SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3043-94T1
STATE OF NEW JERSEY,
IN THE INTEREST OF
J.B., a juvenile.
Argued September 20, 1995 - Decided October
12, 1995
Before Judges King, Landau and Kleiner.
On appeal from the Superior Court of
New Jersey, Chancery Division, Family Part,
Camden County.
Kathleen Covert-Miminno, Special Deputy
Attorney General, Acting Camden County
Assistant Prosecutor, argued the cause for
plaintiff-appellant, State of New Jersey
(Joseph F. Audino, Deputy Attorney General
In Charge, Acting Camden County Prosecutor,
attorney; A. Victoria Pinette, Assistant
Prosecutor, of counsel and on the letter-brief).
Jacqueline E. Turner, argued the cause for
juvenile-respondent, J.B. (Susan L. Reisner,
Public Defender, attorney; Ms. Turner,
Assistant Deputy Public Defender, of counsel
and on the letter-brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
Pursuant to leave granted, the State appeals an order suppressing evidence which was seized without a warrant from J.B. by a police officer. Defendant is a juvenile who was arrested for juvenile delinquency, specifically acts which, if committed
by an adult, would constitute: (1) unlawful possession of a
weapon, contrary to N.J.S.A. 2C:39-5; (2) possession of a
controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1); and (3) possession of a controlled dangerous substance
with intent to distribute, contrary to N.J.S.A. 2C:35-5b(2).
On October 13, 1994, Patrolmen McLeod and Davila, members of
the Camden Police department bicycle patrol, were engaged in an
organized police activity known as a "corner sweep." When a
"corner sweep" is planned, both the day shift of bicycle
patrolmen and the regular night shift of bicycle patrolmen join
forces at night and visit street corners in high drug-trafficking
zones in Camden. Individuals found congregating on street
corners are approached and asked for identification. The names
of those individuals who respond to the inquiry are then cross-referenced with names on the police outstanding warrant list.
Those individuals not wanted on that warrant list are asked to
disperse from the corner. Special emphasis on dispersal is
directed at those individuals not residing in the immediate area.
On that date, at about 11 p.m., McLeod and his partner were
cycling to the corner of 24th and High Streets, a high drug
trafficking intersection. While en route, they received a
dispatch from police headquarters that the police department had
received an anonymous citizen telephone complaint about a large
crowd reported to be selling drugs on the corner of 24th and High
Street. As McLeod approached that intersection from a distance
of one-half block, he observed five individuals congregated on
the corner. He recognized one individual, later identified as
the juvenile, J.B., as someone he had seen regularly in the
neighborhood. As McLeod and Davila approached the congregated
group, J.B. ran from the group. Davila began to converse with
the remaining individuals and McLeod walked to the corner to see
if he could find J.B. with the intent to question him. McLeod
walked around the corner but J.B. was not in sight.
McLeod did see another individual seated on the steps of a
nearby porch. He noticed that individual looking back in the
direction of the porch. Utilizing a flashlight, McLeod made an
observation of the porch and found J.B. in a crouched position on
his knees. The following colloquy on direct examination best
explains the ensuing activity:
Q. Okay. And when you saw him cradled
over what did you do --
. . . .
. . . .
A. -- when I saw him cradled I assumed
he was just simply hiding. And when I told
him to get up, as he got -- went to grab him
to get up the drugs and everything was just
underneath of him, the drugs and the gun.
. . . .
Q. Why did you lift him up?
A. I lift -- I lift him up -- actually I
lift him up for my safety and his safety
`cause I didn't want -- I didn't want -- I
didn't know what he had underneath of him at
the time. He's like this. I just want to be
safe.
McLeod found a medicine bottle containing thirty-nine
glassine envelopes of "crack cocaine" and an automatic handgun
loaded with five live bullets under J.B. when he stood erect.
McLeod confiscated these items. J.B. was arrested and charged
with delinquency.
The motion judge, relying on State v. Tucker,
136 N.J. 158
(1994), suppressed the evidence. We conclude that the facts
presented here are distinguishable from the stipulated facts in
Tucker, and reverse the suppression order.
In Tucker, a police officer, while on routine patrol, observed two men seated on a curb. One of the men fled as the police vehicle approached. The police officer radioed for police assistance and another patrol vehicle responded. Tucker was blockaded in a yard by the two police vehicles and was apprehended after he discarded a packet of cocaine. Id. at 161-62.
On Tucker's motion to suppress, the Law Division judge concluded "that the police had neither probable cause nor a reasonable, articulable suspicion to believe defendant had committed a crime." Ibid. Therefore, "neither an arrest nor an investigatory stop was justified." Ibid. The Law Division judge denied the suppression motion and concluded that Tucker had abandoned the contraband. Ibid.
We reversed the Law Division judge. State v. Tucker,
265 N.J. Super. 358 (App. Div. 1993). Although we agreed that the
police had illegally seized defendant, we concluded that the
contraband had not been abandoned but was a direct product of the
illegal seizure. Id. at 360-61. That conclusion was affirmed by
the Supreme Court. State v. Tucker,
136 N.J. 158 (1994).
After explaining why the limited stipulated facts were
insufficient to validate defendant's arrest, the Supreme Court
concluded:
Police are not to be mere spectators of
events. They may pursue persons to further
investigation. Not every police pursuit is a
seizure. A pursuit will very often turn up
incriminating evidence or other circumstances
that give rise to an articulable suspicion
that the pursued is engaged in criminal
activity. The decisions of Terry, supra, and
its progeny fully recognize that police
officers must respond, short of arrest, to
suspicious situations. A brief stop for
questioning is an effective tool of police
officers for investigating and preventing
crimes. Under the Terry doctrine, provided
articulable suspicion exists, police officers
are permitted to use an official "show of
authority," to detain the person with
physical force, and to search the person for
weapons. 392 U.S. at 19 n.16, 88 S. Ct. at
1879 n.16, 20 L.Ed.
2d at 905 n.16. However,
such manifestations of police authority,
unsupported by articulable suspicion of
criminal activity, may turn a police pursuit
into an unlawful seizure. Because the flight
of defendant alone, without other articulable
suspicion of criminal activity, generated by
the pursuit does not meet the Terry standards
for an articulable suspicion the police
seizure was not justified.
[State v. Tucker, supra, at 173.]
Here, in comparison to Tucker, the police were not on a
routine patrol. These police officers were engaged in an
organized police activity designed to eliminate loitering at
night on street corners in high drug-trafficking areas.
Additionally, on this particular evening the police were
responding to a citizen telephone complaint of alleged drug
trafficking at the corner of 24th and High Streets, the very next
corner they intended to check as part of their planned activity
that evening. Flight from the police may not alone be
significant; in the absence of other compelling circumstances, it
clearly would not permit an "inference that it was done with a
consciousness of guilt and pursuant to an effort to avoid an
accusation . . . ." Id. at 169 (quoting State v. Sullivan,
43 N.J. 209, 238-39 (1964)). However, flight under the compelling
circumstances before us was sufficient to justify further
investigation and, if necessary, investigatory detention. See
also Model Jury Charges (Criminal), Flight (November 18, 1991),
as cited in Tucker, supra, 136 N.J. at 169. These facts, when
viewed collectively, permit a sufficient inference of criminal
activity to justify police inquiry.
The facts in the case before us are more analogous to the
facts in State v. Doss,
254 N.J. Super. 122 (App. Div.), certif.
denied,
130 N.J. 17 (1992), where we concluded that police had
justifiably stopped and interrogated the defendant because of the
totality of the circumstances described in the record. The
Supreme Court in Tucker, supra, 136 N.J. at 170, summarized Doss:
On a November evening at 11:30, in unmarked
vehicles, police were patrolling a parking
area where drug trafficking was known to be
prevalent. Approximately twenty people had
gathered, and someone alerted the group that
the approaching car was a police vehicle.
Three or four persons, along with the
defendant, ran from the crowd. Police, in
their car, followed the defendant until he
entered an alley. They got out of the car
and pursued the defendant on foot. A police
detective repeatedly commanded the defendant
to halt. When the defendant ran into a
lighted area, the detective recognized him as
someone he had previously observed on several
occasions talking with convicted drug
dealers. The detective testified that he
suspected that the defendant had run because
he had committed a crime or that a warrant
had been issued for his arrest. Those
circumstances supported the officer's
articulable suspicion to stop and interrogate
defendant.
[State v. Tucker, supra, at 170 (citations
omitted) (citing State v. Doss,
254 N.J.
Super. 122 (App. Div.), certif. denied,
130 N.J. 17 (1992)).]
Here, as in Doss, the police were in a high narcotic
trafficking area. More important, McLeod and his partner were
not on routine patrol but were specifically present to perform an
assigned police function: to conduct "corner sweeps" and to
investigate a citizen complaint respecting narcotics activity.
We note that the Tucker opinion fails to reference the hour of
the arrest and does not describe the geographic vicinity as a
high drug-trafficking area, factors which also distinguish this
case from Tucker.
As for the reported telephone call, it alone would not have
given McLeod a basis to effect an arrest because the informant
was anonymous and of unknown reliability. See State v. Davis,
104 N.J. 490 (1986) (emphasizing that a call by a known, reliable
source may justify an investigation). Nonetheless, the phone
call certainly provided McLeod with a reason to conduct an
investigation. See State v. Ramos, 282 N.J. Super. 19 (App. Div.
1995). As in Davis, the facts taken as a whole justify McLeod's
investigative inquiry of J.B. The phone call and J.B.'s flight,
coupled with the designated purpose of the patrol, gave McLeod a
reasonable suspicion that J.B. was involved in criminal activity.
Furthermore, McLeod was justified in lifting J.B. to his feet.
This conduct represents the legitimate manifestation of police
authority discussed in Tucker. Lifting J.B. to his feet revealed
the evidence to McLeod's plain view. Evidence in plain view
during a custodial investigation is clearly admissible. State v.
Bruzzese,
94 N.J. 210, 237 (1983). The seized evidence, drugs
and a handgun, was admissible. We conclude that the motion judge
erred in suppressing the evidence.
On appeal, although the State urged in its brief that `"[t]he trial court erred in finding that the stop of the juvenile was improper," (Point II, A), and that "[t]he handgun and the bottle containing the narcotics were discovered in plain view," (Point II, B), defendant has only argued in his brief that "[t]he trial judge properly granted the juvenile's motion to suppress the evidence as there was [no] justification to seize
the juvenile."See footnote 1 There is no dispute that the evidence when
seized was physically visible. At oral argument, defendant did
argue that McLeod's action in lifting defendant from a crouched
position on the porch where he was hiding violated Terry v. Ohio,
393 U.S. 1,
88 S. Ct. 1868,
20 L.Ed.2d 889 (1968). As the motion
judge did not address that issue, nor was it briefed by defendant
in this appeal, we need not consider that issue. Suffice it to
say, we disagree with defendant's contention. McLeod
specifically indicated that he lifted defendant for safety
reasons. Under the total circumstances presented, we do not find
the officer's conduct to have offended Terry. Lifting a crouched
individual, found hiding on a porch on his knees at night, in a
high narcotics area, after his flight from the corner where drug-trafficking was suspected, is certainly justified as police
action designed to protect the safety of the investigating
officer. Had McLeod employed a less aggressive tact and merely
directed J.B. to stand, the medicine bottle and handgun still
would have been observed in plain view. See State v. Sugar,
84 N.J. 1, 23 (1980). The evidence would have been seized in any
event and should have been admitted.
The order suppressing evidence is reversed. We remand to
the Family Part for trial.
Footnote: 1 We conclude that the Point as typed contains a typographical error omitting the word "no" preceding the word "justification."