judge rejected the detective's testimony that he stayed ten feet away from defendant for safety reasons, observing that "it would have been more logical and safer to be closer to the person you are having a supposed non-confrontational conversation with so that you could stop that person from placing his hand in his pocket if you were concerned for your safety[.]" Consequently, the judge found that the detective "chose to testify" he was ten feet away "to somehow ...