On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 07-09-0644.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Miniman and Waugh.
Defendant Donald Wright appeals his conviction for third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(a)(1), based on a guilty plea entered after the Law Division denied his motion to suppress drugs found in his possession. We reverse.
We discern the following facts and procedural history from the record.
At approximately 2:00 a.m. on August 9, 2007, Cape May Special Police Officer Scott Krissinger observed Wright sitting on a bench in Wilbraham Park in West Cape May. Krissinger recognized Wright because he had "seen him around" and had helped process Wright at the police station on a prior occasion. Krissinger testified that Wright appeared nervous and "kept looking back over his shoulder at [his] patrol car."
Krissinger parked his patrol car at the entrance to the park. As he was getting out of the vehicle, he observed someone skateboarding in violation of the town's skateboarding ordinance. He stopped the skateboarder and asked for identification.
While Krissinger was speaking with the skateboarder, Wright walked past them towards a 7-Eleven across the street. Krissinger left the skateboarder and went to examine the area where he first observed Wright. On the bench where Wright had been sitting, Krissinger saw that the word "Zion" had been written in what appeared to be black marker.
Krissinger had never seen that particular graffito on the bench before, and suspected that Wright had written it because he had been sitting there. However, at the subsequent suppression hearing, Krissinger acknowledged that there was other graffiti on the bench, that he could not tell how long the "Zion" graffito had been there, and that he did not detect the odor of black marker ink on the bench at the time of his investigation. In addition, he testified that he did not know when he had last looked at the bench and that he had not previously inspected it for graffiti.
Because the writing of graffiti is an act of criminal mischief pursuant to N.J.S.A. 2C:17-3, Krissinger stopped Wright in the 7-Eleven parking lot across the street to question him about it. Krissinger testified that he observed Wright holding a plastic bag that was big enough to hold a black marker. Krissinger told Wright that he was investigating an act of criminal mischief and asked him if he had written the "Zion" graffito on the bench. Wright denied having done so. Krissinger also asked Wright if he had a black marker, to which Wright said he did not.
During the questioning, Wright was pacing and stated: "Quit fucking with me. You guys are always fucking with me." According to Krissinger, Wright tried to hand the plastic bag to another individual in the parking lot. As he was doing so, he said: "Here, hold this." Krissinger told Wright not to pass the bag and Wright responded by saying, "fuck this," knocking the skateboarder's license from Krissinger's hands, and walking away from Krissinger.
Krissinger testified that he told Wright to remain where he was, but Wright ran away. Krissinger began to chase Wright and used his radio to request backup. While in pursuit, Krissinger shouted: "Stop, police." At some point during the chase, Wright discarded the plastic bag by throwing it to the side of the road.
Krissinger was able to stop and arrest Wright with the help of another officer. The assisting officer retrieved the plastic bag, which contained six clear plastic bags appearing to hold crack-cocaine, and a clear wrapper containing a substance that appeared to be marijuana. There was no black marker inside the bag.
In September 2007, Wright was indicted on a single count alleging a violation of N.J.S.A. 2C:35-10(a)(1). He moved to suppress the drugs found in the plastic bag. Krissinger was the only witness at the suppression hearing on March 14, 2008. In addition to the events described above, he testified that, approximately ten days prior to the incident, there had been reports of graffiti in West Cape May. However, as far as he was aware, none of those reports involved graffiti in Wilbraham Park.
Defense counsel argued that the evidence seized from Wright at the time of his arrest should be suppressed because Krissinger had no evidence that Wright had committed a crime, and thus, there was no reasonable and articulable suspicion to conduct a Terry*fn1 stop. The State argued that there was reasonable suspicion justifying a brief investigative stop because there had been "a series of acts of graffiti in the area" and Krissinger stopped Wright to ask him questions concerning the graffiti after seeing him on the park bench. The State further argued that Wright's aggressive acts and attempt to flee escalated the suspicion, thereby creating probable cause for the arrest.
On April 18, 2008, the trial judge denied Wright's motion to suppress. The judge found that Wright's response to Krissinger, and Wright's subsequent actions, gave Krissinger reasonable and articulable suspicion.
In this Court's view, that response to a basic inquiry by a police officer, unwarranted, particularly given the time of day; the place, a public park; the fact that the defendant was the only person observed by the Officer in the park at that time. And upon asking, really, nothing more than community care taking questions, to receive that hostile response, verbally hostile response, likely, further sensitized the Officer as to what was going on and why it would possibly or could possibly be that this subject was responding in such a verbally aggressive way.
To the Officer, at the time, the defendant suddenly appeared ready to flee; and now, as another subject walks by the defendant attempted to hand the bag off, instructing the individual, quote, "Hold this. Here, hold this." Again, nothing ...