October 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
CALVIN JOHNSON, JR., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment no. 09-02-0213.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 2010
Before Judges Carchman and Messano.
By leave granted, the State appeals from an interlocutory order of the Law Division suppressing evidence seized as a result of a search of defendant Calvin Johnson's parked vehicle. The State asserts that the investigating police officers had reasonable suspicion to justify an inquiry and investigation of defendant leading to a "plain view" sighting of the weapon and cocaine recovered from defendant's vehicle. We disagree and affirm.
These are the relevant facts adduced at the hearing conducted in the Law Division. On September 6, 2008, at approximately 7:00 p.m., the New Brunswick Police Department received a 911 call during which a local city resident informed police that his son had witnessed a drug transaction near 87 Remsen Avenue and observed "two individuals that were selling narcotics from their mouth." The caller did not identify himself and provided a brief description that one of the individuals was wearing a raincoat while the other wore "black pants." The weather was inclement, and it was raining that evening.
Upon receiving the anonymous tip, the New Brunswick Police Department dispatched Officers John Langan and Jeff Monticello to the scene. Langan described the area surrounding 87 Remsen Avenue as "extremely high crime, where numerous arrests ha[d] been made for violent offenses and narcotic offenses." Subsequently, he and his partner, who were both uniformed, proceeded to the area in a marked police car where they observed a man, later identified as defendant, wearing a raincoat and standing outside a local pizzeria. The officer neither observed a second man dressed in black pants nor see anyone selling narcotics from the mouth.
As they exited from their vehicle and approached the pizzeria, the officers watched defendant engaging in conduct that, according to the officer, strongly indicated defendant possessed narcotics. Langan stated that fifteen years of experience had acquainted him with individuals who sell "rock cocaine" from "their mouth." He claimed that they keep liquid nearby so they can quickly take a sip and swallow the narcotics along with the liquid if police approach. These individuals frequently wait until "the last minute" to drink the liquid to avoid ingesting the narcotics.
[A]s I arrived, I observed an individual with the raincoat on. This individual had a can in his right hand. Upon s[ee]ing police, he placed this can up to his lips. He didn't take a sip from it. He didn't drink from it. He just held it there at his lips. And we were still in the car at this time.
Langan further explained that defendant kept the can of soda pressed to his lips until police were about 20 feet away, at which time defendant "t[oo]k a sip of the drink, turn[ed] and walk[ed] right into the store."
Langan and Monticello subsequently followed defendant inside the pizzeria. There, defendant immediately reached into his pocket even though the officers had not yet requested his identification or asked him any questions. Believing that defendant might possess a weapon, Monticello grabbed defendant's hand to prevent him from obtaining any items inside his pocket. Defendant produced, from his pocket, a car key to a Honda, a police-issued traffic summons and money, items that Langan then took from defendant and retained. Langan claimed defendant "handed" these items over to him; however, the record is unclear as to whether defendant voluntarily did so.
Although the officers could not establish any suspicious narcotics-related activity during their initial encounter with defendant, they detained him anyway to find out why he was at the pizzeria. In response, defendant explained to the officers he was heading home to Piscataway but had first dropped off a friend, pointing to a man, later identified as co-defendant John Franklin, who was working behind the pizza counter. Defendant later admitted he and Franklin did not know each other. At this time, Franklin began accusing the police of "harassment," prompting the officers to conduct a warrant check that revealed several active warrants for Franklin in New Brunswick and Paterson. Langan said defendant's behavior also changed during this time, noting that defendant began sweating, appeared very nervous and "his right leg [started] to tremble."
With Monticello guarding both defendants inside, Langan checked the police-issued traffic summons and discovered the vehicle the ticket described was unregistered. The summons, which was issued by the Plainfield Police Department, identified the vehicle as being a "blue Honda with a temporary PA tag." Langan then saw a Honda matching that description parked about ten to fifteen feet away from the pizzeria's entrance and proceeded outside to confirm his suspicions "out of curiosity." Once he established the Honda had expired Pennsylvania tags, Langan walked around the car to peer inside the passenger side window. Langan testified the windows were "slightly tinted" and "a little hard to see" so he had to use "[his] hands to cup [his] eyes." At that time, Langan spotted what appeared to be a silver handgun wedged between the center console and passenger seat.
Believing the car contained a concealed weapon, Langan entered the vehicle and confirmed the presence of a revolver. Langan could not verify how he gained entry, stating "I don't know if I had to use the key to unlock it or if the door was already open." Now armed with the knowledge defendant was traveling with a weapon, Langan left the gun in the car so as not to "alarm anyone" and re-entered the pizzeria to inform his partner they would be making an arrest. Langan admitted that before he returned inside, he failed to check whether the gun was loaded and instead just "closed the door." It was only established after defendant's arrest that the gun had "three rounds inside the chamber."
Once inside the pizzeria, Langan called for backup units to assist the officers with their arrest. Langan testified that a "minimum of eight men" are required to be on duty for city police matters at any given time and only two officers per sector. Moreover, he claimed the city encourages "for safety reasons [that] two officers should transport a prisoner." Langan and his partner did not "secure" defendant until after additional units arrived. Following defendant's arrest, Langan returned to the parked car and conducted a more extensive search of the passenger compartment to determine whether there were additional weapons. He did not find any and instead recovered six bags of cocaine inside the center console.
Langan claimed that even if he had not searched the vehicle for weapons, he would have been duty-bound to impound the car for being unregistered and having expired tags. He also asserted that if the car's occupant failed to produce credentials, the motor vehicle statute "authorize[s]" him to tow unregistered vehicles - parked or moving - off the road. Langan never asked defendant for ownership credentials.
Defendant provided a vastly different account of the events leading to his arrest. According to defendant, he went to 87 Remsen Avenue for pizza before heading home to Piscataway. As he waited for his meal, defendant stepped outside to smoke a cigarette and drink a soda he purchased inside. Since it was "raining hard," defendant said he wanted to "keep dry" and stood near the store's entrance. As he smoked his cigarette, defendant observed the approach of a police car. Upon seeing the officers walk toward the pizzeria, defendant claimed he finished his cigarette, took one sip from his soda and went back inside.
Once he re-entered the pizzeria, defendant claimed the officers "grabbed the back of my neck and . . . my arms so I couldn't move." Contrary to Langan's testimony, defendant explained that it was Langan who rummaged through his pockets and seized his car keys, the parking ticket and $33. Upon retrieving defendant's personal belongings, Langan walked out of the store and to defendant's car, which defendant claimed he had locked.
Throughout the course of his 10-minute interaction with the officers, defendant stated that no one asked him to explain his parking ticket or whether he was there to sell drugs. Instead, the officers immediately conducted a "pat-down" on defendant, confiscated his property and arrested him. Moreover, defendant claimed, contrary to the officer's version, that he was already placed in handcuffs before Officer Langan had re-entered the pizzeria after finding the gun in defendant's car.
Defendant also disputed that the interior of his car was visible from the street. On a dark and rainy night, such as the night in question, defendant claimed his tinted windows only enabled passers-by to see their "reflection" and nothing else. Moreover, he testified the lights do not go on when the door is opened, further precluding any bystander from seeing the vehicle's contents.
The State proffered three arguments in opposition to the motion to suppress. First, the State claimed police had reasonable suspicion to suspect defendant was engaging in criminal activity based on the anonymous phone call and the officers' observations of defendant's "evasive and curious conduct." Second, the State argued the gun was in plain view of the officer, who was lawfully standing by the vehicle. Finally, the State contended the gun would have been found through a lawful inventory search pursuant to State regulations.
In response, defendant countered that the State's arguments fail because no reasonable suspicion existed to authorize the police encounter. Moreover, defendant argued the citizen informant's tip lacked personal knowledge. Defendant further contended there were no exigent circumstances to justify the officers' failure to obtain a warrant.
The judge granted the motion and first found that the informant's tip lacked a "basis of knowledge" because it provided no prediction of "hard-to-know future events" or any other valuable information beyond defendant's wardrobe on a rainy day. The judge also dismissed defendant's odd behavior - the sweating, the shaking of his leg and the handing over of the car keys - as being acts consistent with either "a nervous guilty person or a confident innocent person."
As to the State's claim that the plain view doctrine supported the warrantless search, the judge reviewed pictures that cast doubt on the State's position because they showed the "car's windows are heavily tinted and difficult to see into without pressing one's face very close to the windows," adding that "[t]his fact alone does not support a finding that the gun was in plain view." She dismissed the plain view argument because the tip provided no "reasonable suspicion or some other indicia of criminality" and gave police no reason to suspect the car would contain contraband. The judge concluded the officers did not face an exigency and could have procured a warrant under these circumstances because they had possession of defendant's car keys. According to the judge, the police could have prevented anyone from tampering with evidence.
As to the last argument that the evidence would have been inevitably discovered, the judge concluded that the State had failed to show through "clear and convincing" evidence that police "procedure regarding towing is one that subjects all towed vehicles to an inventory search whether they are suspected of containing illegal contraband or not."
The State sought leave to appeal, which we granted. On appeal, the State raises the following arguments:
POINT I. THE POLICE HAD REASONABLE SUSPICION TO BELIEVE THAT DEFENDANT WAS ENGAGED IN CRIMINAL ACTIVITY; THE APPROACH OF DEFENDANT WAS LAWFUL
POINT II. THE GUN WAS IN PLAIN VIEW AND OFFICER LANGAN WAS AUTHORIZED TO SEIZE IT IMMEDIATELY, WITHOUT A WARRANT
POINT III. THE GUN AND NARCOTICS WOULD HAVE BEEN DISCOVERED UNDER THE INEVITABLE DISCOVERY DOCTRINE OR PURSUANT TO A LAWFUL INVENTORY SEARCH
When reviewing a trial judge's factual findings, we must "determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999). See also State v. P.S., 202 N.J. 232, 250 (2010). As to the legal determinations made from such findings, our review is de novo, and we accord the trial judge's determination no "special deference" even if her conclusion rested upon an "interpretation of the law and the legal consequences that flow from established facts. . . ." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
We first address the issue of whether the officers had reasonable suspicion to believe defendant was engaged in criminal activity sufficient to warrant an investigative stop as we view our resolution of that issue to be dispositive of this appeal.
Both the United States and New Jersey Constitutions prohibit unreasonable searches and seizures of citizens. U.S. Const. amend. IV; N.J. Const. art. I., ¶ 7. Searches and seizures conducted without a warrant are "presumptively invalid" and must fall within an exception. State v. Pineiro, 181 N.J. 13, 19 (2004) (citing State v. Patino, 83 N.J. 1, 7 (1980)).
While courts prefer a finding of probable cause to support a warrantless search or seizure, appropriate circumstances support inquiries based on less than probable cause. Pineiro, supra, 181 N.J. at 20. For example, a field inquiry permits police to "approach[ ] an individual" and see "if [the person] is willing to answer some [non-harassing] questions." Ibid. (citing State v. Maryland, 167 N.J. 471, 483 (2001)). A more intrusive encounter, an investigatory or Terry*fn1 stop, is permissible if "based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002). Even a "brief detention can constitute a seizure."
Information provided by anonymous informants may be a relevant factor when reviewing the totality of the circumstances resulting in police action. State v. Amelio, 197 N.J. 207, 212 (2008) (holding that "an informant's tip may assist the court in evaluating whether the police officer had reasonable suspicion to stop a person."). An informant's tip may be useful provided police can verify the informant's "veracity, reliability and basis of knowledge." Ibid. (citing Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415, 110 L.Ed. 2d 301, 308 (1990). But if the informer is a "concerned citizen" or a "known person," less scrutiny attaches to the informant's reliability because a citizen "acts with an intent to aid the police in law enforcement because of his concern for society or for his own safety." Amelio, supra, 197 N.J. at 212-13 (citing Wildoner v. Borough of Ramsey, 162 N.J. 375, 390 (2000). See also State v. Williams, 251 N.J. Super. 617, 626-27 (App. Div. 1991).
Here, the officers conducted an investigatory stop rather than a mere field inquiry because the officers did not first approach defendant to ask him non-harassing questions. Langan testified that his partner touched defendant's arm and prevented defendant from leaving the pizzeria, specifically telling him to "stay right there." The officers' conduct would only be appropriate if: first, the anonymous informant had an adequate basis of knowledge and was thereby reliable; and, second, the officers independently corroborated the tip.
An anonymous informant must provide to the police "a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or similar innocent details. . . ." State v. Golotta, 178 N.J. 205, 222 (2003) (citing United States v. Wheat, 278 F.3d. 722, 724 (8th Cir. 2001), cert. denied, 537 U.S. 850, 123 S.Ct. 194, 154 L.Ed. 2d 81 (2002)). If the tip lacks a basis of knowledge, one may "nonetheless be inferred from the level of detail and amount of hard-to-know information disclosed in the tip." State v. Zutic, 155 N.J. 103, 111 (1998) (quoting State v. Smith, 155 N.J. 83, 95 (1998)).
In her opinion, the trial judge correctly concluded there was no reasonable suspicion because the informant's tip lacked a basis of knowledge to support the presence of criminal activity. On appeal, the State counters that a basis of knowledge should have been presumed because the informant was a citizen-caller and ordinary citizens are inherently reliable when it comes to police matters controls.
The cases are inapposite. Neither Amelio nor Golotta, noting that citizen callers are unquestionably trustworthy, Amelio, supra, 197 N.J. at 214; Golotta, supra, 178 N.J. at 220-21, support the State's position. The Court expressly noted in Golotta that its holding could not "apply blindly to [all] search and seizure cases," and called for 911 callers to provide a "sufficient quantity of information." Golotta, supra, 178 N.J. at 220-22. Here, unlike the Golotta caller, who supplied to police nearly the entire license plate number of the suspect's vehicle, the New Brunswick informant gave nothing more than a generic description of two men standing outside a pizzeria without verifiable details. Nothing in the record demonstrates the caller's hearsay basis for believing his son truly knew that what he observed was criminal activity.
Golotta also limited its holding to situations that involve an "urgent manner of transmission," such as erratic driving on public roads. Golotta, supra, 178 N.J. at 225. The Court noted, "[H]ere the officer was confronted with a risk of imminent danger to defendant and to the public, a circumstance that allowed the officer less corroboration time than if the tip had alleged that an individual standing passively on a street corner was carrying a concealed weapon." Id. at 226. Nothing about defendant's conduct outside the pizzeria - whether he was smoking a cigarette or drinking a soda - or his subsequent behavior inside the store could be construed as being "urgent" enough to justify reliance on the informant's bare description.
In State v. Rodriguez, 172 N.J. 117 (2002), the Court held that police did not have reasonable suspicion to conduct an investigatory stop even though an informant tip had predicted defendant's location and described his appearance. Id. at 130-31 (citing Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375. 146 L.Ed. 2d 254 (2000)). The Court noted: An anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415, 110 L.Ed. 2d 301, 308 (1990). The United States Supreme Court has warned that "the veracity of persons supplying anonymous tips is 'by hypothesis largely unknown, and unknowable.'" Ibid. (quoting Illinois v. Gates, 462, U.S. 213, 237, 103 S.Ct. 2317, 2332, 76 L.Ed. 2d 527, 548 (1983)). That Court also has instructed that an informant's "veracity," "reliability," and "basis of knowledge" are "relevant in determining the value of his report." Id. at 328, 110 S.Ct. at 2415, 110 L.Ed. 2d at 308 (citation and quotation marks omitted). To justify action based on an anonymous tip, the police in the typical case must verify that the tip is reliable by some independent corroborative effort. Id. at 329-30, 110 S.Ct. at 2415-16, 110 L.Ed. 2d at 309.
Generally, "if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Id. at 330, 110 S.Ct. at 2416, 110 L.Ed. 2d at 309.
Stated differently, courts have found no constitutional violation when there has been "independent corroboration by the police of significant aspects of the informer's predictions[.]" Id. at 332, 110 S.Ct. at 2417, 110 L.Ed. 2d at 310. The analysis in any given case turns ultimately on the totality of the circumstances. Id. at 330, 110 S.Ct. at 2416, 110 L.Ed. 2d at 309. [Rodriguez, supra, 172 N.J. at 127-28.]
Here, the informant failed to provide any "hard to know" details about defendant's conduct beyond the fact he would be standing outside in a raincoat on a rainy evening. The informant did not make any predictions upon which police could test his reliability or describe circumstances supporting a conclusion that the target was involved in a drug transaction.
The State thereafter contends that the officers' extensive experience in narcotics and defendant's strange behavior independently corroborated the anonymous tip to satisfy the "totality of the circumstances" standard. It relies on Stovall, where the Court validated the investigatory stop of a female airline passenger. Stovall, supra, 170 N.J. at 362. There, police, relying on the informant's description and the officers' corroborating observations that she appeared nervous and provided fake information, detained and searched the woman. Id. at 351-52.
As the trial judge noted, the Stovall defendant's conduct was too ambiguous to definitively establish whether she was innocent or guilty. Likewise, here, defendant's behavior also conforms with both innocence and guilt. An individual wearing a raincoat standing in the rain outside a pizzeria drinking from a can of soda does not by itself suggest criminal behavior.
Independent corroboration was required to provide a basis for police action. While the informant did describe defendant, he failed to provide more details on the man in "black jeans" or the sale of narcotics from the "mouth." Consequently, Langan, based on his law enforcement background, assumed defendant maintained narcotics in his mouth because defendant was holding a can of soda "at his lips." This common behavior alone is insufficient to suggest even the possibility of unlawful conduct sufficient to warrant the investigative stop that ensued. Defendant's odd behavior inside the pizzeria also does not strengthen the State's claim. As the trial judge stated, defendant's "alleged shaking and nervousness may also be consistent with innocence or guilt." There was no independent corroboration warranting the stop, inquiry or action that followed.
At oral argument, the State conceded that a finding adverse to the State as to the initial stop and inquiry was fatal to the inquiry and search of defendant's vehicle that followed.
We conclude that the initial stop was an investigative stop that was made without sufficient basis. Even applying a "totality of the circumstances" analysis as urged by the State, we conclude that the judge correctly concluded that the motion to suppress should be granted.
Our conclusion makes it unnecessary to determine the other issues raised by the State. We note, in this regard, that our reading of the judge's decision leads us to conclude that she made a factual determination that the nature of the "tinted windows" precluded the officer from observing the weapon in the vehicle under the "plain view" doctrine.