(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 March 1, 1994 -- Decided June 22, 1994
O'HERN, J., writing for a unanimous Court.
The parties stipulated to the following facts: On October 10, 1989, Trenton police officers patrolled East
Stuyvesant Avenue and the 300 block of Rutherford Avenue in marked police vehicles. As the first patrol car
turned on to Stuyvesant Avenue, the officers in it saw two males sitting on the curb at the back of property that
fronted on Rutherford Avenue. One of the males was drinking from a bottle wrapped in a paper bag. When
the men saw the police car, the man with the bag stayed where he was. The other man, Stanley Tucker, Jr.,
quickly stood up, turned, and started running through the yard toward the front of the property on Rutherford
Avenue. An officer in the first car radioed a description of Tucker to the second car, which was on East
Rutherford Avenue.
When Tucker reached Rutherford Avenue, the second car intercepted him. One of the officers got out
of the car and pursued Tucker, who turned around and headed back to the rear of the yard. As Tucker ran past
the back porch of the house, he tossed a clear plastic bag into an opening in the porch. He then ran directly
into one of the officers from the first car, who stopped him. The bag was retrieved from under the porch. It
contained crack cocaine.
Tucker moved to suppress the evidence against him. The trial court held that the police had illegally
arrested Tucker by trapping him in the back yard. It further held that because the police had neither probable
cause nor a reasonable articulable suspicion to believe Tucker had committed a crime, neither an arrest nor an
investigatory stop was justified. The motion to suppress was denied, however, because the trial court concluded
that Tucker had abandoned the contraband by tossing it under the porch.
On appeal, the Appellate Division reversed. Although it agreed with the trial court that the police had
illegally seized Tucker, it concluded that there had been no legal "abandonment." The Supreme Court granted
both the State's petition for certification and Tucker's cross-petition for certification.
HELD: Under the stipulated facts of this case and the New Jersey state constitution, the police illegally seized
defendant. Because of that illegal seizure, the evidence against defendant must be suppressed.
1. The Court declines to adopt the United States Supreme Court's analysis of what constitutes a "seizure." In
lieu thereof, the Court will continue to rely on state constitutional grounds to determine whether a seizure of
a defendant has occurred. (pp. 4-8)
2. Under the stipulated facts of this case, a reasonable person would have believed that the police were intent
on capturing him, not simply wishing to speak with him. Surely Tucker could not have felt free to leave. A
"seizure" of Tucker occurred under state constitutional law. (pp. 8-10)
3. Under the sparse stipulated record in this case, the sole basis for the police action was Tucker's flight. Flight
must be accompanied by some circumstance present and unexplained that, in conjunction with the flight,
reasonably justifies an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid
an accusation based on that guilt. Although the police may have known more, the record before the Court does
not establish more. (pp. 10-15)
4. Because there was an unreasonable seizure of Tucker, the bag of cocaine must be suppressed. Under the
stipulated facts, there was no legal "abandonment." (pp. 16-18)
5. The problem with this case is that the Court has been forced to deal with abstract concepts of seizure law
divorced from the reality of the streets. Were all the circumstances known, it might well appear that the police
did not pursue Tucker simply because he ran. However, the Court must decide the case on the record before
it. (pp. 18-19)
6. The Court notes that police are not to be mere spectators of events. They may pursue persons to further
investigations. Furthermore, not every police pursuit is a seizure. However, manifestations of police authority,
unsupported by articulable suspicions of criminal activity, may turn a police pursuit into an unlawful seizure. (pp.
19-20)
The judgment of the Appellate Division is AFFIRMED.
JUSTICES CLIFFORD, HANDLER, POLLOCK, GARIBALDI, and STEIN join in JUSTICE O'HERN's
opinion. CHIEF JUSTICE WILENTZ did not participate.
SUPREME COURT OF NEW JERSEY
A-95/
135 September Term 1993
STATE OF NEW JERSEY,
Plaintiff-Appellant
and Cross-Respondent,
v.
STANLEY TUCKER, JR.,
Defendant-Respondent
and Cross-Appellant.
Argued March 1, 1994 -- Decided June 22, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
265 N.J. Super. 358 (1993).
Teresa A. Blair, Deputy Attorney General,
argued the cause for appellant and cross-respondent (Deborah T. Poritz, Attorney
General of New Jersey, attorney).
Frank J. Pugliese, Assistant Deputy Public
Defender, argued the cause for respondent and
cross-appellant (Susan L. Reisner, Acting
Public Defender, attorney).
The opinion of the Court was delivered by
O'HERN, J.
This appeal arises from an encounter between police and a young man sitting on a curb who fled after seeing the approach of a marked police car. The patrolling officers pursued the young man and radioed for assistance. A second police car on a nearby street responded to the call and traveled toward defendant.
Defendant, on seeing the second car, reversed course, and was
caught by the initial officers. He dropped a packet, which was
shown to contain cocaine. Following an unsuccessful motion to
suppress the evidence obtained in the encounter, defendant
pleaded guilty to third-degree possession of narcotics with
intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and
-5(b)(3), and the trial court sentenced him to a three-year
period of probation conditioned on successful completion of his
education at Mercer County Community College, continuation of
employment that does not interfere with his attendance at
college, and negative drug-testing results.
Defendant appealed the suppression ruling, and the Appellate
Division reversed. From that determination the State appeals,
raising three issues: First, did police seize defendant within
the meaning of the Fourth Amendment? Second, did they have
sufficient grounds to seize the defendant? Third, if the answer
to that second question is no, did defendant nonetheless abandon
the drugs?
The parties have stipulated to the facts. The issues are presented in somewhat of a vacuum because we sense that the record does not disclose all of the facts that the officers possessed at the time of the encounter. For purposes of this appeal, we will decide the case on the stipulated statement set
forth in the State's letter brief in response to defendant's motion to suppress. The stipulation establishes that on October 10, 1989, Trenton police officers, riding in marked police vehicles, patrolled East Stuyvesant Avenue and the 300 block of Rutherford Avenue. The streets are presumably parallel to each other. As the first patrol car turned onto Stuyvesant Avenue, the officers observed two males sitting on the curb at the rear of a house that has its frontage on Rutherford Avenue. One of the males was drinking from a bottle wrapped in a brown paper bag. When the men observed the marked police vehicle, the man with the brown paper bag remained on the curb while the other, subsequently identified as defendant, quickly stood up, turned, and started running through the yard toward the front of the property on Rutherford Avenue. An officer in the first patrol car immediately radioed a description of the fleeing man to officers in the second patrol car, which was on East Rutherford Avenue. When defendant reached Rutherford Avenue, the second patrol car intercepted him. One of the officers in that car got out and began to pursue defendant. Defendant turned around and ran back toward the rear of the yard. As defendant ran past the back porch of the house, he threw a clear plastic bag into an opening under the porch. He then ran directly into one of the officers from the first patrol car, who stopped him. The officer who stopped defendant turned him over to the other
officer and then retrieved the plastic bag from under the back
porch. It contained crack cocaine.
Defendant moved to suppress the evidence. The Law Division
reasoned that the police had illegally arrested defendant by
trapping him in the backyard. The trial court held that because
the police had neither probable cause nor a reasonable,
articulable suspicion to believe defendant had committed a crime,
neither an arrest nor an investigatory stop was justified.
However, that court denied the motion to suppress on the basis
that defendant had abandoned the contraband by tossing it under
the porch, thereby relinquishing any reasonable expectation of
privacy.
On appeal, the Appellate Division reversed. Although it
agreed with the trial court that the police had illegally seized
defendant, it held that the act of discarding the goods had been
the direct product of the illegal seizure rather than an
abandonment.
265 N.J. Super. 358, 360-61 (1993). We granted the
State's petition for certification,
134 N.J. 485 (1993), and
defendant's cross-petition for certification,
134 N.J. 567
(1993).
The United States Constitution protects persons from unreasonable searches and seizures. U.S. Const. amend IV. On the question of what constitutes a seizure, the State relies on
the principles established in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed.2d 690 (1991). In that case, a police officer patrolling a high-crime area in the late evening pursued Hodari on foot after Hodari and his companions separated and fled when they saw an unmarked patrol car. Just before the officer caught him, Hodari discarded an object. After tackling Hodari, the officer recovered the discarded object. It was crack cocaine. Hodari unsuccessfully challenged the admission of the evidence at the trial proceedings. The California Court of Appeal reversed on the basis that the police had seized Hodari illegally when they ran after him, and the court suppressed the evidence as the fruit of that seizure. Id. at 622-23, 111 S. Ct. at 1549, 113 L. Ed. 2d at 695. The California Supreme Court denied an application for review by the state. Id. at 623, 111 S. Ct. at 1549, 113 L. Ed. 2d at 695. The United States Supreme Court reversed, holding that no seizure had occurred. Id. at 626, 111 S. Ct. at 1550, 113 L. Ed. 2d at 697. It ruled that although the officer's chase displayed a show of authority, a seizure under the Constitution requires the application of physical force, however slight, or a show of authority to which the suspect yields. Id. at 626, 111 S. Ct. at 1551, 113 L. Ed. 2d at 697. Thus, because defendant did not comply with the officer's command to stop, the officer had not seized Hodari until he tackled him. Accordingly, the crack cocaine tossed
before the tackle was not the product of a seizure. Id. at 629,
111 S. Ct. at 1552, 113 L. Ed.
2d at 699.
The Appellate Division in this case found that under New
Jersey law a seizure had occurred. The court adopted the
approach of United States v. Mendenhall,
446 U.S. 544, 553-54,
100 S. Ct. 1870, 1877,
64 L. Ed.2d 497, 509 (1980), in which the
Court held that a seizure occurs "only when, by means of physical
force or a show of authority, [the suspect's] freedom of movement
is restrained" and "only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed
that he was not free to leave." Heretofore, this Court has
adopted that view. See State v. Davis,
104 N.J. 490, 498 (1986).
The question posed is whether we should revise our doctrine of
seizure to conform to the majority opinion in Hodari D. We
generally attempt to conform our search-and-seizure jurisprudence
to that of the United States Supreme Court. See State v. Hunt,
91 N.J. 338, 370 (1982) (Handler, J., concurring); see also
State v. Mollica,
114 N.J. 329, 353 (1989) (holding State
constitutional protection of privacy interest in person's
telephone records extends beyond that embraced by federal
constitution).
Hodari D.'s "seizure" analysis is conceptually similar to
the earlier analysis that required a trespass under property law
and seizure of tangible evidence as a basis sufficient to
establish a constitutional invasion. Olmstead v. United States,
277 U.S. 438, 464,
48 S. Ct. 564, 568,
72 L. Ed. 944, 950 (1928).
Those property-based principles have been subsumed in later years
by the question whether the person had a reasonable expectation
of privacy in the matter seized, be it a communication in the
form of a writing or an electronic record, or other tangible or
intangible evidence of guilt. See Katz v. United States,
389 U.S. 347, 352-53,
88 S. Ct. 507, 512,
19 L. Ed.2d 576, 582-83
(1967). For example, in State v. Hempele,
120 N.J. 182 (1990),
we did not concern ourselves with whether garbage from which
evidence had been obtained constituted property owned by the
accused. Rather, we addressed whether the accused had a
reasonable expectation that communications and other evidence of
his activities found in the garbage would not be subject to
warrantless searches by governmental authorities.
We have also viewed questions of search and seizure in terms
of the use of governmental authority to obtain evidence of
criminal activity. We have analyzed the issue of drug testing of
police officers in terms of whether the governmental compulsion
to produce bodily fluids was reasonable under the circumstances.
Rawlings v. Police Dep't,
133 N.J. 182, 188-89 (1993).
Thus, we have viewed the guarantees of the Constitution not
in terms of property law but in terms of protecting the
reasonable expectations of citizens to be "secure in their
persons, houses, papers and effects * * * ." N.J. Const. art. I,
¶ 7. The Court's reliance in Hodari D. on dictionary definitions
of seizure may be misplaced. In commenting on the decision in
Hodari D., Professor LaFave has noted:
"[I]t is not enough for the judge just to use
a dictionary," for such a limited approach
may produce a result "which would contradict
or leave unfulfilled" the "plain purpose" of
the provision being interpreted. Surely this
is likewise true for interpretation of the
Constitution, meaning that "the Fourth
Amendment safeguards against all evils that
are like and equivalent to those embraced
within the ordinary meaning of its words."
[T]he Court correctly states that the
officer's chase was not a common-law arrest,
but fails to point out that this conduct
amounted to an attempted arrest, which was
also unlawful at common law.
[3 Wayne R. LaFave, Search and Seizure §
9.2A(d), at 122 (2d ed. Supp. 1994) (quoting
Learned Hand, How Far is a Judge Free in
Rendering a Decision?, in The Spirit of
Liberty 103, 106 (I. Dilliard ed., 1952) and
Olmstead, supra, 277 U.S. at 488, 48 S. Ct.
at 576, 72 L. Ed. at 961 (Butler, J.,
dissenting)) (footnotes omitted).]
To conform our doctrine now to Hodari D. would require too
radical a change in our search-and-seizure law. We shall
continue to define a seizure under New Jersey constitutional law
in accordance with our existing precedent, Davis, supra,
104 N.J. 490, and decide this case on state constitutional grounds. State
v. Novembrino,
105 N.J. 95 (1987).
Applying that test, analysis of whether citizens are "secure
in their persons" depends on an objective analysis of all the
circumstances of their encounter. In other contexts, as in a
request to passengers on a bus to permit a search of baggage, "a
court must consider all the circumstances surrounding the
encounter to determine whether the police conduct would have
communicated to a reasonable person that the person was not free
to decline the officers' requests or otherwise terminate the
encounter." Florida v. Bostick, ___ U.S. ___, ___,
111 S. Ct. 2382, 2389,
115 L. Ed.2d 389, 402 (1991).
Under the circumstances of this case, although no evidence
shows that the police commanded defendant to halt or displayed
any weapons, the officers immediately pursued him when he ran.
The officers summoned assistance from a nearby patrol car to
attempt to set up a blockade with the police cars on the streets
at the front and rear of the yard when defendant started to run
away. As defendant ran through the yard, he observed a police
car closing in at the front yard. Defendant reversed his
direction. However, an officer approached him from the back
yard. Surely defendant could not have felt free to leave. Such
police actions would cause a reasonable person to believe that
the police wanted to capture him and not just to speak with him.
We do not believe that a person in such a situation would
reasonably feel free to "terminate the encounter." Ibid. In a
similar case (albeit a case with a command by the officers to
"Come Here"), the Maryland Court of Appeals ruled:
The approach by two officers, * * * the
immediate pursuit by the officers when [the
defendant] ran, the attempt to set up a
blockade with the police car when it was
apparent that [the defendant] was getting
away, the joinder of the third officer in the
posse, leaving the police car unattended, the
attempt by one of the pursuers to circumvent
a possible line of flight....all of these
measures were amply sufficient to communicate
to the reasonable person an attempt to
capture or otherwise intrude upon freedom of
movement.
[State v. Lemmon,
568 A.2d 48, 53 (1990).]
Therefore, we agree with the courts below that a seizure of the
person had occurred in these circumstances.
Was this seizure justified? After all, what are the police expected to do when they see a youth racing through a neighborhood? Did the police surmise that Tucker was not a jogger? If the police did nothing, they would be accused of neglect of duty. The police ought continue to follow the youth if they suspect criminal activity. Not every police pursuit is a seizure.
Otherwise, we would effectively reduce the role of a police officer to that of a mere spectator. Effective law enforcement techniques not only require passive police observation, but also necessitate their interaction with citizens on the streets. This interaction means that oftentimes the police must follow after and observe persons moving faster than a person walking at a normal pace.
[People v. Mamon,
457 N.W.2d 623,
628, (Mich. 1990).]
In Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 100 L. Ed.2d 565 (1988), the Court held that police conduct of
following and driving beside Chesternut as he ran away at the
sight of the police car did not constitute a seizure before
Chesternut discarded contraband. The Court reversed the lower
courts' dismissal of Chesternut's charges and remanded the case
for further proceedings.
We have emphasized the need for police to engage in
investigative processes to gather evidence of crime. New Jersey
has long recognized that a temporary street detention based on
less than probable cause may be constitutional.
A police officer charged with the duty of
crime prevention and detection and protection
of the public safety must deal with a rich
diversity of street encounters with citizens.
In a given situation, even though a citizen's
behavior does not reach the level of "highly
suspicious activities," the officer's
experience may indicate that some
investigation is in order. Depending on the
circumstances, street interrogation may be
most reasonable and proper.
[State v. Sheffield,
62 N.J. 441, 446, cert.
denied,
414 U.S. 876,
94 S. Ct. 83, 38
L. Ed.2d 121 (1973).]
Recently, in State v. Smith, 134 N.J. 599 (1994), we held that a police officer could order a passenger out of an automobile if the officer had an articulable suspicion short of probable cause to believe that a crime had been committed. So too, a police officer on patrol, as these officers were, having an articulable suspicion that citizens are engaged in illegal activity, has the right to question the suspects. In the landmark decision of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,
20 L. Ed.2d 889 (1968), to which our courts adhere, the Supreme
Court emphasized that a police officer has not only the right but
also the obligation to question suspicious people on the street
when it would be "poor police work" not to investigate further.
Id. at 23, 88 S. Ct. at 1881, 20 L. Ed.
2d at 907; see also State
v. Valentine,
134 N.J. 536, 553-54 (1994) (holding frisk of
defendant was reasonable based on officer's personal knowledge of
defendant's prior criminal history involving weapons and drugs;
fact that stop occurred after midnight in high-crime area;
officer's observation of defendant ducking behind tree and then
emerging with hands in pockets; and defendant's nervousness and
failure to make eye contact with officer); Davis, supra, 104 N.J.
at 507 (holding that "particularized suspicion" that youth was
engaged in criminal activity justified seizure).
Even in a pre-Terry decision, we recognized that "[t]he
police officer's duties include vital preventive roles" and that
reason and common sense dictate that the officer should clearly
"have the right to stop persons on the street for summary inquiry
where, as here, the circumstances are so highly suspicious as to
call for such inquiry." State v. Dilley,
49 N.J. 460, 464
(1967). In determining the reasonableness of the detention, we
concluded that all factors must be balanced, including the basis
of the suspicion on the part of the police officer and the nature
and extent of the restraint on the individual. Id. at 468. Once
a reasonable detention is established, "reactions by individuals
to a properly limited Terry encounter, * * * such as flight, may
often provide the necessary information, in addition to that the
officers already possess, to constitute probable cause."
Kolender v. Lawson,
461 U.S. 352, 366 n.4,
103 S. Ct. 1855, 1863
n.4,
75 L. Ed.2d 903, 915 n.4 (1983) (Brennan, J., concurring);
see 3 LaFave, supra, § 9.2(d) (2d ed. 1987).
Hence, under circumstances demonstrating particularized
suspicion as in Hodari D., such as a high-crime location or late
evening to early-morning hours, police would have greater
latitude to subject a citizen to an investigatory stop. The
difficulty with this case is that the sole basis asserted for
police action was the youth's flight. Although flight is
evidence that a fact finder may consider in assessing guilt, our
model jury charge requires that it be accompanied by some
evidence of criminality. The model jury charge states that
"[f]light may * * * be considered as evidence of consciousness of
guilt [only] if [the jury] should determine that the defendant's
purpose in leaving was to evade accusation or arrest for the
offense charged in the indictment." Model Jury Charges
(Criminal), Flight (November 18, 1991). Or, put the other way,
"For departure to take on the legal significance of flight, there
must be circumstances present and unexplained which, in
conjunction with the leaving, reasonably justify an inference
that it was done with a consciousness of guilt and pursuant to an
effort to avoid an accusation based on that guilt." State v.
Sullivan,
43 N.J. 209, 238-39 (1964) (emphasis added).
We are not as satisfied as the Supreme Court was in Hodari
D., supra, that the biblical observation that "`[t]he wicked flee
when no man pursueth'" is a satisfactory explanation of why a
young man in a contemporary urban setting might run at the sight
of the police. 499 U.S. at 623 n.1, 111 S. Ct. at 1549 n.1, 113
L. Ed.
2d at 696 n.1 (quoting Proverbs 28:1). That some city
residents may not feel entirely comfortable in the presence of
some, if not all, police is regrettable but true.
We are certain that had this record been made more complete,
it would more fully disclose the rationale that led the police to
pursue the youth. As the Appellate Division observed:
[W]hat this record does not show is also
highly persuasive: no observed criminal
activity; no particularized suspicious
conduct, such as the possession of suspicious
packages or the exchanging of money; no
reports of recent nearby crimes; no
descriptions of recent crime suspects; no
nearby potential or [actual] victims of
crimes; no nearby vehicle matching a
description of a vehicle involved in a recent
crime, or the like.
For example, the Appellate Division in State v. Doss, 254 N.J. Super. 122, certif. denied, 130 N.J. 17 (1992), held that police had justifiably stopped and interrogated the defendant because of the circumstances described in that record. On a November evening at 11:30, in unmarked vehicles, police were
patrolling a parking area where drug trafficking was known to be prevalent. Id. at 125. 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 whom he had previously observed on several occasions talking with convicted drug dealers. Ibid. The detective testified that he suspected that the defendant had run because he had committed a crime or that a warrant had issued for his arrest. Id. at 126. Those circumstances supported the officer's articulable suspicion to stop and interrogate defendant. As the Appellate Division in this case noted, "the only ostensible basis for [the police] to have pursued defendant was that defendant had inexplicably fled when he saw the police van." 265 N.J. Super. at 360. On that record, we do not find a basis to justify the police seizure of defendant. Unlike the circumstances in Valentine, supra, 34 N.J. at 540, the police did not assert knowledge of a prior criminal history on the part of Tucker. His record discloses that this was his first adult conviction. At the time of the offense, he was a high school graduate and had attended college for two
years. The police may have known more, but this record does not
establish more.
Finally, even though defendant's detention was invalid, we must consider whether defendant abandoned the evidence. The decision turns on our disposition of the "seizure" issue.
Although the decision in Chesternut, supra, precedes Hodari D., supra, the holding in Chesternut implies that discarded goods that are the product of an illegal seizure should be suppressed. 486 U.S. at 574, 108 S. Ct. at 1980, 100 L. Ed. 2d at 572.
Based on the holding in State v. Farinich, 179 N.J. Super. 1 (1981), aff'd, 89 N.J. 378 (1982), the trial court below ruled that the evidence need not be suppressed. In Farinich, the Appellate Division held that if evidence supports an inference that defendants had no desire to retrieve the belongings that they had discarded, a voluntary abandonment has occurred, permitting the police to search the discarded property without a warrant. In Farinich, the police received information that a suitcase arriving aboard a plane might contain marijuana. When two men claimed their suitcases from the baggage area of the airport, uniformed officers approached the men and led them to a side area for questioning. Farinich hit one officer's arm, dropped the suitcase, and ran. Id. at 4. Subsequently, the police apprehended the men, brought them to the baggage office,
and searched the suitcases, which contained marijuana. Id. at 4-5. The court found that the defendants had abandoned the
suitcases before the police had acted unreasonably, and,
therefore, no violation of defendants' Fourth Amendment rights
had occurred. Id. at 5. In Farinich, because the police
received a tip that Farinich's suitcase might contain marijuana,
they had articulable suspicion of criminal activity to stop and
question him. Thus, when Farinich abandoned his suitcase, he had
not been the subject of an unreasonable seizure. However, in
Tucker's case, the police seized him without articulable
suspicion prior to his abandonment of the plastic bag. Not until
Tucker found himself blocked by the police in the yard did he
toss the bag into the hole under the porch. The Farinich court
did say:
It has been held that while police may have
the right to make an inquiry, in the absence
of information that a crime has occurred a
suspect's failure to stop or his flight would
be an insufficient basis for seizure or
detention, but even in such case evidence
seized will not be suppressed if the suspect
abandoned it.
Although abandonment is "the voluntary relinquishment of all
right, title, claim and possession, with the intention of not
reclaiming it," Black's Law Dictionary 2 (5th ed. 1979),
Professor LaFave has noted:
"Property is not considered abandoned when a
person throws away incriminating articles due
to the unlawful actions of police officers."
Thus, where a person has disposed of property
in response to a police effort to make an
illegal arrest or illegal search, courts have
not hesitated to hold that property
inadmissible.
[1 LaFave, supra, § 2.6(b), at 471-72
(quoting State v. Reed,
284 So.2d 574, 575
(La. 1973)) (footnotes omitted).]
The issue is whether the abandonment was the product of an
illegal seizure. That issue is one of fact and depends on
whether the relationship of the act of abandonment with the
official conduct is so attenuated that it allows admission of the
evidence. See State v. Johnson,
118 N.J. 639, 653 (1990). As
Professor LaFave explains: "Incriminating admissions and
attempts to dispose of incriminating evidence are common and
predictable consequences of illegal arrests and searches, and
thus to admit such evidence would encourage such Fourth Amendment
violations in future cases." 4 LaFave, supra, § 11.4(j), at 459-60. The Appellate Division below held that "[t]he contraband
jettisoned by defendant in response to the improper police
conduct thus should have been suppressed." 265 N.J. Super. at
360-61. Because we have held that there was an unreasonable
seizure, we agree that the goods were not abandoned.
To sum up, there can be no doubt of "the need for strengthened law enforcement tools to combat the epidemic of crime that plagues our Nation. The concern of our citizens with
curbing criminal activity is certainly a matter requiring the
attention of all branches of government." Kolender, supra, 461
U.S. at 361, 103 S. Ct. at 1860, 75 L. Ed.
2d at 911. The
problem with this case is that we are forced to deal in abstract
concepts of seizure divorced from the reality of the streets.
Were all of the circumstances known, we rather suspect that it
would appear that the police did not pursue Tucker just because
he ran. However, we must decide the case on the record that is
before us.
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. Defendant's abandonment of the evidence
transpired after defendant no longer was free to leave and after
the police had unlawfully seized him; therefore, the Appellate
Division properly excluded the evidence.
We affirm the judgment of the Appellate Division.
Justices Clifford, Handler, Pollock, Garibaldi, and Stein join in this opinion. Chief Justice Wilentz did not participate.