(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court.
Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 9, 1993 -- Decided February 2, 1994
GARIBALDI, J., writing for a majority of the Court.
On June 22, 1990, shortly after midnight, Officer Nuccio was on routine patrol in what he knew
to be a high-crime area in Red Bank. He observed Ronald Valentine duck behind a tree near a woman
standing on Willow Street. Officer Nuccio had arrested many suspects in that area for offenses such as
burglary, robbery, purse snatching, and possession and distribution of illegal drugs. Based on his
observations, the officer stepped out of his patrol car and approached Valentine. Officer Nuccio
recognized Valentine from previous encounters and knew that Valentine had a lengthy arrest record
involving, among other things, weapons offenses, armed robberies and drug offenses.
Officer Nuccio testified that he was uncomfortable with Valentine's overall manner and his
answers to questions that the officer asked Valentine about what he was doing in the area. According to
Officer Nuccio, Valentine would not make eye contact with the officer, continually looked around, and
was evasive in his answers to questions asked him. As a result, Officer Nuccio told Valentine to remove
his hands from his pockets and move toward the police car. Valentine complied but Officer Nuccio
noticed that Valentine was nervous. At that point, Officer Nuccio radioed for assistance. Thereafter,
Officer Nuccio conducted a pat-down search of Valentine, at which time he felt a hard object in
Valentine's right jacket pocket. The officer removed a knife from Valentine's jacket pocket. When help
arrived, Valentine was placed under arrest.
Valentine was indicted for possession of a knife by a person previously convicted of a crime.
Valentine moved to suppress the knife on the ground that it was the subject of an illegal search and
seizure. The trial court denied Valentine's motion to suppress, holding that both the investigatory stop
and the frisk of Valentine were constitutional. The court found that there was sufficient evidence to
justify the pat-down, including the fact that Valentine had his hands in his pocket, was coming from the
bushes, was stopped in a high crime area and had a lengthy arrest record. Thereafter, Valentine entered
a plea of guilty to the offense charged.
On appeal, a majority of the Appellate Division reversed the conviction, concluding that the
evidence was insufficient to support a limited frisk for weapons, even though the evidence justified the
investigatory stop. The court noted that Valentine had complied with the officer's request to remove his
hands from his pockets and to move toward the police car, that there was no evidence suggesting that
Valentine had behaved in a threatening manner, and that Officer Nuccio had not identified any criminal
activity he suspected of Valentine. Therefore, the Appellate Division found that because Officer Nuccio
could not reasonably have believed that Valentine might be armed and dangerous, the frisk was
unconstitutional. One judge dissented, finding the officer's pat-down reasonable in view of the officer's
isolation, the late hour, the high-crime area, Valentine's furtive movements and suspicious behavior, and
Valentine's prior convictions for weapons offenses and armed robberies.
The State appealed as of right based on the dissent below.
HELD: In balancing the right to be protected from unwarranted police intrusions against the State's
need for effective law enforcement and police safety, the Court concludes that, under the
totality of the circumstances, the frisk of Valentine was reasonable and hence constitutional.
1. In Terry v. Ohio, the U.S. Supreme Court established the standards governing an investigatory
stop and frisk. The standards of a constitutional frisk incident to an investigatory stop are: 1) whether
the officer had been justified in making the initial stop; 2) whether the officer had been justified in frisking
the defendant; and 3) whether the officer's frisk had been sufficiently limited in its scope. The issue
before the Court addresses the second component of Terry. (pp. 5-7)
2. To determine whether the frisk incident to a lawful stop is constitutional, the officer need not be
absolutely certain that the individual is armed. Rather, a court must determine whether a reasonably
prudent man in the circumstances would be warranted in the belief that his safety or that of others was
in danger. Police officers are not justified in conducting pat-downs only when there is an objective belief
that the suspect was or is involved in criminal activity. A generalized cursory search for weapons is
impermissible unless there are circumstances that give rise to an objectively reasonable suspicion that a
suspect is armed and dangerous. (pp. 7-11)
3. The reasonableness of a Terry frisk must be evaluated in the circumstances of the law
enforcement officer's particular vulnerability to violence and depends on all the facts and circumstances
of the case. There is no mathematical formula for determining what set of facts give rise to a reasonable
belief that a suspect is a potential threat to a police officer thus justifying a protective search for
weapons. Instead, courts must balance the competing interests. Neither the lateness of the hour at
which an investigatory stop occurs, nor the fact that the stop is in a high-crime area can be the sole
basis justifying a frisk for weapons. However, those factors justifiably elevate a police officer's
reasonable belief that a suspect is armed and dangerous. Moreover, a police officer's knowledge of a
suspect's criminal history, especially when that history involves weapons offenses, is a relevant factor in
judging the reasonableness of a Terry frisk. Although criminal history cannot be the sole justification for
a frisk because that may lead to unwarranted intrusions on a suspect's constitutional protections, a Terry
frisk is not automatically invalid because the frisking officer's reasonable suspicions is grounded, in part,
by the suspect's prior criminal history. (pp. 11-19)
4. Officer Nuccio's personal knowledge of Valentine's prior criminal history of armed robberies,
weapons and drug offenses, the fact that Valentine initially had his hands in his pockets, Valentine's
decision to duck behind a tree after seeing a police car, Valentine's nervousness, Valentine's failure to
make eye contact with Officer Nuccio, the high-crime nature of the area, and the time of night all
contributed to Officer Nuccio's reasonable belief that Valentine was armed and dangerous. Therefore,
the pat-down search was justified. (pp. 19-23)
Judgment of the Appellate Division is REVERSED and the conviction is REINSTATED.
JUSTICE CLIFFORD, dissenting, is of the view that the majority of the court below
appropriately applied the controlling principles of law in an acutely fact-sensitive area; therefore, he
would affirm substantially for the reasons set forth in the Appellate Division opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, and STEIN join
in JUSTICE GARIBALDI's opinion. JUSTICE CLIFFORD filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
39 September Term l993
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RONALD VALENTINE,
Defendant-Respondent.
__________________________
Argued November 9, l993 -- Decided February 2, 1994
On appeal from the Superior Court, Appellate
Division, whose opinions are reported at ___
N.J. Super. ___ (1993).
Deborah Bartolomey, Deputy Attorney General,
argued the cause for appellant (Fred DeVesa,
Acting Attorney General of New Jersey,
attorney).
Neal M. Frank, Designated Counsel, argued the
cause for respondent (Zulima V. Farber,
Public Defender, attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
At issue is whether a police officer's pat-down of
defendant during a legitimate investigatory stop was
constitutional under the Fourth Amendment of the Federal
Constitution and Article I, paragraph 7 of the New Jersey
Constitution. Defendant, Ronald Valentine, indicted for
possession of a knife by a person previously convicted of a
crime, contrary to N.J.S.A. 2C:39-7, moved to suppress the knife
on the ground that it was the subject of an illegal search and
seizure. The trial court denied defendant's motion to suppress,
holding that both the investigatory stop and the frisk of
defendant were constitutional, whereupon defendant entered a
guilty plea. The Appellate Division unanimously agreed that the
investigatory stop was constitutional, but a majority of that
court concluded that the search did not survive constitutional
scrutiny, wherefore it reversed the conviction. The dissenting
judge would have upheld the pat-down as constitutional. The
State appealed as of right, R. 2:2-1(a), and we now reverse.
On June 22, l990, at approximately l2:l0 a.m., Officer Nuccio was on routine patrol in a marked police car. As he patrolled the city of Red Bank alone, he observed a woman, Debra Collier, standing in the middle of Willow Street onto which he had just turned. As Officer Nuccio pulled up closer to the woman, he observed defendant duck behind a tree, which was located on the side of Willow Street adjacent to the Jersey Central Power and Light storage yard and across from a residential area.
Officer Nuccio testified that he was personally familiar with the area as a high-crime area. In fact, he testified that he had made well over a hundred arrests in the area for offenses ranging from burglaries, robberies, and purse snatchings to possession and distribution of controlled dangerous substances.
On observing defendant duck behind the tree, Officer Nuccio
alighted from his car and approached defendant. Although the
area was not well lit, Officer Nuccio spotted defendant walking
out from behind the tree. Defendant was walking towards Officer
Nuccio with his hands in his pockets. As defendant moved closer
to him, Officer Nuccio recognized him from previous encounters.
Officer Nuccio testified that he was aware that defendant had a
lengthy arrest sheet, "that he had been involved in weapons
offenses, armed robberies, prior C.D.S. complaints and stuff like
that."
Officer Nuccio asked defendant "what he was doing."
Defendant responded that he was "about to urinate, until he saw
the police vehicle." Debra Collier testified that Officer Nuccio
questioned defendant about why he needed to urinate behind a
tree, inasmuch as he lived "right around the corner." According
to Collier, defendant responded that "when nature call [sic] that
happens, sometime just like that."
Officer Nuccio testified that he was "uncomfortable" with
defendant's responses to his questions and defendant's overall
demeanor. According to Officer Nuccio, defendant would not make
eye contact with him, continually looked around, and was evasive
in his answers to the questions put to him. As a result, Officer
Nuccio commanded defendant to remove his hands from his pockets
and move over toward the police car. Defendant complied, but,
according to Officer Nuccio, he continued acting nervously. At
that point, Officer Nuccio radioed for backup because he "didn't
feel comfortable [by himself] the way things were going
together."
Officer Nuccio then conducted a pat-down of defendant. On
conducting the pat-down, Officer Nuccio felt a hard object in
defendant's right jacket pocket. The officer removed the object
-- a locked blade knife in the open position -- and put it in his
pocket. Backup then arrived, and the police placed defendant
under arrest.
In denying defendant's motion to suppress the knife seized
during the pat-down, the trial court concluded that sufficient
evidence justified the pat-down:
[H]e's got a guy with his hands in his
pocket. Coming out from behind the bushes.
In a very high crime area. Whose [sic] been arrested
before and [sic] armed robbery, weapons offenses,
burglaries, robberies in that area and its twelve
o'clock at night. And he won't make any eye contact
and he's looking around.
The Appellate Division disagreed. Over the dissent of Judge
Keefe, the Appellate Division concluded in an unpublished opinion
that the evidence was insufficient to support the limited frisk
for weapons, even though the evidence justified the investigatory
stop. Noting that defendant had complied with Officer Nuccio's
request to remove his hands from his pockets and to move toward
the police car, that no evidence suggested that defendant had
behaved in a hostile and threatening manner, and that Officer
Nuccio had not identified the criminal activity he suspected of
defendant, the Appellate Division concluded that Officer Nuccio
could not reasonably have believed that defendant might be armed
and dangerous. The court also was reluctant to encourage police
officers to rely on their knowledge of a person's prior criminal
record as a reason to support a frisk. Accordingly, the
Appellate Division found the frisk unconstitutional.
The dissenting judge, however, noting the officer's isolation,
the late hour, the high-crime area, defendant's furtive movements
combined with his suspicious behavior, and his prior convictions
for weapons offenses and armed robberies, found Officer Nuccio's
pat-down reasonable.
II
In the landmark case of Terry v. Ohio, 392 U.S. l, 88 S. Ct.
l868,
20 L. Ed.2d 889 (l968), the Supreme Court established the
standards governing what has come to be known as "stop and
frisk." In Terry, a police officer observed three men repeatedly
looking into a store. The officer concluded that the three were
about to commit a robbery. He approached the men, identified
himself as a police officer, and asked their names. After
receiving a mumbled reply, the officer conducted a pat-down of
the men, finding two weapons. In analyzing the constitutionality
of the seizure, the Court examined whether (l) the officer had
been justified in making the initial stop; (2) the officer had
been justified in frisking defendants; and (3) the officer's
frisk had been sufficiently limited in its scope. Id. at 20, 88
S. Ct. at l879, 20 L. Ed.
2d at 905.
As we stated in State v. Thomas, ll
0 N.J. 673, 678 (l988),
"The first component of the Terry rule concerns the level of
reasonable suspicion that must exist before an 'investigatory
stop' legitimately may be undertaken." The essence of that
standard is "`that the totality of the circumstances -- the whole
picture -- must be taken into account. Based upon that whole
picture the detaining officers must have a particularized and
objective basis for suspecting the particular person stopped of
criminal activity.'" Ibid. (quoting United States v. Cortez,
449 U.S. 4ll, 4l7, l0l S. Ct. 690, 695,
66 L. Ed.2d 62l, 629
(l98l)); accord State v. Davis, l
04 N.J. 490, 504 (l986)
(adopting totality-of-circumstances standard announced in
Cortez).
The Appellate Division unanimously concluded that under the
totality of the circumstances, Officer Nuccio's investigatory
stop of defendant was constitutional under the first component of
Terry. The issue here focuses on the second component of Terry,
namely, the standard by which we must judge an officer's decision
to frisk a suspect incident to a lawful investigatory stop.
Whether a police officer's protective search for weapons is
justified is a separate question from whether the stop was
permissible in the first place. Thomas, supra, ll0 N.J. at 678-79
The Terry Court identified the concerns that it considered
in establishing a workable standard to govern the
constitutionality of a frisk incident to a lawful stop:
We are now concerned with more than the
governmental interest in investigating crime;
in addition, there is the more immediate
interest of the police officer in taking
steps to assure himself that the person with
whom he is dealing is not armed with a weapon
that could unexpectedly and fatally be used
against him. Certainly it would be
unreasonable to require that police officers
take unnecessary risks in the performance of
their duties. American criminals have a long
tradition of armed violence, and every year
in this country many law enforcement officers
are killed in the line of duty, and thousands
more are wounded. Virtually all of these
deaths and a substantial portion of injuries
are inflicted with guns and knives.
Based on those concerns, the Terry Court established the now
well-known and often-quoted standard governing the frisk of a
suspect incident to a lawful investigatory stop.
The officer need not be absolutely certain
that the individual is armed; the issue is
whether a reasonably prudent man in the
circumstances would be warranted in the
belief that his safety or that of others was
in danger. And in determining whether the
officer acted reasonably in such
circumstances, due weight must be given, not
to his inchoate and unparticularized
suspicion or "hunch," but to the specific
reasonable inferences which he is entitled to
draw from the facts in light of his
experience.
Although we recognize that Article I, paragraph 7 of the New
Jersey Constitution may give greater protection against
unreasonable searches and seizures than does the Fourth
Amendment, see, e.g., State v. Bruzzese,
94 N.J. 2l0, 2l6 (l983),
cert. denied,
465 U.S. 1030, 1
045 S. Ct. 1295,
79 L. Ed.2d 695
(1984), we do not interpret the New Jersey Constitution to demand
a higher standard than the Fourth Amendment in order to justify a
frisk incident to a lawful investigatory stop. See State v.
Lund, ll
9 N.J. 35 (l990); Thomas, supra, ll
0 N.J. 673; Davis,
supra, l
04 N.J. 490; State ex rel. H.B.,
75 N.J. 243 (1977) (all
applying Terry standard); see also State v. Dilley,
49 N.J. 460
(l967) (applying standard later adopted in Terry).
Terry directs that courts measure the reasonableness of a
pat-down incident to a lawful investigatory stop with an
objective standard ("a reasonably prudent man"). Thomas, supra,
110 N.J. at 679. Nonetheless, courts judge the reasonableness of
the pat-down within the context of the circumstances confronting
the police officer. Thus, the Terry standard is an objective
one, but
[t]he process does not deal with hard
certainties, but with probabilities. Long
before the law of probabilities was
articulated as such, practical people
formulated certain common-sense conclusions
about human behavior; jurors as factfinders
are permitted to do the same -- and so are
law enforcement officers. Finally, the
evidence thus collected must be seen and
weighed not in terms of library analysis by
scholars, but as understood by those versed
in the field of law enforcement.
Terry, however, does not permit police officers to conduct
pat-downs whenever the circumstances satisfy only the first
component of Terry -- namely, whenever some objective
manifestation exists that the suspect was or is involved in
criminal activity. To the contrary, Terry created
an exception to the requirement of probable
cause, an exception whose "narrow scope" this
Court "has been careful to maintain." Under
that doctrine a law enforcement officer, for
his own protection and safety, may conduct a
patdown [sic] to find weapons that he
reasonably believes or suspects are then in
the possession of the person he has accosted.
Nothing in Terry can be understood to allow a
generalized "cursory search for weapons" or,
indeed, any search whatever for anything but
weapons.
[Ybarra v. Illinois,
444 U.S. 85, 93-94, l00
S. Ct. 338, 343,
62 L. Ed.2d 238, 247 (footnote
and citation omitted).]
Although a generalized cursory search for weapons is impermissible, "[v]arious circumstances may give rise to an objectively reasonable suspicion that a suspect is armed and dangerous," Thomas, supra, ll0 N.J. at 679, justifying a search for weapons. In certain circumstances, "the right to frisk must be immediate and automatic if the reason for the stop is . . . an articulable suspicion of a crime of violence." Terry, supra, 392 U.S. at 33, 88 S. Ct. at l886, 20 L. Ed. 2d at 9l3 (Harlan, J., concurring). See, e.g., People v. Shackelford, 546 P.2d 964, 967 (Colo. Ct. App. l976) (upholding protective search where
defendant was suspected of rape and robbery); State v. Kea, 606
P.2d l329, l332 (Haw. l980) (upholding protective search where
defendant was suspected of being about to commit assault with
deadly weapon); State v. Gilchrist,
299 N.W.2d 9l3, 9l7-l8
(Minn. l980) (upholding protective search where defendant was
suspected of homicide); ; Mays v. State,
726 S.W.2d 937, 944
(Tex. Ct. App. l986) (upholding protective search where
defendants were suspected of burglary), cert. denied,
484 U.S. 1079, l08 S. Ct. l059,
98 L. Ed 2d l020 (l988); .
Even in situations in which an officer does not believe a
suspect is engaged or about to become engaged in violent criminal
activity, the right to frisk for weapons during a permissible
investigatory stop is frequently automatic where a police officer
has a specific and objectively-credible reason to believe that
the suspect is armed. See, e.g., Adams v. Williams, 407 U.S.
l43, l46-47, 92 S. Ct. l921, 1923,
32 L. Ed.2d 6l2, 6l7-l8
(1972) (upholding protective search based on informant's tip that
suspect was carrying "a gun at his waist"); State v. Collins,
479 A.2d 344, 346 (Me. l984) (upholding protective search based
on officer's knowledge that defendant may have been armed on
prior occasion); State ex rel. H.B., supra, 75 N.J. at 250-5l
(l977) (upholding protective search based on informant's tip that
suspect was carrying a gun); cf. Thomas, supra, ll0 N.J. at 6l4
(implying that justification for frisk would have been stronger
had informant indicated that defendant had gun).
Oftentimes, however, a law-enforcement officer is confronted
with far less clear circumstances. Even in those more murky and
difficult situations, however, law-enforcement officers must make
instantaneous decisions about whether a frisk for weapons is
justifiable. The task is an unenviable one often fraught with
life-and-death consequences.
We are mindful of Judge Friendly's warning that "courts
should not set the test of sufficient suspicion that the
individual is `armed and presently dangerous' too high when
protection of the investigating officer is at stake." United
States v. Riggs,
474 F.2d 699, 705 (2d Cir.), cert. denied,
414 U.S. 820,
94 S. Ct. 115,
38 L. Ed.2d 53 (l973). Over fifteen
years ago, Chief Justice Hughes realized the importance of a
realistic approach to reviewing police behavior in the context of
the ever-increasing violence in society. State ex rel. H.B.,
supra, 75 N.J. at 245.
As the front line against violence, law-enforcement officers
are particularly vulnerable to violence often becoming its
victims. Since 1984, nine New Jersey police officers have been
killed in the line of duty. In 1992, 3,988 police officers were
assaulted in the line of duty. Uniform Crime Reports for the
State of New Jersey--1992, at 180-81. Violence against law-enforcement officials is not unique to New Jersey. From 1982-1991, 743 federal law-enforcement officers were killed in the
line of duty in the United States. See Uniform Crime Reports:
Law Enforcement Officers Killed and Assaulted--1991.
We must evaluate the reasonableness of a Terry frisk in that
context. Just as the decision concerning whether the initial
investigatory stop is justified, the decision concerning whether
a frisk for weapons is justified depends on all the facts and
circumstances of the case. As we said in Davis, supra, l04 N.J.
at 504,
to determine the lawfulness of a given
seizure under New Jersey law, it is incumbent
upon a reviewing court to evaluate the
totality of circumstances surrounding the
police-citizen encounter, balancing the
State's interest in effective law enforcement
against the individual's right to be
protected from unwarranted and/or overbearing
police intrusions.
No mathematical formula exists for deciding whether the
totality of the circumstances provide an officer with a
reasonable belief that a suspect was armed and dangerous. Id. at
505. "Such a determination can be made only through a sensitive
appraisal of the circumstances in each case." Ibid. Although
the cases are fact-sensitive, they, nevertheless, provide us with
guideposts in our consideration of whether Officer Nuccio's pat-down of defendant was reasonable.
Some cases suggest that a suspect's offer of a weak alibi to
explain his or her actions may help give rise to a reasonable
suspicion that the suspect is armed. See People v. Allen, l
23 Cal.Rptr. 80, 8l (Cal. Ct. App. l975) (discussing defendant's
claim that he was on his way back to hotel when he was in fact
walking away from hotel); Davis, supra, l04 N.J. at 496 n.4
(finding reasonable pat-down of suspects on stolen bicycles who
claimed their car, which was nowhere to be found, had run out of
gas and that bicycles were conveniently in vehicle's trunk).
Although a stop in a high-crime area does not by itself
justify a Terry frisk, see Maryland v. Buie,
494 U.S. 325, 334-35
n.2, ll0 S. Ct. l093, l098 n.2, l
08 L. Ed.2d 276, 286 n.2
(l990), the location of the investigatory stop can reasonably
elevate a police officer's suspicion that a suspect is armed.
See United States v. Trullo, 809 F.2d l08 (lst Cir.) (upholding
protective search and noting that officer's suspicions that
narcotics dealer might be armed were justifiably elevated when
officer confronted suspect in high-crime area known for drug
dealing, and noticed bulge in suspect's pocket), cert. denied,
482 U.S. 916, l
07 S. Ct. 3l9l,
96 L. Ed.2d 679 (l987).
Like the high-crime-area factor, the lateness of the hour at
which an investigatory stop occurs cannot be the sole basis
justifying a frisk for weapons. However, the lateness of the
hour, like the location at which such a stop occurs, justifiably
elevates a police officer's reasonable belief that a suspect is
armed and dangerous. See Lund, supra, ll9 N.J. at 48. That
observation is especially true when the defendant's activity is
entirely inconsistent with time of day. See Collins, supra, 479
A.
2d at 345 (noting that time of l:l5 a.m. raised reasonable
suspicions regarding defendant's carrying of office supplies in
business district).
Moreover, a police officer's knowledge of a suspect's
criminal history, especially where that history involves weapons
offenses, is a relevant factor in judging the reasonableness of a
Terry frisk. Although an officer's knowledge of a suspect's
criminal history alone is not sufficient to justify the initial
stop of a suspect or to justify a frisk of a suspect once
stopped, an officer's knowledge of a suspect's prior criminal
activity in combination with other factors may lead to a
reasonable suspicion that the suspect is armed and dangerous.
Terry itself acknowledges that police officers must be permitted
to use their knowledge and experience in deciding whether to
frisk a suspect. "[I]n determining whether the officer acted
reasonably . . . due weight must be given, not to his inchoate
and unparticularized suspicion or hunch, but to the specific
reasonable inferences which he is entitled to draw from the facts
in light of his experience." Terry, supra, 392 U.S. at 27, 88 S.
Ct. at l883, 20 L. Ed.
2d at 909. In many instances, a
reasonable inference may be drawn that a suspect is armed and
dangerous from the fact that he or she is known to have been
armed and dangerous on previous occasions.
In Thomas, we suggested that an officer's knowledge that a
defendant had been armed at a prior arrest would bolster an
objectively-reasonable suspicion that the defendant was armed and
dangerous at that stop. 110 N.J. at 684. Likewise, the Supreme
Court has implied that knowledge of a person's criminal history
would be a factor supporting a legitimate frisk. Ybarra, supra,
44 U.S. at 93, 110 S. Ct. at 343, 62 L. Ed.
2d at 246.
However, a frisk never will be justified based solely on an
officer's knowledge of a suspect's criminal history. The
Appellate Division's reliance on United States v. Hairston,
439 F. Supp. 5l5 (N.D. Ill. l977), and State v. Giltner, 537 P.2d l4
(Haw. l975) is therefore misplaced. In both of those cases, to
justify his pat-down the police officer relied exclusively on his
knowledge of the suspect's previous encounters with law
enforcement. In Hairston, the officer stopped the defendant for
a noisy muffler at two o'clock in the afternoon on a busy street.
The defendant alighted from the car to present his license to the
officer. The officer recognized the defendant as a convicted
felon. Furthermore, the officer testified that he noticed a
bulge in the defendant's pants. Without first patting down the
defendant, the officer reached into the pants and removed a
handgun.
The trial court found that the seizure was unconstitutional.
First, the court rejected the notion, as we do today, that the
sole fact that the defendant was a convicted felon justified the
seizure. 439 F. Supp. at 5l8. Second, the court questioned
whether the officer had actually seen a bulge in the defendant's
pants. Ibid. Third, even if the officer had seen the bulge, the
scope of the search "went far beyond what was `minimally
necessary.'" Id. at 5l9.
The officer in Hairston knew only that the defendant was a
convicted felon. Nothing in the record suggested that the
officer knew that the defendant had carried weapons previously.
Here, Officer Nuccio had personal knowledge that Valentine had
carried weapons on previous occasions. In addition, unlike
Valentine, the defendant in Hairston took no action that could
have reasonably led the officer to conclude that he was armed.
Finally, the court in Hairston concluded that the scope of the
search had been impermissible, where as the scope of the search
conducted by Officer Nuccio was, without question, consistent
with the dictates of Terry.
Likewise, in Giltner, supra, 537 P.2d l4, the sole reason
for the frisk was the officer's knowledge that Giltner had been
armed on a previous occasion. An elderly woman informed police
officers of a disturbance at an unspecified part of an apartment
building. The officers investigated and observed three men on
the second-floor landing in the building. Without any evidence
that the three men on the balcony were the same rowdy group to
whom the elderly woman had referred, one of the officer's frisked
Giltner because he recognized him as a person whom he had known
to be armed on a previous occasion.
The Supreme Court of Hawaii held that the stop and frisk
were impermissible, finding that
[t]here was nothing unusual or suspicious
about the conduct of the defendant and his
companions in this case. Nor was there
anything in the surrounding circumstances
which could have justified the seizure of the
defendant. The officer could not point to
specific and articulable facts from which he
could have reasonably inferred that the
defendant had committed, or was about to
commit an offense. It was not enough that on
a previous occasion, personally known to the
officer, the defendant had been offensively
armed.
Unlike the situation in Giltner, the circumstances of this
case unquestionably warranted the stop of defendant. Moreover,
unlike the situations in Hairston and Giltner, the justification
for defendant's frisk by Officer Nuccio was not the sole fact
that defendant had been armed on a prior occasion. That was just
one of the factors that Officer Nuccio considered.
Given the volatile times in which we live, we certainly
cannot require police officers to ignore the fact that a suspect
whom they are confronting has a history of criminal behavior,
particularly weapons offenses. We acknowledge that permitting
the use of a suspect's prior criminal history alone to justify a
Terry frisk may lead to unwarranted intrusions on a suspect's
constitutional protections in certain circumstances. We do not
hold, however, that a suspect's criminal history alone may
justify a Terry frisk. We hold merely that a Terry frisk is not
automatically invalid because the frisking officer's reasonable
suspicion is grounded, in part, by the suspect's prior criminal
history. We see no reason to exclude evidence seized pursuant to
such a frisk as a prophylactic device to curb potential police
overreaching. As the Terry Court itself was aware, "[t]he
exclusionary rule has its limitations. . . as a tool of judicial
control. It cannot properly be invoked to exclude the products
of legitimate police investigative techniques on the ground that
much conduct which is closely similar involves unwarranted
intrusions upon constitutional protections." Id. at l3, 88 S.
Ct. at 1875, 20 L. Ed.
2d at 90l.
Moreover, considering a suspect's prior criminal activity is
nothing extraordinary. Courts assessing the reasonableness of an
officer's assessment of probable cause to arrest may consider
evidence of prior crime on the part of the suspect. See Brinegar
v. United States,
338 U.S. 160, 174-75,
69 S. Ct. 1302, 1310, 93
L. Ed. 1879, 1890 (1949). Professor LaFave explains that the
reason for limiting the use of prior crime evidence at trials is
not because the evidence is not relevant but because it has the
unfair effect of overcoming the presumption of innocence. Wayne
LaFave, Search and Seizure: A Treatise on the Fourth Amendment §
3.2(d), at 579-583 (2d ed. 1987); see also Commonwealth v.
Gullett,
329 A.2d 513, 517-18 (Pa. 1974). That unfairness is not
equally present when we are assessing an officer's articulable
concerns for personal safety. In addition, courts commonly use a
defendant's prior criminal history in sentencing. To allow the
judiciary to take prior criminal history into account in the
review of probable cause determinations and in sentencing, while
denying law-enforcement officers the power to take it into
account when confronting a suspect on the street would make
little sense. In sentencing defendants, trial courts view
criminal history in order to determine what sentence will best
protect the public from the defendant. The much more immediate
need to protect oneself demands that we permit law-enforcement
officers to take criminal history into account.
Whether a frisk is reasonable depends on the facts in each case. Based on our review of the totality of circumstances, we find that Officer Nuccio reasonably concluded that defendant might be armed and dangerous, justifying the pat-down. Officer Nuccio's suspicion that defendant was engaged or about to become engaged in criminal activity was reasonable. Approaching a suspect believed to be engaged in criminal activity, Officer Nuccio was initially alarmed that defendant had his hands in his pockets. He asked defendant to remove his hands from his pockets and to explain why he had ducked behind a tree after seeing the police vehicle. Defendant gave a weak excuse, suggesting to Officer Nuccio that he was lying. Moreover, defendant refused to make eye contact with Officer Nuccio, and he repeatedly looked around the area. In addition, Officer Nuccio testified that he recognized defendant as someone who had a long history of
criminal activity, including armed robberies and weapons
offenses. All the foregoing occurred after midnight on a dark
street known to Officer Nuccio as a high-crime area. For Officer
Nuccio to conclude that the suspect might be armed and that his
safety was in danger was eminently reasonable.
Based on that reasonable suspicion, Officer Nuccio conducted
a pat-down of defendant's outer clothing. The pat-down was well
within the scope permitted under Terry. 392 U.S. at 29, 88 S.
Ct. at 1884, 20 L. Ed.
2d at 9ll. It was doubtless "confined in
scope to an intrusion reasonably designed to discover [weapons]
for the assault of the police officer." Ibid.
The decision to frisk and the scope of the frisk of
defendant were unlike the frisk at issue in Thomas, supra,
110 N.J. 673. There, the police received an anonymous tip that a man
named Ike was in possession of illegal drugs in a bar. Id. at
675. When the officers entered the bar, they spotted the
defendant, who fit the informant's description. One of the
officers recognized the defendant from a prior arrest for drug
possession. The officer immediately confronted the defendant,
patting him down in order to discover "possible weapons or
anything that [might have been] in his possession at the time."
Id. at 676.
Unlike the circumstances in this case, the circumstances in
Thomas could not have reasonably caused the officers to fear for
their safety. The frisk of Thomas occurred in a well-lit bar.
Three officers were on the scene. The informant had given no
indication that Thomas was armed, nor did any of the officers
have knowledge of the fact that the defendant had been armed on
previous occasions. Finally, the frisk of Thomas exceeded the
permissible scope of a Terry frisk in that it was designed to
uncover more than weapons. See also Ybarra, supra, 444 U.S. at
93-94, l00 S. Ct. at 343, 62 L. Ed.
2d at 247; Sibron v. New
York,
392 U.S. 40, 88 S. Ct. l889,
20 L. Ed.2d 9l7 (l968) (both
cases finding scope of frisk exceeded Terry's mandate).
Nor are the circumstances surrounding the frisk of defendant
analogous to those at issue in Lund, supra,
119 N.J. 35. There,
a state trooper stopped a car for minor motor-vehicle violations.
The trooper signalled the driver to pull the car over, and he
pulled up behind the car. The trooper then observed the driver
reach behind him to his left. Id. at 41. He approached the car
from the passenger side, observing a windbreaker stuffed in the
backseat in the vicinity of the movement that he had previously
observed. The trooper also observed a travel bag with a brown
bag on top of it in the backseat. The trooper then asked for the
driver's license and the car registration. The driver appeared
nervous, according to the trooper. Ibid. Based on those facts,
the trooper ordered the driver and passenger out of the car and
conducted a Terry frisk of both of them, which revealed no
weapons. Id. at 42. The trooper then proceeded to search the
car, while his partner guarded the driver and passenger outside
the car. The trooper removed the jacket, discovering a white
towel stuck in the seat. On removing the towel, he discovered a
large manila envelope containing cocaine. Ibid.
We concluded that the nervousness and the furtive movements
of the driver did not establish a specific particularized basis
for an objectively reasonable belief that defendants were armed
and dangerous. Id. at 48. Unlike Valentine, the car occupants
in Lund were not suspected of any criminal behavior. The sole
justification for the stop was a motor-vehicle violation.
Moreover, the officer in Lund had no knowledge that those
defendants had carried weapons on previous occasions.
As previously stated, no mathematical formula for determining what set of facts gives rise to a reasonable belief that a suspect is a potential threat to an officer and thus justifies a protective search for weapons. Instead, we must balance the competing interests. Balancing the right to be protected from unwarranted and overbearing police intrusions against the State's need for effective law enforcement and police safety, we hold that the frisk of defendant was reasonable under the totality of the circumstances. Officer Nuccio's personal knowledge of defendant's prior criminal history of armed robberies, weapons and drug offenses, the fact that defendant initially had his hands in his pockets, defendant's decision to
duck behind a tree after seeing a police car, defendant's
nervousness, defendant's failure to make eye contact with Officer
Nuccio, the high-crime nature of the area, and the time of the
night all contributed to Officer Nuccio's reasonable belief that
defendant was armed and dangerous. The frisk of defendant was,
therefore, reasonable.
Accordingly, we reverse the judgment of the Appellate
Division and reinstate the conviction.
Chief Justice Wilentz and Justices Handler, Pollock, O'Hern,
and Stein join in this opinion. Justice Clifford has filed a
separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
39 September Term l993
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RONALD VALENTINE,
Defendant-Respondent.
CLIFFORD, J., dissenting.
This case strikes me as not much more than a challenge to our ingenuity in teasing out of this slim record a range of nuances of conduct and speech that lead to a result favoring either admissibility or suppression. Had the issue come to us on a petition for certification rather than as an appeal as of right under Rule 2:2-1(a), I very much doubt that we would have taken the case. The controlling principles of law are firmly established; the problem arises with their application in an acutely fact-sensitive area. Because I think the majority in the court below has the better of the argument on that score, I would affirm substantially for the reasons set forth in its opinion.