(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 December 3, 1996 -- Decided March 18, 1997
HANDLER, J., writing for a unanimous Court.
The primary issue on appeal is whether police officers had sufficient justification to carry out the
investigatory stop of Christopher Arthur's car, which led to a seizure of illegal drugs from his person. Also
addressed is whether an investigatory stop of a passenger who had exited Arthur's car and the seizure of
drug paraphernalia from her were unlawful and, for that reason, invalidated the subsequent stop and search
of Arthur.
Detective Smallwood was engaged in covert surveillance in an area known for heavy narcotics
activity. On June 26, 1993, Detective Smallwood observed defendant, Christopher Arthur, park his car on
the street and a person, later identified as Deborah Walls, enter the car on the passenger side, sit next to
Arthur for a short time, and then exit the car holding a paper bag. Detective Smallwood concluded that
Walls had obtained the bag during her encounter with Arthur because she was not observed carrying the bag
prior to entering the car and because she could not have concealed the bag under her clothing. Based on his
past experience, Detective Smallwood believed that he had just witnessed a drug transaction. Walls was
subjected to an investigatory stop and the bag she was holding was searched. Found in the bag were
narcotics paraphernalia: between 100 and 200 glass vials containing a white residue. Walls was placed under
arrest.
Arthur's car, which had left the scene, was later stopped by a police patrol car that had received a
radio transmission regarding suspected drug activity from Detective Smallwood. On being stopped, Arthur
exited the vehicle and spontaneously stated that he had drugs in his pocket. The police searched him and
found three vials of crack cocaine.
Arthur was indicted for third-degree possession of cocaine. He moved to suppress the cocaine
evidence, alleging that the arresting officers did not have a legal basis for stopping his vehicle. The trial
court denied the motion, finding that Detective Smallwood had formed a clear, articulable suspicion sufficient
to stop both Walls and Arthur after observing Walls leave Arthur's vehicle with the paper bag. The court
also found that the police were entitled to order Arthur out of the car after the car had been stopped, and
that when Arthur had informed the detectives that he was carrying three bottles, the police had probable
cause to search him and to seize the vials of cocaine. Lastly, the court concluded that, even if the search and
seizure of Walls had been improper, Arthur's arrest had been entirely lawful.
After the denial of his suppression motion, Arthur entered a guilty plea, reserving the right to appeal
on the suppression issue. On appeal, the Appellate Division reversed the denial of Arthur's motion to
suppress and remanded the matter to the trial court, concluding that the police had not possessed a
reasonable and articulable suspicion to stop Arthur independent of the evidence seized from Walls.
According to the Appellate Division, the search of Walls had been unlawful and, since the fruits of that
search could not have been used to support a reasonable suspicion of illegal drug activity, the stop of Arthur
had also been unlawful.
The Supreme Court the State's petition for certification.
HELD: The police had sufficient justification to carry out the investigatory stop of Christopher Arthur's car
because the facts as observed by the police officer in light of his experience, apart from the drug
paraphernalia seized from the passenger, objectively gave rise to a reasonable and articulable suspicion that
Arthur was engaged in illegal narcotics activity. Furthermore, the unlawful search of the passenger did not
invalidate the otherwise objectively reasonable investigatory stop and search of Arthur.
1. Under Terry v. Ohio, police have a limited ability to conduct investigatory stops and protective searches
of persons suspected of criminal activity. To determine whether the police conduct in conducting an
investigatory stop violates the Fourth Amendment's protection against unreasonable search and seizure,
courts must balance the need to search or seize against the invasion that the search or seizure entails. When
determining if the officers' actions were reasonable, consideration must be given to the specific reasonable
inferences that the officer is entitled to draw from the facts in light of his or her experience. Inarticulate
hunches or an arresting officer's subjective good faith cannot justify an infringement of a person's Fourth
Amendment rights. Rather, the officer must be able to point to specific and articulable facts which, taken
together with the rational inferences from those facts, reasonably warrant the intrusion. (pp. 7-11)
2. The Appellate Division failed to give sufficient weight to the officer's knowledge and experience and to
the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of that
expertise. Simply because a defendant's actions might have some speculative, innocent explanation does
not mean that those actions cannot support articulable suspicions, if a reasonable person would find the
actions are consistent with guilt. Thus, the trial court properly determined that the facts, apart from the drug
paraphernalia seized from the passenger, as observed by Detective Smallwood in light of his experience,
objectively gave rise to a reasonable and articulable suspicion that Arthur was engaged in illegal narcotics
activity. Thus, the stop of his car was justified. (pp. 11-13)
3. The Appellate Division determined that Arthur had standing to object to the illegal search of Walls. The
court need not reach or resolve the issue of standing since it is satisfied that the investigatory stop of
Arthur's vehicle can be based on grounds giving rise to an articulable and reasonable suspicion of criminal
activity independent of the incriminating evidence seized from Walls. (pp. 13-16)
4. Under Terry, a limited exploratory search is permissible to preserve the safety of an officer if, under the
circumstances, the officer reasonably believes that the suspect may be armed and dangerous. The purpose of
the search is not to discover evidence of a crime, but to allow the officer to pursue the investigation without
fear of violence. The officers did not believe that Walls was armed and dangerous. Thus, although
Detective Smallwood's observations justified the investigatory stop of Walls, they did not justify the
subsequent search of her person. Nevertheless, absent the evidence seized from Walls, the remaining facts,
viewed objectively from the standpoint of an experienced and knowledgeable police officer, were sufficient to
support an articulable and reasonable suspicion that Arthur had been engaged in criminal activity.
Consequently, the unlawful search of Walls would not render illegal the otherwise objectively reasonable
investigatory stop of Arthur. (pp. 16-19)
5. A driver may be ordered to exit his or her vehicle after a Terry stop. Here, the police acted
appropriately when they ordered Arthur to exit his vehicle. Once he exited his vehicle, Arthur stated to
detectives that he had “bottles,” a commonly used street term for vials of cocaine. Arthur's explicit
admission of drug possession gave the police probable cause to search him. (pp. 19-20)
Judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and
COLEMAN join in JUSTICE HANDLER's opinion.
SUPREME COURT OF NEW JERSEY
A-
58 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CHRISTOPHER ARTHUR,
Defendant-Respondent.
Argued December 3, 1996 -- Decided March 18, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
287 N.J. Super. 147 (1996).
Deborah C. Bartolomey, Deputy Attorney
General, argued the cause for appellant
(Peter G. Verniero, Attorney General of New
Jersey, attorney).
M. Virginia Barta, Assistant Deputy Public
Defender, argued the cause for respondent
(Susan L. Reisner, Public Defender).
The opinion of the Court was delivered by
HANDLER, J.
A police officer, engaged in covert surveillance in an area known for heavy narcotics activity, observed defendant park his car on the street and a person enter the car on the passenger
side, sit next to defendant for a short time, and then exit the
car with a paper bag. The officer, believing that a drug sale
had occurred, subjected the passenger to an investigatory stop
and searched the bag. He found narcotics paraphernalia in the
bag. Defendant's car, which had left the scene, was later
stopped by the police. On being stopped, defendant
spontaneously stated he had drugs in his pocket, as a result of
which the police searched him and found cocaine.
The basic issue raised by defendant's conviction for
possession of the cocaine is whether the officers had sufficient
justification to carry out the investigatory stop of his car,
which led to the seizure of the drugs from his person. Because
the drug-related items seized from the passenger may have been a
relevant circumstance giving rise to the reasonable suspicion
that was necessary to justify the stop of defendant's vehicle,
the Court must also consider whether the investigatory stop of
the passenger and the seizure of drug paraphernalia from her were
unlawful and, for that reason, invalidated the subsequent stop
and search of defendant.
On June 26, 1993, Detective Harem Smallwood and a team of Plainfield narcotics detectives conducted an undercover surveillance operation on the 1100 block of West Third Street, an area known for drug trafficking. At approximately 12:20 p.m., Detective Smallwood observed, through binoculars from a distance
of approximately 150 feet, a white Ford Tempo drive into the area
and park on West Third Street. Nothing obstructed Detective
Smallwood's view. It was a clear, sunny day. The driver, later
identified as defendant, was the sole occupant of the automobile.
Defendant sat alone in the car for about two minutes until a
woman, later identified as Deborah Walls, walked up to the
vehicle and entered it from the passenger's side. Detective
Smallwood had not encountered either defendant or Walls before
that day.
Defendant and Walls, who were visible to the detective only
from the chest up, talked to each other in the car for about five
minutes. As Walls emerged from the car, she "started looking
around really suspiciously, looking back and forth up and down
the street." She was carrying a brown paper shopping or grocery
bag that had been rolled down so that it was approximately five
inches high. Walls had the bag tucked under her arm "like a
running back would hold a football," and she began walking away
from the car. Defendant drove away in a different direction.
Detective Smallwood concluded that Walls had obtained the
bag during her encounter with defendant, as the officer did not
observe the bag on her when she entered the car and as Walls
could not have concealed the bag under her clothing. He believed
that he had just witnessed a drug transaction based on his
experience as a detective in over 1,000 narcotics investigations,
"the numerous times [he] [had] seen people transferring and pass
narcotics in paper bags and make dropoffs," "the area," and the
suspicious nature of the pair's activities. The detective
broadcast a description of defendant's vehicle and advised of its
direction of travel. He then radioed Detectives Newman and
Hoose, who were patrolling the area in a marked vehicle, and
instructed them to stop Walls. Detective Hoose stopped Walls and
immediately grabbed the bag from her. He looked inside and found
between 100 and 200 glass vials containing a white residue.
Walls was placed under arrest. Either Detective Hoose or
Detective Newman radioed Detective Smallwood and advised him that
Walls had been in possession of "used vials." Detective
Smallwood would later testify that the glass vials used to
package cocaine are regularly recycled by "the street people."
After hearing from Detectives Hoose and Newman, Detective
Smallwood radioed a description of defendant's car, together with
its license plate number, to all nearby units. He requested that
defendant's car be stopped based on the suspicion that defendant
possessed drugs or narcotics paraphernalia in his vehicle.
Almost immediately after receiving Detective Smallwood's second
transmission, Detectives Williams and Hawkins, patrolling in a
marked car, spotted defendant's automobile approaching. They
permitted defendant to pass, made a U-turn, and pulled over
defendant's car. Both detectives exited the patrol car
simultaneously. Detective Williams approached the Tempo from the
driver's side, while Detective Hawkins approached from the
passenger's side. As they neared defendant, the detectives
ordered him out of the car. As he exited the vehicle, defendant
blurted out that he had "bottles" in his back pocket. Detective
Williams understood "bottles" to mean "glass vials of cocaine" in
street parlance. He then retrieved and confiscated three vials
of crack cocaine from defendant's right rear pants pocket and
placed him under arrest.
Defendant was indicted for third-degree possession of
cocaine in violation of N.J.S.A. 2C:35-10(a)(1). Defendant later
moved to suppress the cocaine alleging that the arresting
officers did not have a legal basis for stopping his vehicle.
The trial court denied the motion. Thereafter, defendant entered
a guilty plea, reserving the right to appeal the denial of his
motion to suppress. He was sentenced to three years of
probation, ordered to perform five hours of community service
every month for a year, and had his driving privileges suspended
for six months. A $1,000 DEDR penalty, $50 lab fee, and $50 VCCB
penalty were imposed.
On appeal, the Appellate Division reversed the denial of
defendant's motion to suppress and remanded the matter.
287 N.J.
Super. 147 (1996). This Court then granted the State's petition
for certification.
145 N.J. 373 (1996).
The basic issue in this case is the validity of the officers' stop of defendant's automobile, which led to the seizure of drugs from defendant. The lower courts had two very
different views of the significance of the several circumstances
surrounding the stop of the vehicle.
On defendant's motion to suppress, the trial court found
that the officers had formed a "clear articulable suspicion"
sufficient to stop both Walls and defendant after Detective
Smallwood had witnessed Walls leave defendant's vehicle with the
paper bag. The court also found that the police were entitled
to order defendant out of the car after the car had been stopped,
and, that when defendant had informed the detectives that he
was carrying "three bottles," the police had probable cause to
search defendant and to seize the vials of cocaine. Further, the
court concluded that, "even if the search and seizure of Miss
Walls was improper," defendant's arrest would remain entirely
lawful.
The Appellate Division concluded that the interplay between
defendant and Walls was relevant in determining whether the stop
of defendant had been justified. 287 N.J. at 153. It noted that
the transaction had occurred at midday, and that the detectives
had had no previously acquired knowledge of defendant or Walls.
It determined that Detective Smallwood had observed no
transaction, no exchange of money, and no furtive gestures, and
that he had "acted upon a hunch." Ibid. Commenting that
"[p]urely innocent connotations [could] be ascribed to the
observed conduct," ibid., the Appellate Division concluded that
the "totality of the circumstances . . . did not rise to the
level of reasonable suspicion." Ibid. Specifically, it found
that the police had not possessed an articulable suspicion to
stop defendant independent of the evidence seized from Walls.
Id. at 153-54. According to the court, because the search of
Walls had been unlawful, the fruits of that search could not have
been used to support reasonable suspicion of illegal drug
activity, and thus the stop of defendant had also been unlawful.
Id. at 156-57.
The standards by which the reasonableness of police conduct
involving an investigatory stop of a person or an automobile
originate with Terry v. Ohio,
392 U.S. 1,
88 S. Ct. 1868,
20 L.
Ed.2d 889 (1968). In Terry, the United States Supreme Court
recognized that the Fourth Amendment's protection against
unreasonable search and seizure limited law enforcement's ability
to conduct investigatory stops and protective searches of persons
suspected of criminal activity. The Supreme Court stated that
the reasonableness of the police conduct in conducting an
investigatory stop in light of the Fourth Amendment could be
generally assessed by "'balancing the need to search (or seize)
against the invasion which the search (or seizure) entails.'"
Id. at 21, 88 S. Ct. at 1879, 20 L. Ed.
2d at 905 (quoting Camara
v. Municipal Court,
387 U.S. 523, 536-37,
87 S. Ct. 1727, 1735,
18 L. Ed.2d 930, 940 (1967)). The facts used in that balancing
test are to be judged objectively: "would the facts available to
the officer at the moment of the seizure or the search warrant a
man of reasonable caution in the belief that the action taken was
appropriate?" Id. at 21-22, 88 S. Ct. at 1880,
20 L. Ed 2d at
906 (internal quotations omitted). When determining if the
officer's actions were reasonable, consideration must be given
"to the specific reasonable inferences which he is entitled to
draw from the facts in light of his experience." Id. at 27, 88
S. Ct. at 1883, 20 L. Ed.
2d at 909. Neither "inarticulate
hunches" nor an arresting officer's subjective good faith can
justify an infringement of a citizen's constitutionally
guaranteed rights. Id. at 21, 88 S. Ct. at 1880, 20 L. Ed.
2d at
906. Rather, the officer "must be able to point to specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant [the] intrusion." Ibid.
In Adams v. Williams,
407 U.S. 143,
92 S. Ct. 1921,
32 L.
Ed.2d 612 (1972), the Supreme Court clarified the scope of
Terry:
The Fourth Amendment does not require a
policeman who lacks the precise level of
information necessary for probable cause to
arrest to simply shrug his shoulders and
allow a crime to occur or a criminal to
escape. On the contrary, Terry recognizes
that it may be the essence of good police
work to adopt an intermediate response. A
brief stop of a suspicious individual, in
order to determine his identity or to
maintain the status quo momentarily while
obtaining more information, may be most
reasonable in light of the facts known to the
officer at the time.
[Id. at 145-46, 92 S. Ct. at 1923,
32 L. Ed.
2d at 616-17 (citations
omitted).]
In State v. Thomas, 110 N.J. 673 (1988), this Court explicitly adopted the Terry analysis. The Court noted that the level of reasonable suspicion necessary to justify an
investigatory stop is "something less than the probable cause
standard needed to support an arrest." Id. at 678. The officer
"must be able 'to point to specific and articulable facts which,
taken together with the rational inferences from those facts,
reasonably warrant' the intrusion." Ibid. (quoting Terry, supra,
392 U.S. at 21, 88 S. Ct. at 1879, 20 L. Ed.
2d at 906). There
must be "some objective manifestation that the suspect was or is
involved in criminal activity." Ibid. (citing United States v.
Cortez,
449 U.S. 411, 417,
101 S. Ct. 690, 695,
66 L. Ed.2d 621,
628 (1981)); see also State v. Valentine,
134 N.J. 536 (1994)
(finding Terry stop reasonable under totality of circumstances).
In 1975, Terry was explicitly applied to automobile stops in
United States v. Brignoni-Ponce,
422 U.S. 873,
95 S. Ct. 2574,
45 L. Ed.2d 607 (1975). The Supreme Court held that "officers
. . . may stop vehicles only if they are aware of specific
articulable facts, together with the rational inferences from
those facts, that reasonably warrant suspicion that the vehicles"
were involved in criminal activity. Id. at 884, 95 S. Ct. at
2582, 45 L. Ed.
2d at 618. Considering whether the circumstances
indicated possible criminal activity, namely, the presence of
illegal aliens in the automobile, the Supreme Court ruled that
the officers' unsubstantiated belief that the occupants of the
car could be illegal aliens failed to provide a reasonable belief
justifying the stop. Id. at 885-86, 95 S. Ct. at 2582-83, 45 L.
Ed.
2d at 619.
In Cortez, supra,
449 U.S. 411,
101 S. Ct. 690,
66 L. Ed.2d 621, the Supreme Court approved an investigatory vehicle stop.
Applying Terry, the Supreme Court determined that the test was
not whether the officers had probable cause to conclude that the
vehicle would contain illegal aliens, but whether the experienced
officers, based on the totality of the circumstances, "could
reasonably surmise that the particular vehicle they stopped was
engaged in criminal activity." Id. at 421-22, 101 S. Ct. at 697,
66 L. Ed.
2d at 631.
The principles articulated by the United States Supreme
Court in Brignoni-Ponce and Cortez have been applied and
elaborated upon in a variety of contexts. For example, in United
States v. Trullo,
809 F.2d 108 (1st Cir.), cert. denied,
482 U.S. 916,
107 S. Ct. 3191,
96 L. Ed.2d 679 (1987), the court held
that in deciding whether to stop an automobile an officer could
consider the nature of the area in which the conduct occurred,
whether the conduct was suspicious, and whether the defendant's
behavior was indicative "of some sort of illegal transaction" in
light of the officers' experience. Id. at 1111-12. The Circuit
Court in United States v. Santana,
485 F.2d 365 (2d Cir. 1973),
cert. denied,
415 U.S. 931,
94 S. Ct. 1444,
39 L. Ed.2d 490
(1974), ruled that officers could legitimately conclude that they
possessed enough information to justify an automobile stop based
on the presence of paper bags considered together with the
defendant's reputation as a drug trafficker. Id. at 366, 368.
The Ohio Supreme Court in State v. Bobo,
524 N.E.2d 489, cert.
denied,
488 U.S. 910,
109 S. Ct. 264,
102 L. Ed.2d 252 (1988),
sustained a police stop of the defendant's vehicle because the
car was parked in a high crime area, the time was approximately
11:20 p.m., the defendant acted in a furtive manner, the officers
knew area and were familiar with how drug transactions transpire,
and the lead officer was a veteran who had made hundreds of
arrests. Id. at 491-92.
The facts and the rational inferences underlying the
investigatory stop are derived from Detective Smallwood's
observations. He perceived that (1) defendant drove his
automobile into and parked on the street in an area known for
high levels of narcotics activity; (2) Walls entered defendant's
car, remained there for a short period of time engaged in
conversation with defendant, and exited the vehicle carrying a
paper bag she had not possessed when she entered the car; (3)
defendant immediately drove off after Walls exited the vehicle;
(4) paper bags are often used to transport drugs (see, e.g.,
Santana, supra, 485 F.
2d at 366 (holding, before Brignoni-Ponce
and Cortez, that automobile stop for investigatory purpose was
proper, and noting that, although paper bags often contain items
other than drugs, use of paper bags "has long been a sort of
hallmark of the narcotics business")); and (5) Walls engaged in
furtive movements upon exiting the vehicle and tried to conceal
the bag that she had obtained from defendant. The detective thus
concluded that defendant had engaged in illegal drug activity.
The Appellate Division reached a different conclusion in
interpreting the facts known to Detective Smallwood. In
recasting the significance of the observed facts, the appellate
court failed to ascribe sufficient weight to the officer's
knowledge and experience and to the rational inferences that
could be drawn from the facts objectively and reasonably viewed
in light of the officer's expertise. The court noted that "[n]o
transaction was observed." 287 N.J. Super. at 153. Although
that is literally true, it was readily inferable that Walls had
obtained the paper bag while inside defendant's car. The court
also claimed that "[n]o furtive gestures were observed." Ibid.
On the contrary, Detective Smallwood relied in part on Walls's
looking around in a suspicious manner and the manner in which she
carried the bag. Id. at 151. Finally, the appellate court gave
little weight to the fact that defendant's car was located in an
area known for drug trafficking. Id. at 153.
The Appellate Division also noted that "purely innocent
connotations may be ascribed to the observed conduct." Ibid.
The court's comment is not surprising. "It must be rare indeed
that an officer observes behavior consistent only with guilt and
incapable of innocent interpretation." United States v. Viegas,
639 F.2d 42, 45 (1st Cir.), cert. denied,
451 U.S. 970,
101 S.
Ct. 2046,
68 L. Ed.2d 348 (1981). Police officers should
consider whether a defendant's actions are more consistent with
innocence than guilt; however, simply because a defendant's
actions might have some speculative innocent explanation does not
mean that they cannot support articulable suspicions if a
reasonable person would find the actions are consistent with
guilt. E.g. Trullo, supra,
809 F.2d 108, 111-12 (finding under
"totality of the circumstances" that the defendant's movements
could have been interpreted as consistent with those made by one
engaged in a drug transaction sufficient to justify a stop for
investigatory purposes and that the stop was justified even
though purely innocent connotations could be ascribed to the
observed conduct); Viegas, supra, 639 F.
2d at 45 (holding that
officers are not required to refrain from stops when activity
could be innocently explained and stating that Terry standard
does not require officers to determine if the defendant's acts
"can be construed as innocent through speculation"); Bobo, supra,
523 N.E.
2d at 492 (concluding under "totality of the
circumstances" that the defendant's movements could have been
interpreted as consistent with those made by one engaged in a
drug transaction sufficient to justify stop for investigative
purposes).
We are satisfied that the trial court correctly determined
that the facts, apart from the drug paraphernalia seized from the
passenger, as observed by Detective Smallwood in light of his
experience, objectively gave rise to a reasonable and articulable
suspicion that defendant was engaged in illegal narcotics
activity. Thus, the stop of defendant's car was justified.
The question implicit in that determination is whether on this record the facts giving rise to a reasonable suspicion of criminal conduct by defendant can be considered without regard to the drug paraphernalia seized from Walls. The Appellate Division, as noted earlier, determined that the seizure of evidence from Walls was itself invalid, and, because the stop of defendant was intertwined with the stop and search of Walls, the stop of defendant's car was invalid as well. 287 N.J. Super. at 154-57.
In reaching that conclusion, the Appellate Division determined first that defendant had standing to object to the prior illegal search of Walls. Because the evidence seized from Walls may be disregarded in determining the validity of the investigatory stop of defendant, we need not reach the question of whether defendant would have standing to contest the illegal search of the bag that Walls was carrying. Nevertheless, in view of the Appellate Division's perception that the events were interconnected and that defendant had standing to challenge the search of the passenger, it is appropriate to note certain considerations that bear on the issue of standing in the context of this case. Although State v. Alston, 88 N.J. 211, 227-29 (1981), and State v. Mollica, 114 N.J. 329, 339 (1989), established a broad standing rule, those decisions did not address the standing requirement in cases in which a defendant clearly had abandoned or relinquished his possessory interest in
the property being seized or in which his participatory interest
in that property had become very remote or attenuated at the time
of the seizure. Cf. State v. Smith,
291 N.J. Super. 245, 261-62 (App. Div. 1996) (finding standing in situation in which the
defendant secretes drugs in an apartment to which he had
unlawfully and forcibly gained entry, but refusing to suppress
evidence because the defendant had absolutely no privacy interest
in the place that was searched), certif. granted __ N.J. __
(1997). On the other hand, our standing rule is unquestionably
broad and necessarily would apply where a defendant's
abandonment or relinquishment of the seized items did not
extinguish all privacy interests, see State v. Hempele,
120 N.J. 182 (1990), or where a participatory interest in evidence remains
because, for example, a conspiracy or criminal enterprise is
implicated. See Mollica, supra, 114 N.J. at 340. We note,
further, that our standing rule has been invoked only in cases in
which a defendant has sought to suppress evidence that the State
seeks to use directly against the defendant at trial, and not, in
a case such as this, in which the seizure of the evidence
allegedly violated the privacy interests of another person and is
not sought to be used as evidence against the defendant to prove
guilt, but only to justify an investigatory stop of the
defendant.
We do not reach or resolve the issue of defendant's standing
to challenge the seizure of drugs from Walls because we are
satisfied that the investigatory stop of defendant's vehicle can
be based on grounds giving rise to an articulable and reasonable
suspicion of his criminal activity independent of the
incriminating evidence seized from Walls. That determination is
significant because it appears that the search of Walls was
unlawful.
Under Terry, a limited exploratory search is permissible to
preserve the safety of an officer if, under the circumstances,
the officer reasonably believes that the suspect may be armed and
dangerous. Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20
L. Ed.
2d at 909; see also Sibron v. New York,
392 U.S. 40, 64,
88 S. Ct. 1889, 1903,
20 L. Ed.2d 917, 935 (1968) (ruling that
the officer "must be able to point to particular facts from which
he reasonably inferred that the individual was armed and
dangerous"). The purpose of the search "is not to discover
evidence of crime, but to allow the officer to pursue his
investigation without fear of violence." Adams v. Williams,
supra, 407 U.S. at 146, 92 S. Ct. at 1923, 32 L. Ed.
2d at 617.
That search must be confined to an intrusion designed to discover
weapons that could be used to assault the officer. Terry, supra,
392 U.S. at 29, 88 S. Ct. at 1884, 20 L. Ed.
2d at 911. That
dimension of the Terry doctrine requires that the presence of
weapons must be apprehended. See Ybarra v. Illinois,
444 U.S. 85, 93-94,
100 S. Ct. 338, 343,
62 L. Ed.2d 238, 247 (1979)
("Nothing in Terry can be understood to allow a generalized
'cursory search for weapons' or, indeed, any search whatever for
anything but weapons.").
In Thomas, supra,
110 N.J. 673, this Court applied Terry to
the frisk of a defendant and concluded that the record failed to
establish "a specific and particularized basis for an objectively
reasonable belief that defendant was armed and dangerous" on
which the search could be based. Id. at 683. We reached a
different result in Valentine, supra,
134 N.J. 536, because we
concluded that all of the facts, when taken together, justified
the officer's reasonable suspicion that the suspect could be
armed and that the subsequent pat-down search was solely designed
to discover weapons that could be used against him. Id. at 551-52; see State v. Johnson,
274 N.J. Super. 137, 154-56 (App. Div.)
(concluding that the seizure and protective search of the
defendant's pocketbook was justified based on the trooper's
reasonable suspicion that a weapon was in the pocketbook and that
his safety was in danger), certif. denied,
138 N.J. 265 (1994).
Significantly, here, the detectives did not believe that
Walls was armed and dangerous. Detective Smallwood's observation
of a possible drug transaction between two people could not by
itself justify a protective search. Cf. Thomas, supra, 110 N.J.
at 684 (indicating that an officer might be justified in
believing that a "substantial dealer in narcotics" in a "high-crime area" could be armed and dangerous). Detective Smallwood
and his colleagues harbored no such belief that Walls "was armed
and dangerous." Rather, the police were simply attempting to
discover drugs or drugs paraphernalia.
Thus, we conclude that although Detective Smallwood's
observations justified the investigatory stop of Walls, they did
not justify the subsequent search of her person. Nevertheless,
it is clear that even though circumstances do not give rise to a
reasonable suspicion that a person is armed, the person may
still be subjected to a investigatory stop. See State v.
Garland,
270 N.J. Super. 31, 42-43 (App. Div.) (concluding that
the initial investigatory stop of defendant was permissible under
Terry, even though the seizure and search of defendant's paper
bag was invalid because officers had no reason to believe that
the defendant was armed and dangerous), certif. denied,
136 N.J. 296 (1994).
We find that the facts necessary to justify the
investigatory stop of defendant can be properly considered
without giving any separate and independent weight to the drug
paraphernalia seized from Walls. The determination whether an
articulable reasonable suspicion exists to undertake an
investigatory stop of a person is based on an objectively-reasonableness standard. Terry, supra, 392 U.S. at 21-22, 88 S.
Ct. at 1880, 20 L. Ed.
2d at 906; see also State v. Bruzzese,
94 N.J. 210, 219-21 (1983) (holding that probable cause to search is
based objectively on the understanding of an experienced and
reasonable police officer), cert. denied,
465 U.S. 1030,
104 S.
Ct. 1295,
79 L. Ed.2d 695 (1984). This standard was correctly
applied by the trial court in determining that, without regard to
the evidence seized from Walls, the remaining facts, viewed
objectively from the standpoint of an experienced and
knowledgeable police officer, were sufficient to support an
articulable and reasonable suspicion that defendant had been
engaged in criminal activity. Consequently, the unlawful search
of Walls is not a factor that would render illegal the otherwise
objectively reasonable investigatory stop of defendant.
The final issue is whether the police lawfully searched defendant after his vehicle was stopped. Expanding the functional scope of Brignoni-Ponce, the United States Supreme Court held in Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed.2d 331, 337 (1977), that a driver may be ordered to exit his vehicle after a Terry stop. Not only is this not a serious intrusion on the sanctity of the person, but it "hardly rises to the level of a petty indignity." Ibid. The Supreme Court ruled that "[w]hat is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety." Ibid.; cf. Maryland v. Wilson, __ U.S. __, __ S. Ct. __, __ L. Ed.2d __ (1997) (applying Mimms to passengers as well).
In State v. Smith, 134 N.J. 599 (1994), this Court explicitly adopted the principle articulated in Mimms, holding that an officer may order a driver to exit his vehicle after he had been "lawfully detained." Id. at 609 (quoting Mimms, supra, 434 U.S. at 109, 98 S. Ct. at 332, 54 L. Ed. 2d at 336). After
considering the enhanced protections offered by our State
Constitution, the Court determined that "Mimms . . . as applied
to drivers, satisfies the New Jersey Constitution." Id. at 611;
cf. id. at 617-19 (refusing, prior to Wilson, to apply Mimms per
se rule to passengers). There is, therefore, little doubt that
the police acted appropriately when they ordered defendant to
exit his vehicle.
After defendant exited his vehicle, he stated to the
detectives that he had "bottles." Courts have recognized that
"bottles" is a slang expression that is understood to mean vials
of cocaine in crack form. See, e.g., State v. Johnson,
603 A.2d 440, 442 (Conn. App. Ct.) ("crack cocaine is packaged in small
vials . . . the street term for such a vial is a `bottle'"),
certif. denied,
608 A.2d 690 (Conn. 1992); People v. Gomez,
586 N.Y.S.2d 588, 590 (N.Y. App. Div.) (Murphy, P.J., dissenting)
("bottles . . . is street slang for crack"), appeal denied,
605 N.E.2d 880 (N.Y. 1992). It is clear that in light of the
evidence that "bottles" is a street term for "vials of cocaine,"
defendant's explicit admission of drug possession gave the
detective probable cause to search defendant's person.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE HANDLER's opinion.
NO. A-58 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CHRISTOPHER ARTHUR,
Defendant-Respondent.
DECIDED March 18, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY