Argued October 8, 2013
On certification to the Superior Court, Appellate Division, whose opinion is reported at 425 N.J.Super. 523 (2012).
Alyssa A. Aiello, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).
Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).
ALBIN, J., writing for a unanimous Court.
In this appeal, the Court considers whether there was probable cause to arrest defendant for defiant trespass. Without probable cause to arrest, the warrantless search of defendant at the stationhouse cannot stand.
At about 3:20 a.m. on November 24, 2007, Officer Wayne Comegno observed, momentarily, defendant David Gibson leaning against an upraised porch on the Omega Community Center's private property. In a window looking out onto the building's porch, a posted sign read, "no loitering." According to Officer Comegno, the Community Center is located in a high-crime area and its president had requested that the police make checks due to incidents of criminal mischief. As the patrol car approached, Gibson moved on, walking a city block before being stopped and questioned by Officer Comegno. The officer asked Gibson for identification, where he was coming from, and whether he had permission to be on the Community Center's property. Gibson gave his name and explained that he was coming from his child's mother's home, which is located two blocks north of the Community Center, and that he was waiting for a ride. Officer Comegno testified that Gibson appeared "very excited" and "somewhat evasive, " and that "he was looking around as though he was attempting to run." The officer did not, however, elaborate on how Gibson was "evasive." Based on his observations and interaction with Gibson, Officer Comegno concluded that Gibson had the intent to commit a defiant trespass, a petty disorderly persons offense, and arrested him. A subsequent search of Gibson at the police station uncovered thirteen bags containing crack cocaine. Gibson was charged with various drug crimes and subsequently moved to suppress the drug evidence, claiming that Officer Comegno did not have probable cause to make the arrest.
After a suppression hearing at which only Officer Comegno testified, the trial court found that the officer had probable cause to make an arrest for defiant trespass and therefore was authorized to conduct a search incident to an arrest. The Appellate Division affirmed the denial of the motion to suppress. State v. Gibson, 425 N.J.Super. 523 (App. Div. 2012). The panel stated that Officer Comegno's encounter with Gibson began as a field inquiry, and then evolved into an investigative stop given the officer's "reasonable suspicion of criminal activity" based on "the lateness of the hour, [Gibson's] immediate departure from the Omega property upon seeing the officer, and [Gibson's] excited and evasive demeanor when questioned." According to the appellate panel, the reasonable suspicion ripened into probable cause to arrest for defiant trespass "when [Gibson] failed to assert that he was on the Omega property with permission." Even though the property owner posted a "no loitering" sign instead of a "no trespassing" sign, the panel maintained that there was probable cause to arrest for defiant trespass because the owner's intent to keep others off the property was reasonably conveyed. The Court granted Gibson's petition for certification. 212 N.J. 460 (2012).
HELD: There is insufficient evidence in the record to support a finding that Officer Comegno had probable cause to arrest Gibson for defiant trespass; therefore, the subsequent search at the stationhouse was unconstitutional and the drug evidence seized during the search must be suppressed.
1. Under N.J.S.A. 2C:18-3(b), a person commits the petty disorderly persons offense of defiant trespass "if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given . . . in a manner . . . reasonably likely to come to the attention of intruders . . . ." This case deals only with the "enters" portion of the statute, which has no temporal requirement for a completed trespass. Provided sufficient notice is given against trespass, even a brief willful entry onto another's property may constitute a violation of N.J.S.A. 2C:18-3(b). The relevant inquiry here is whether Gibson was given "notice against trespass" in a manner "reasonably likely to come to [his] attention" and in a form so that he knew that he was not "licensed or privileged" to set even a foot on Omega's property or to lean against its porch. The answer depends on whether the "no loitering" sign gave sufficient notice to make a reasonable person aware that even a slight and brief incursion on the property was a prosecutable offense. (pp. 11-14)
2. "No loitering" does not convey the same meaning as "no trespassing." As commonly understood and defined, "loitering" means remaining or lingering at a particular location for some indefinite period of time for no apparent purpose. On the other hand, trespass--particularly as used in the defiant trespass statute--prohibits the mere entering in a place when one is not licensed or privileged to do so. Unlike loitering, the "enters" portion of the trespass statute has no temporal element. Based on these commonly accepted definitions, it is fair to say that the "no loitering" sign in the porch window of the Omega Community Center communicated that a person should not be idly remaining or loafing on its property. (pp. 14-16)
3. The constitutionality of the arrest in this case, and the legitimacy of the subsequent stationhouse search, depends on whether there was probable cause to believe that Gibson was a defiant trespasser. Probable cause is a well-grounded suspicion that a crime has been or is being committed. In determining whether probable cause exists, a court must look to the totality of the circumstances, and view those circumstances from the standpoint of an objectively reasonable police officer. In addition, the State bears the burden of proving by a preponderance of the evidence that the officer had probable cause to make the arrest. Although the trial court's credibility assessments are entitled to deference, the Court is not obliged to defer to the ultimate finding of probable cause when the facts and inferences do not support that conclusion. (pp. 17-24)
4. According to the record, Gibson was seen leaning on the porch for no more than a few moments before he began walking. As soon as the officer saw Gibson, Gibson moved on, but did not take flight or dart between buildings. Although Officer Comegno claimed that Gibson was "evasive" and looked as though he might "run, " he gave no factual support for those subjective feelings. In addition, although the officer cited, as one basis for making the arrest, Gibson's failure to give "lawful reasons" for leaning on the porch, Gibson explained why he was on the street at that hour. The notice on the Omega property did not suggest that leaning on the porch for a very brief period of time would subject Gibson to a defiant trespass prosecution. Gibson was instead warned against loitering, which has a distinctly different meaning than trespass. Momentarily leaning against a building, or an upraised porch, on a city block, would not be considered loitering to an objectively reasonable citizen. If Gibson was not loitering, then Officer Comegno could not have formed a well-grounded suspicion that Gibson was defiantly trespassing. Therefore, the record does not support that Officer Comegno had probable cause to arrest Gibson for defiant trespass. The police station search cannot stand because it was incident to an unconstitutional seizure. (pp. 24-28)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and PATTERSON, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE ALBIN's opinion.
The right to walk freely on the streets of a city without fear of arbitrary arrest is one of the guarantees protected by the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. A person cannot be arrested unless there is probable cause to believe that he has committed or is committing an offense. An arrest without probable cause is an unreasonable seizure in violation of both the Federal and State Constitutions.
In the early morning hours of November 24, 2007, a police officer on vehicular patrol observed, momentarily, defendant David Gibson leaning against a building's upraised porch on a street corner in the City of Burlington. In a window looking out onto the building's porch, a posted sign read, "no loitering." Gibson moved on, walking a whole city block before he was stopped and questioned by the officer. According to the officer, the ground on which Gibson stood as he leaned against the porch was private property. On that basis, in addition to Gibson's nervous demeanor after the stop, the officer concluded that Gibson had the intent to commit a defiant trespass, a petty disorderly persons offense, and arrested him.
Gibson moved to suppress drug evidence discovered during a search at the stationhouse because, as he claims, the officer did not have probable cause to make the arrest. After a hearing at which the arresting officer testified, the trial court denied the suppression motion, and the Appellate Division affirmed.
Even given our deferential standard of review, we cannot hold that there is sufficient credible evidence in the record to support the trial court's finding that the officer had probable cause to believe that Gibson was a defiant trespasser. Because we conclude that the trial court's finding of probable cause was clearly mistaken, we must reverse the Appellate Division and remand for entry of an order suppressing the evidence.
Defendant was charged in a Burlington County indictment with second-degree possession of a controlled dangerous substance (CDS), namely cocaine, with intent to distribute within 500 feet of certain public property, N.J.S.A. 2C:35-7.1; third-degree possession of CDS with intent to distribute within 1, 000 feet of school property, N.J.S.A. 2C:35-7; third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1). Gibson moved to suppress CDS evidence discovered on him after his arrest for defiant trespass. He claimed that his arrest was an unconstitutional seizure and therefore the following search invalid, requiring suppression of the evidence under the exclusionary rule.
At the suppression hearing in Superior Court, Burlington County, only one witness testified, Officer Wayne Comegno of the Burlington City Police Department. The factual record consists entirely of the testimony of Officer Comegno.
At about 3:20 a.m. on November 24, 2007, Officer Comegno, a four-year veteran, was patrolling in a squad car in the New Yorkshire area -- a historic section of the city also known to him for its history of violent crimes and drug activity. The president of the Omega Community Center had asked the police to check the property "because of incidents of criminal mischief." The Community Center is a three-story building that "sits on the corner of York and Jones Avenue." On the York Street side, the building has an upraised porch -- two feet off ground level --with two windows facing off the porch. In the upper half of one of the windows was a "no loitering" sign.
As Officer Comegno drove south on York Street, he noticed David Gibson "leaning against the porch of the Omega Community Center." Officer Comegno concluded that the ground on which Gibson was standing, as he leaned against the porch, was the private property of the Community Center. The record does not reveal how many feet or inches Gibson stood off the sidewalk or street onto Omega's property by Officer Comegno's reckoning. According to the officer, the area was illuminated and the "no loitering" sign, which he could see from his car, was approximately two feet from where Gibson was standing.
As the patrol car approached him, Gibson began walking south on York Street. This was apparently just moments after Officer Comegno first caught sight of him. As Gibson crossed over Jones Avenue and headed towards Green Street, Officer Comegno did not pull his patrol car over and attempt to stop him. Instead, the officer drove around the block. After Gibson walked the full length of the block and reached the intersection of York Street and Green Street, Officer Comegno rounded the corner and "intercepted" him. The officer exited his patrol car and asked Gibson for identification. He also asked Gibson where he was coming from and whether he had permission to be on Omega's property. Gibson gave his name and explained that he was coming from "his child's mother's home located at 200 East Broad Street, " which is located two blocks north of the Omega Community Center. He told the officer that "[h]e was waiting for a ride, something along those lines." To Officer Comegno, Gibson appeared "very excited" and ...