(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 September 10, 2002 -- Decided January 28, 2002
ZAZZALI, J., writing for a majority of the Court.
This appeal requires the Court to determine whether a law enforcement officer's investigatory stop at
Newark International Airport was justified by a reasonable suspicion that the suspect was transporting narcotics.
The Port Authority of New York and New Jersey is charged with the operation of Newark International
Airport. The Port Authority employs numerous law enforcement officers including Detective Charles Benoit, a
narcotics interdiction officer who works primarily at Newark Airport. At the time of the incident, Benoit was on
loan to the Port Authority from the United States Drug Enforcement Agency (DEA).
On May 31, 1998, Benoit received an electronic page from DEA Agent Scott Cahill in Los Angeles,
informing Benoit that an American Airlines ticket agent at Los Angeles International Airport had informed him that
two potential drug couriers were aboard American Airlines Flight 114 from Los Angeles to Newark. According to
the ticket agent, two female suspects had checked in using “fraudulent” or “questionable” identification. Agent
Cahill also informed Benoit that one of the suspects was traveling under the name “Roberta Chambers.” He further
stated that although the suspects' airline tickets had been purchased at the same time from the same agency, the
women were traveling separately and did not appear to know each other. Agent Cahill described the suspects as
“possibly Hispanic,” in their mid-twenties, and wearing business-type suits and carrying black tote bags with
wheels. Agent Cahill further told Benoit that the tickets were purchased through International Mirmar Travel.
Detective Benoit testified that he previously had arrested drug traffickers with tickets purchased from that agency.
He also testified that he had received information of this nature from the DEA numerous times.
Detective Benoit notified his partner, and met him at their office in Newark Airport. They confirmed the
flight's arrival time, obtained the services of a Spanish-speaking officer, and notified a K-9 Port Authority police
officer to stand by. The detectives then proceeded to the American Airlines terminal and waited for Flight 114 to
arrive.
As passengers disembarked, Detective Benoit noticed two women emerge separately from the jetway who
matched the general descriptions provided by Agent Cahill. They were pulling small, black tote bags on wheels.
Detective Benoit testified that drug couriers prefer carry-on luggage because “check-in” luggage might be subject to
handling by others and because K-9 units are regularly posted in the baggage handling area. Although matching
Agent Cahill's general descriptions, the women were African-American, not Hispanic.
As the women were leaving the terminal, Detective Benoit followed Felicia Stovall and his partner pursued
the other suspect. Detective Benoit approached Stovall, identified himself as a police officer, and “asked for
permission to speak with her.” Stovall asked where he would like to speak with her and Benoit replied where they
were was fine. Detective Benoit asked where Stovall's flight had originated from, and Stovall responded “Los
Angeles.” At Benoit's request, Stovall produced her airline ticket bearing the name “Roberta Chambers,” which
Benoit recognized as one of the names provided by Agent Cahill. Detective Benoit also noticed that Stovall had a
“bulk” ticket. According to Benoit, narcotics suppliers often purchase such tickets, which are available at
discounted rates because purchased in “bulk.” The tickets are then distributed to individual couriers.
Detective Benoit then asked Stovall for identification. Stovall presented him with a California state
identification card bearing the name “Roberta Chambers” with an address on Main Street in Los Angeles,
California. Detective Benoit testified that he found this identification “unusual,” because “most people carry more
substantial identification, specifically a driver's license.” Benoit also found the identification suspicious because the
card had expired.
Detective Benoit asked several other questions about Stovall's local destination and about the bag she was
carrying. He testified that during this conversation, Stovall was noticeably nervous and her hand shook. After
several minutes, Stovall asked Detective Benoit why he was asking her questions. He informed Stovall he was a
member of a narcotics interdiction team and that he suspected she was carrying drugs. Benoit requested permission
to search Stovall's suitcase, but Stovall refused and told Benoit she wanted to leave. In response, Detective Benoit
asked Stovall if she “could please stand by one minute,” but Stovall reiterated that she wanted to leave. Detective
Benoit said “this will just take a few moments,” and called for the K-9 unit. The officers placed Stovall's luggage
on the ground, and the dog “alerted,” indicating the presence of narcotics.
The officers took Stovall into custody and advised her of their intention to seek a warrant to search the bag.
Stovall then revealed her real name and consented to a search of the bag. The search yielded three bundles of
marijuana totaling approximately forty-seven pounds. Stovall was indicted for various drug offenses, including
possession of twenty-five pounds or more of controlled dangerous substance with intent to distribute. The trial
court granted Stovall's motion to suppress, and the Appellate Division affirmed in an unpublished, per curiam
opinion.
The Supreme Court granted the State's motion for leave to appeal.
HELD: Based on the totality of the circumstances, the detective had a reasonable suspicion that Stovall was
engaged in criminal activity to justify the investigatory stop.
1. A person has a constitutional right to be free from unreasonable searches and seizures. A seizure occurs when a
reasonable person would have believed that he or she was not free to leave. However, police may conduct an
investigatory stop if the officer has a reasonable and particularized suspicion to believe that an individual is engaged
in, or is about to engage in, criminal activity. Reasonable suspicion necessary to justify an investigatory stop is a
lower standard than the probable cause necessary to sustain an arrest. In this case, a seizure occurred. Stovall
expressed her desire to leave, but Detective Benoit responded “to stand by one minute” and “this will just take a few
moments.” An objectively reasonable person in Stovall's position would not have felt free to leave. (Pp. 8-12)
2. The trial court and the Appellate Division held that Detective Benoit's detention of Stovall was unconstitutional,
concluding that he impermissibly relied on a “drug courier profile.” A “drug courier profile” is merely a shorthand
way of referring to a group of characteristics that may indicate that a person is a drug courier. The mere fact that a
suspect displays profile characteristics does not justify a stop. A court must examine the totality of the
circumstances, including the facts that may match profile characteristics, to determine whether reasonable suspicion
exists. (Pp. 13-17)
3. The information provided by Agent Cahill to Detective Benoit, standing alone, does not support a finding of
reasonable suspicion. However, the tip must be included in the “totality of the circumstances” analysis. The Court
also gives due weight to Detective Benoit's twenty-seven years of experience in the field of law enforcement and,
most important, to his four years of experience in the field of narcotics interdiction. Among Detective Benoit's
observations were that Stovall's flight originated in Los Angeles, a known source for drug trafficking; Stovall and
the other suspect had “bulk” tickets that were purchased at the same time from the same agency, but were traveling
separately; both suspects traveled using the same, black, carry-on luggage, common to drug couriers; Stovall's
identification card had expired, and was not the type of substantial identification one would expect of someone
traveling across country for an extended stay; and Stovall was nervous and her hand shook during the questioning.
Although some of this evidence suggests benign behavior, the totality of all of the circumstances is more than
sufficient to justify a finding of reasonable suspicion. (Pp. 17-33)
Judgment of the Appellate Division is REVERSED.
JUSTICE COLEMAN has filed a separate opinion, concurring in part and dissenting in part. He
agrees that the detention of Stovall constituted a seizure, but disagrees that the record establishes the constitutionally
required reasonable and particularized suspicion that defendant possessed illegal drugs.
CHIEF JUSTICE PORITZ and JUSTICE LaVECCHIA join in JUSTICE ZAZZALI's opinion.
JUSTICE COLEMAN has filed a separate opinion, concurring in part and dissenting in part, in which
JUSTICE STEIN joins. JUSTICES LONG and VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-
15 September Term 2000
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FELICIA STOVALL,
Defendant-Respondent.
Argued September 10, 2001 -- Decided January 28, 2002
On appeal from the Superior Court,
Appellate Division.
Casey J. Woodruff, Assistant Prosecutor,
argued the cause for appellant (Thomas
V. Manahan, Union County Prosecutor,
attorney; Mr. Woodruff and Steven J.
Kaflowitz, Assistant Prosecutor, on the
briefs).
Joseph Charles argued the cause for
respondent (Ashley and Charles,
attorneys).
Robert E. Bonpietro, Deputy Attorney
General, argued the cause for amicus
curiae Attorney General of New Jersey
(John J. Farmer, Jr., Attorney General,
attorney).
Linda Mehling, Assistant Deputy Public
Defender, argued the cause for amicus
curiae Office of the Public Defender
(Peter A. Garcia, Acting Public
Defender, attorney).
The opinion of the Court was delivered by
ZAZZALI, J.
This appeal requires the Court to determine the legality of
a police investigatory stop. Specifically, we must decide
whether a law enforcement officer had reasonable suspicion to
conclude that a suspect at Newark International Airport was
transporting narcotics. The Appellate Division held that the
officer was not justified in that conclusion, and affirmed the
trial court's suppression of the drugs seized as a result of
defendant's detention and subsequent arrest. We disagree. Upon
review of the totality of the circumstances, we conclude that the
officer had reasonable suspicion that defendant was transporting
narcotics and therefore was justified in detaining defendant.
On May 31, 1998, Detective Benoit received an electronic page from DEA Agent Scott Cahill in Los Angeles. Agent Cahill informed Detective Benoit that an American Airlines ticket agent at Los Angeles International Airport had informed Cahill that two potential drug couriers were aboard American Airlines Flight 114 from Los Angeles to Newark. According to the ticket agent, two female suspects had checked in using “fraudulent” or “questionable” identification. Agent Cahill also informed Detective Benoit that one of the suspects was traveling under the name “Roberta Chambers.” He further stated that although the suspects' tickets had been purchased at the same time from the same agency, the two women were traveling separately and did not appear to know each other. Agent Cahill described the suspects as “possibly Hispanic.” Both women were in their mid-twenties and were wearing “business type suit[s].” Both carried black “crew-type bags,” or tote bags with wheels that are pulled by a handle. One woman, later identified as defendant, had short hair, wore red, and had a return ticket for June 10. The other woman was wearing a plaid skirt and had longer hair.
Agent Cahill told Detective Benoit that the tickets were purchased through International Mirmar Travel. Detective Benoit testified that he previously had arrested drug traffickers with tickets purchased from that agency.
Detective Benoit also testified that in the past he had received information “of this nature . . . [n]umerous times, dozens of times.” Thus, on receipt of the information, Detective Benoit notified his partner, Detective Jim Kane, and met him at their office in Newark Airport. The two officers confirmed the flight's arrival time, obtained the services of a Spanish- speaking officer, and notified K-9 Port Authority Police Officer Thomas Hering to “stand by.” Detectives Benoit and Kane then proceeded to the American Airlines terminal and waited for Flight 114 to arrive.
As passengers disembarked, Detective Benoit noticed two women matching the general descriptions provided by Agent Cahill. Although the women emerged from the jetway at different times, both were pulling small, black tote bags on wheels, and appeared to be “the same age or approximately the same age” as the women described by Agent Cahill. According to Detective Benoit, drug couriers prefer carry-on luggage because “check-in” luggage might be subject to handling by others and because K-9 units are regularly posted in the baggage handling area. Although matching Agent Cahill's general descriptions, the women were African- American, not Hispanic.See footnote 11
As the women proceeded to leave the terminal, Detective Benoit followed defendant and Detective Kane pursued the other suspect. Detective Benoit approached defendant, identified himself as a police officer, and “asked for permission to speak with her.” Defendant asked Benoit where he would like to speak with her and he replied that where they were was fine. Detective Benoit then asked defendant where her flight originated and defendant responded “Los Angeles.” At his request, defendant produced her airline ticket bearing the name “Roberta Chambers.” Detective Benoit recognized the name as one of the names provided by Agent Cahill. Benoit also noticed that defendant had a “bulk” ticket. According to Detective Benoit, narcotics suppliers often purchase such tickets, which are available at a discounted rate because they are purchased in “bulk.” Those tickets are then distributed to individual couriers in an effort to save money and avoid detection.
After examining defendant's ticket, Detective Benoit returned it to her and asked for identification. Defendant presented him with a California state identification card bearing the name “Roberta Chambers” and listed an address on Main Street in Los Angeles, California. Detective Benoit testified that he found it “unusual” that a state identification card was defendant's sole form of identification because “most people carry more substantial identification, specifically a driver's license.” Benoit also found the identification suspicious because the card had expired. He returned the card and asked defendant for her local destination. Defendant told Detective Benoit that she was traveling to New York to visit her boyfriend. Detective Benoit then asked if the luggage she was carrying belonged to her, whether she had packed the bags, and whether she knew what the bags contained. Defendant responded affirmatively to all three questions. Detective Benoit testified that during his conversation with defendant, defendant was “noticeabl[y]” nervous and her hand shook.
After several minutes, defendant asked Detective Benoit why he was asking her questions. Detective Benoit informed defendant that he was a member of a narcotics interdiction team and that he suspected that she was carrying drugs. He then requested permission to search her suitcase and informed defendant of her right to refuse consent. Defendant refused and told Detective Benoit that she wanted to leave. In response, Detective Benoit asked her if she “could [] please stand by one minute,” but defendant reiterated that she wanted to leave. Detective Benoit then said “this will just take a few moments.” Defendant did not react.
At that point, Detective Benoit was focused on defendant, while Officer Kane was speaking with the other suspect several feet away. Detective Benoit called for the K-9 unit, which arrived shortly thereafter. The officers placed defendant's luggage on the ground and the dog “alerted,” indicating the presence of narcotics. Consequently, the officers took defendant into custody and advised her of their intention to seek a warrant to search her bag. Defendant then admitted that her real name was Felicia Stovall and consented to a search of her bag. Before searching the bag, the officers contacted the Union County Prosecutor who informed them that defendant could still change her mind. The officers so informed defendant, stating “you don't have to allow us into the bag.” Defendant nonetheless gave permission to search her bag and signed a consent form. A search of defendant's luggage yielded three bundles of marijuana totaling approximately forty-seven pounds.
Defendant subsequently was indicted for possession of a
controlled dangerous substance, contrary to N.J.S.A. 2C:35-
10a(3), and possession of twenty-five pounds or more of a
controlled dangerous substance with intent to distribute,
contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(10)(a).
Defendant moved to suppress the seized evidence. Defendant
neither testified nor presented witnesses at the suppression
hearing, and did not file an affidavit in support of the motion.
The trial court nevertheless granted defendant's motion and the
State appealed. In an unpublished per curiam opinion, the
Appellate Division affirmed. We granted leave to appeal, State
v. Stovall,
165 N.J. 596 (2000), and now reverse.
S. Ct. 1870, 1877, 64 L. Ed.2d 497, 509 (1980); see also INS v. Delgado, 466 U.S. 210, 216-17, 104 S. Ct. 1758, 1763, 80 L. Ed.2d 247, 255 (1984) (stating that no detention occurs under Fourth Amendment unless circumstances of encounter demonstrate that reasonable person would not feel free to leave); State v. Tucker, 136 N.J. 158, 165 (1994) (noting that whether persons are seized “depends on an objective analysis of all the circumstances of their encounter” with police); State v. Davis, 104 N.J. 490, 498 (1986) (stating that court must consider totality of circumstances surrounding detention).
Even a brief detention can constitute a seizure. Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed.2d 889, 903 (1968). However, “[t]he police do not violate the fourth amendment by 'merely approaching an individual on the street or in another public place, by asking him [or her] if he [or she] is willing to answer some questions . . . .'” Davis, supra, 104 N.J. at 497 (quoting Florida v. Royer, 460 U.S. 491, 497, 103
S. Ct. 1319, 1324, 75 L. Ed.2d 229, 236 (1983)). On the other hand, “mere field interrogation” is constitutional “so long as the officer does not deny the individual the right to move.” State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed.2d 121 (1973). A police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity. Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. This Court has upheld the constitutionality of a temporary street detention based on less than probable cause. Tucker, supra, 136 N.J. at 167; accord State v. Maryland, 167 N.J. 471, 487 (2001); State v. Caldwell, 158 N.J. 452, 458 (1999); State v. Arthur, 149 N.J. 1, 8 (1997); Davis, supra, 104 N.J. at 504; Sheffield, supra, 62 N.J. at 446.
Reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest. State v. Citarella, 154 N.J. 272, 279 (1998); Arthur, supra, 149 N.J. at 8. However, reasonable suspicion is neither easily defined nor “readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 2329, 76 L. Ed.2d 527, 544 (1983). The United States Supreme Court has defined reasonable suspicion as “'a particularized and objective basis for suspecting the person stopped of criminal activity.'” Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed.2d 911, 918 (1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66 L. Ed.2d 621, 629 (1981)). In justifying an investigatory detention based on reasonable suspicion, a police officer must “be able to articulate something more than an 'inchoate and unparticularized suspicion or hunch.'” United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed.2d 1, 10 (1989) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). “The principal components of a determination of reasonable suspicion . . . [are] the events which occurred leading up to the stop . . ., and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion . . . .” Ornelas, supra, 517 U.S. at 696, 116 S. Ct. at 1661-62, 134 L. Ed. 2d at 919.
A
stated:
At first this was an encounter between [defendant] and Detective Benoit. However, once [defendant] said that she wanted to leave and her bag could not be searched it became a stop. She would not have felt free to leave because he said she had to wait. It's not a question of how long that period was, just that it occurred, and her bag was seized against her will.
The Appellate Division agreed with that conclusion.
Detective Benoit followed defendant after she disembarked
from the plane and approached her. We note that his initial stop
and questioning of defendant was permissible. State v. Green, __
N.J. Super. __, __ (App. Div. 2001). However, he then examined
defendant's plane ticket and identification, informed her that he
was a narcotics interdiction officer and that he suspected her of
drug trafficking, and requested defendant's consent to search her
luggage. Defendant refused and told him that she wanted to
leave. Detective Benoit then “asked her could she please stand
by one minute.” Defendant repeated that she wanted to leave, and
he told her “this will just take a few moments.”
In light of these circumstances, an objectively reasonable
person would not have felt free to leave. See W.R. LaFave, 4
Search and Seizure § 9.3(a), at 102-03 (3d ed. 1996) (“[A]n
encounter becomes a seizure if the officer engages in conduct
which a reasonable [person] would view as threatening or
offensive even if performed by another private citizen. This
would include such tactics as pursuing a person who has attempted
to terminate the contact by departing, [or by] continuing to
interrogate a person who has clearly expressed a desire not to
cooperate . . . .”) (footnotes omitted). Although Detective
Benoit framed his first statement as a request rather than a
command, the fact that defendant expressed her desire to leave
and he did not allow her to do so demonstrates that defendant was
not free to leave. Moreover, Detective Benoit's statement that
“this will just take a few moments,” implied that he would not
have permitted defendant to leave. Accordingly, we find that
Detective Benoit's detention of defendant, however brief,
constituted a seizure.
A “drug courier profile” is a “compilation[] of objective factors which may be innocent alone, but in conjunction with each other or other facts, lead officers to believe that the suspect is engaging in drug trafficking.” Kimberly J. Winbush, Annotation, Propriety of Stop and Search by Law Enforcement Officers Based Solely on Drug Courier Profile, 37 A.L.R. 5th 1, 11 (1996); see also LaFave, supra, § 9.4(e), at 166 (describing federal DEA “drug courier profiles” and their use in detaining and arresting suspected drug traffickers at airports). Many courts have addressed the utility of drug courier profiles in the context of the reasonable suspicion analysis. In general,
most courts consider those factors actually exhibited by a suspect to determine if they collectively demonstrate reasonable suspicion, without accepting any set or combination of factors as demonstrating reasonable suspicion per se. LaFave, supra,
§ 9.4(e), at 174. Although it has not addressed the specific question whether drug courier profiles alone can provide a basis for reasonable suspicion, the United States Supreme Court has approved the use of profile characteristics in the totality of circumstances analysis of reasonable suspicion. See Sokolow, supra, 490 U.S. at 10, 109 S. Ct. at 1587, 104 L. Ed. 2d at 12 (holding that because officer's reasonable articulable suspicion may be comprised of factors also included in drug courier profile that “does not somehow detract from [those factors'] evidentiary significance as seen by a trained agent”).
State courts that have addressed this issue have held similarly. See, e.g., State v. Martinson, 581 N.W.2d 846, 851 (Minn. 1998) (holding that police may rely on characteristics that can be labeled drug courier profile factors in determining whether reasonable suspicion exists); Commonwealth v. Bennett, 604 A.2d 276, 284 (Pa. Super. Ct. 1992) (holding that “[a] match between the so-called profile and characteristics exhibited by a defendant does not, in and of itself, create a reasonable suspicion sufficient to justify an investigatory stop” (quoting United States v. Hanson, 801 F.2d 757, 762 (5th Cir. 1986))); cf. State v. Casey, 296 S.E.2d 473, 480 (N.C. Ct. App. 1982) (approving use of drug courier profile as basis for investigatory stops). Similarly, New Jersey courts have recognized that characteristics included in drug courier profiles are legitimate factors to be considered in the reasonable suspicion analysis. See Patterson, supra, 270 N.J. Super. at 557 (“[P]rovided that suspicions which are directed at specific individuals arise, the police may develop and rely upon a so-called 'profile.'”).
A “drug courier profile” is merely a shorthand way of referring to a group of characteristics that may indicate that a person is a drug courier. However, the mere fact that a suspect displays profile characteristics does not justify a stop. See State ex. rel. J.G., 320 N.J. Super. 21, 33 (App. Div. 1999) (finding street detention unjustified where officer's hunch was based on profile factors and not specific overt conduct by defendants); State v. Kuhn, 213 N.J. Super. 275, 281 n.1 (App. Div. 1986) (noting that vehicle stop and search of defendant based solely on fact that defendant matched “drug courier
profile” would be unconstitutional). A court must examine the totality of the circumstances, including the facts that may match profile characteristics, to determine whether reasonable suspicion exists. A “profile” characteristic is a relevant, objective characteristic when exhibited by a particular defendant. There is no reason why the police should not be able to consider that characteristic in formulating reasonable suspicion. There is also no reason why “profile” characteristics that are exhibited by a defendant cannot provide the basis for an investigative detention in the appropriate case.
In this case, the Appellate Division “conclude[d] that the [motion] judge could have reasonably determined that Officer Benoit and his colleagues relied on profiling data almost exclusively . . . and not on reasonable individualized suspicion. This technique is not permissible.” However, Detective Benoit never testified that he relied on a drug courier profile in formulating his suspicion of defendant. Instead, Benoit's testimony reveals that he relied on individual, objective characteristics actually exhibited by defendant.
The question is not one of drug courier profiling. The task before us is to determine whether the individual, objective characteristics cited by Detective Benoit, in the aggregate, when considered in light of Detective Benoit's independent observations and law enforcement experience, constitute reasonable suspicion.
Detective Benoit testified that Agent Cahill informed him that two suspected drug traffickers were aboard American Airlines Flight 114 from Los Angeles to Newark. An airline ticket agent had alerted Agent Cahill. We acknowledge that that information standing alone does not support a finding of reasonable suspicion. However, we include the tip in the “totality of the circumstances” analysis. In determining the reliability of a tip, a court must consider an informant's “veracity,” “reliability,” and “basis of knowledge.” Alabama v. White, 496 U.S. 325, 328-29, 110 S. Ct. 2412, 2415, 110 L. Ed.2d 301, 308 (1990); Caldwell, supra, 158 N.J. at 460; State v. Smith, 155 N.J. 83, 93, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142
L. Ed.2d 480 (1998). When an informant is an ordinary citizen, New Jersey courts assume that the informant has sufficient veracity and require no further demonstration of reliability. Davis, supra, 104 N.J. at 506. Under the “basis of knowledge” prong, a court must consider whether “the information was obtained in a reliable way.” Smith, supra, 155 N.J. at 94. In making this determination, courts look to the tip itself, as “the nature and details revealed in the tip may imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source.” Ibid. “Basis of knowledge” can also be demonstrated where a tip “predict[s] hard-to-know future events.” Id. at 95. Such information implies that the informant is privy to the alleged criminal conduct. Ibid.
Here, the ticket agent was an “ordinary citizen” and thus veracity is assumed. The State, however, failed to establish the ticket agent's “basis of knowledge.” The information provided by the ticket agent does not demonstrate that she had firsthand knowledge that defendant was carrying drugs. Yet, in the totality of circumstances analysis the ticket agent's firsthand observations are of some value. Further, although it does not appear that Agent Cahill possessed any independent information that the suspects were transporting narcotics, he would not have notified Detective Benoit unless he believed, based on the ticket agent's observations and his own experience and expertise in law enforcement, that the tip should be pursued.
The information relayed to Detective Benoit was not a “tip” in the traditional sense of the word. Nonetheless, both a layperson and a DEA agent had a suspicion, and it was not unreasonable for Detective Benoit to factor the suspicions that were communicated to him into his own formulation of reasonable suspicion. The information imparted to Detective Benoit by the ticket agent and Agent Cahill was a building block leading to Benoit's conclusion that criminal activity was afoot. A police officer has the duty to investigate suspicious behavior. See Davis, supra, 104 N.J. at 503. If Benoit had ignored this information and failed to investigate suspicious behavior, he would have been derelict in his duty. See State v. Gray, 59 N.J. 563, 568 (1971) (stating that police forswear their duties if they do not investigate suspicious behavior); State v. Dilley, 49 N.J. 460, 468 (1967) (noting that investigation of suspicious circumstances “dictated by elemental police responsibilities”); State v. Letts, 254 N.J. Super. 390, 396 (Law Div. 1992) (stating that police have duty to public to investigate behavior that suggests criminal activity). Detective Benoit had the right and the responsibility to incorporate that information into his judgment, as do we. Further, to ignore the tip would be to elevate form over function. We need not visit any new jurisprudential precincts to reach this result. We refer to the well-centered rule that
[r]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
[White, supra, 496 U.S. at 330, 110 S. Ct.
at 2416, 110 L. Ed. 2d at 309 (emphasis added).]
It is fundamental to a totality of the circumstances
analysis of whether reasonable suspicion exists that courts may
consider the experience and knowledge of law enforcement
officers. Maryland, supra, 167 N.J. at 487; Citarella, supra,
154 N.J. at 279; Arthur, supra, 149 N.J. at 9-10; Davis, supra,
104 N.J. at 504. Detective Benoit had been a Port Authority
police officer for some twenty-seven years. At the time of the
suppression hearing, he had been “on loan” to the DEA for at
least four years. During his DEA training, he learned common
narcotics source cities, methods of shipping and transporting
narcotics, identifying characteristics of narcotics, and airlines
frequently used by narcotics suppliers. His training also
included working with different shippers and various police
agencies throughout the country regarding narcotics shipments
into Newark Airport. Over the past four years, Benoit has made
over one hundred drug-related arrests. When asked whether he had
ever acquired the type of information that he had received from
Agent Cahill, he replied, “[n]umerous times, dozens of times.”
He also testified that he requests permission to search suspects'
suitcases in the airport “every day. Hundreds of times.”
Accordingly, we give due weight to Detective Benoit's twenty-
seven years of experience in the field of law enforcement and,
most important, to his four years of experience in the field of
narcotics interdiction.
Detective Benoit summoned up that knowledge and experience
in formulating his suspicions about defendant. For example,
Benoit noted that defendant was traveling on a flight that
departed from Los Angeles and arrived in Newark. In Sokolow, a
DEA agent testified that, in his experience, the defendant's
original destination, Miami, was a frequent destination for
narcotics traffickers. Supra, 490 U.S. at 3, 109 S. Ct. at 1583,
104 L. Ed.
2d at 8; see also United States v. McCarthur,
6 F.3d 1270, 1278 (7th Cir. 1993) (finding defendant's train from major
source city to be factor in reasonable suspicion analysis);
Martinson, supra, 581 N.W.
2d at 851 n.3 (same). In Sokolow, the
Supreme Court held that, although “a trip from Honolulu to Miami,
standing alone, is not a cause for any sort of suspicion,” when
considered in light of other circumstances, a suspect's itinerary
may be factored into the reasonable suspicion equation. Supra,
490 U.S. at 9, 109 S. Ct. at 1586, 104 L.Ed.
2d at 11. In the
present case, Detective Benoit testified that “[a] flight comes
from Los Angeles, that particular flight we've arrested many
people on. Drugs come up through Mexico, that stay in San Diego
and Los Angeles, and [are] flown into Newark Airport through that
route. That flight we had numerous arrests on.”
Importantly, Detective Benoit also observed that both
defendant and the other suspect had tickets that were purchased
at the same time from the same agency, but they chose to travel
separately and appeared not to know each other. In United States
v. Ushery,
968 F.2d 575, 579 (6th Cir.), cert. denied,
506 U.S. 946,
113 S. Ct. 392,
121 L. Ed.2d 301 (1992), the court
concluded that similar facts amply supported a finding of
reasonable suspicion. In reviewing the totality of the
circumstances, the court noted that the three suspects who were
traveling together attempted to maintain the appearance of
traveling separately. Ibid. Similarly, in United States v.
Forero-Rincon,
626 F.2d 218, 222-23 (2d Cir. 1980), the court
held that two travelers from a “source” city who had identical
shoulder bags, conversed and disembarked from the plane together,
but separated when one whispered to the other, and then were
rejoined, was a factor to be considered in the reasonable
suspicion analysis.
Additionally, Detective Benoit confirmed Agent Cahill's
description of defendant's ticket. The ticket was characterized
as a “bulk” ticket purchased from a specific travel agency in
California. According to Benoit, “bulk” tickets raise suspicion
because “just based on experience . . .[,] based on watching
people traffic narcotics, they're purchased like that a lot of
times.” He testified that narcotics suppliers prefer to buy a
large number of tickets at once to save money and to avoid
detection. The tickets are then distributed to individual
couriers. Also, defendant's ticket was purchased from an agency
known to Benoit as one frequently used by narcotics traffickers.
We recognize, as Benoit testified, that “law abiding
citizens” purchase such tickets as well. However, the record
reflects that the use of such tickets may on occasion be
indicative of participation in the drug trafficking business.
Detective Benoit examined defendant's ticket and, in combination
with all of the other factors, concluded that the circumstances
were suspicious. Although we do not give blind deference to that
conclusion, we accord it appropriate weight, particularly in
light of Detective Benoit's extensive experience.
Additionally, just as Agent Cahill had described, both
suspects were traveling with the same type of luggage _ a small,
black, “crew-type” bag with wheels and a handle. Both suspects
carried their luggage onto the plane. Detective Benoit observed
defendant disembark with such a bag. Benoit admitted that it is
not unusual for travelers to use carry-on luggage, “but based on
a totality of everything it raises your suspicions . . . it makes
me suspicious.” In his experience, drug couriers often carry the
same type of luggage that defendant carried, and often carry
their bags onto the plane to limit outside access to the bag.
Specifically, he testified that carry-on bags are “especially”
prevalent among drug traffickers because “they don't want it in
the belly of the aircraft, they don't want anybody on the ramp to
have access to it. They are afraid of dogs at the tarmac
checking bags.”
Detective Benoit also confirmed that defendant's
identification was an expired state identification card bearing
the name “Roberta Chambers.” Agent Cahill had informed Detective
Benoit that the ticket agent alerted him that defendant checked
in using “fraudulent identification.” Benoit's notes recounting
his conversation with Agent Cahill indicate that Cahill described
“two women traveling with false ID.” Benoit's police report
describes the identification as “questionable.” Detective Benoit
later confirmed that the card bearing the name “Roberta Chambers”
was indeed fraudulent when defendant identified herself as
Felicia Stovall. Because Benoit's corroboration of the fraud
occurred after the detention commenced, however, we do not
consider that fact in determining whether reasonable suspicion
existed prior to the detention.
The issue of the identification card is nonetheless relevant
to our inquiry for two reasons. First, both the ticket agent and
Agent Cahill found defendant's identification to be suspicious.
Whether they characterized it as “fraudulent,” as Benoit
testified, “false,” as Benoit wrote in his notes, or
“questionable,” as indicated in Benoit's police report, is of
little consequence. That the ticket agent and Agent Cahill did
not explain the bases for their suspicions is true. However, a
ticket agent who examines identification on a regular basis found
defendant's identification suspicious. DEA Agent Cahill conveyed
the agent's concern, which he shared, that the identification was
questionable _ in effect, suspicious. Thus, Benoit had some
suspicion based on that communication regarding defendant's
identification even before he detained her.
Quite apart from that consideration, we now turn to Benoit's
independent evaluation. In addition to Agent Cahill's
characterizations of the identification card, Benoit found two
facts unusual. Although most people carry “more substantial
identification, specifically a driver's license,” particularly
those people traveling across country for an extended stay,
defendant presented an identification card as her only form of
identification. More important, the card had expired and listed
an address on “Main Street” in Los Angeles. Accordingly,
Detective Benoit found defendant's identification card suspicious
based on the information he received from Agent Cahill and his
own examination of the card.
During his encounter with defendant, Detective Benoit
noticed that defendant appeared nervous and that her hand shook.
Concededly, some individuals become nervous when questioned by a
police officer. Nonetheless, the fact that such reactions may be
commonplace does not detract from the well-established rule that
a suspect's nervousness plays a role in determining whether
reasonable suspicion exists. See, e.g., Citarella, supra, 154
N.J. at 280 (holding that defendant's actions, including “acting
nervously,” amounted to reasonable suspicion); Green, supra, __
N.J. Super. at __ (listing excessive nervousness as factor in
determining whether reasonable suspicion existed to justify stop
in airport); State v. Hickman,
335 N.J. Super. 623, 637 (App.
Div. 2000) (finding defendant's unusual nervousness reasonable
basis for officer's suspicion); State v. Matthews,
330 N.J.
Super. 1, 5 (App. Div. 2000) (finding defendant's nervousness
among factors constituting reasonable suspicion); see also
Illinois v. Wardlow,
528 U.S. 119, 124,
120 S. Ct. 673, 676,
145 L. Ed.2d 570, 576 (2000) (“nervous, evasive behavior is a
pertinent factor in determining reasonable suspicion”); United
States v. Cotton,
261 F.3d 397, 409 (4th Cir. 2001) (finding
defendant's visible nervousness when approached by police and
questioned factor providing reasonable suspicion); United States
v. Smith,
201 F.3d 1317, 1323 (11th Cir. 2000) (finding
defendant's nervous appearance while waiting in bus terminal
factor providing reasonable suspicion); United States v. Maher,
145 F.3d 907, 909 (7th Cir. 1998) (finding defendant's overt
nervousness as he approached patrol car factor providing police
with reasonable suspicion); United States v. Porter,
107 F.3d 582, 584 (8th Cir. 1997) (finding defendant's nervousness when
questioned about his bags factor providing DEA agent with
reasonable suspicion). Here, Benoit testified that “all the
while [he] was talking to [defendant] and while [he] asked her
for identification her hand shook,” and she appeared “very
nervous.” In fact, Detective Benoit credibly testified that, as
a result, his “suspicions were heightened after [he] spoke to
[defendant].”
It may be, as the dissent points out, that no one of those
factors alone constitutes reasonable suspicion. It also may be
that some of those factors, such as the bulk ticket and the
carry-on luggage, can be interpreted as being consistent with
both innocence and guilt, and that some are simply neutral,
occurring every day at airports. Even if all of the factors were
susceptible of “purely innocent” explanations, a group of
innocent circumstances in the aggregate can support a finding of
reasonable suspicion. This Court has stated that
[i]n evaluating the facts giving rise to the
officer's suspicion of criminal activity,
courts are to give weight to 'the officer's
knowledge and experience' as well as
'rational inferences that could be drawn from
the facts objectively and reasonably viewed
in light of the officer's expertise.' The
fact that purely innocent connotations can be
ascribed to a person's actions does not mean
that an officer cannot base a finding of
reasonable suspicion on those actions as long
as 'a reasonable person would find the
actions are consistent with guilt.'
[Citarella, supra, 154 N.J. at 279-80 (quoting
Arthur, supra, 149 N.J. at 10-11) (citations
omitted) (emphasis added).]
Similarly, in Arthur, we noted that “'[i]t must be rare indeed
that an officer observed behavior consistent only with guilt and
incapable of innocent interpretation.'” Arthur, supra, 149 N.J.
at 11 (quoting United States v. Viegas,
639 F.3d 42, 45 (1st
Cir.), cert. denied,
451 U.S. 970,
101 S. Ct. 2046,
68 L. Ed.2d 348 (1981)).
Citarella and Arthur make clear that the police may rely on
characteristics consistent with both innocence and guilt in
formulating reasonable suspicion. Importantly, neither decision
requires that the State present corroborating facts consistent
only with guilt. As noted, such behavior is “rare indeed.”
Ibid. Both decisions focused on whether the totality of the
circumstances, including factors consistent with both innocence
and guilt, demonstrated reasonable suspicion to justify the stop.
Citarella, supra, 154 N.J. at 281; Arthur, supra, 149 N.J. at 11-
12. Under our precedents, in determining whether reasonable
suspicion is present in this case, we consider factors consistent
with both innocence and guilt. The dissent concludes that
Detective Benoit did not have reasonable suspicion to stop
defendant because the factors relied on by Benoit, when viewed
independently, are more consistent with innocence than guilt.
Post at __ (slip op. at 18). That analysis, however, ignores the
mandate of the totality of the circumstances test, which requires
us to view in the aggregate the facts known to Detective Benoit
at the time of the stop.
In that regard, the case to be made for reasonable suspicion
here is even more compelling because, unlike cases in which all
of the factors are neutral yet amount to reasonable suspicion
when aggregated, there are corroborating facts present here that
are more consonant with guilt than with innocence. We thus hold
that although some of the evidence in this record suggests benign
behavior, the totality of all of the circumstances is more than
sufficient to justify a finding of reasonable suspicion. As
Benoit stated, even though no one factor would have “set off
alarms” in his head, when “coupled together [the] totality of it
certainly makes you suspicious.”
probable cause and requires a showing considerably less than preponderance of the evidence.'” United States v. Valentine, 232 F.3d 350, 353 (3d Cir. 2000), cert. denied, __ U.S. __, 121 S. Ct. 1748, 149 L. Ed.2d 670 (2001) (quoting Wardlow, supra, 528 U.S. at 123, 120 S. Ct. at 676-77, 145 L. Ed. 2d at 576). As the case law suggests, the test is qualitative, not quantitative. Common sense, rather than a “neat set of legal rules,” guides our analysis. Gates, supra, 462 U.S. at 232, 103 S. Ct. at 2329, 76 L. Ed. 2d at 544.
We thus calibrate the scales, mindful always of the protections of the federal and state constitutions. We conclude that Detective Benoit had reasonable suspicion to stop defendant based on the following circumstances: the information relayed from the ticket agent and Agent Cahill to Detective Benoit; Benoit's confirmation of that information; Agent Cahill's description of defendant's identification as “fraudulent”; Benoit's independent determination that the identification was questionable because defendant's only form of identification was an expired identification card listing an address on Main Street in Los Angeles; defendant's flight originating in Los Angeles and arriving in Newark _ a known drug trafficking route; defendant's ticket being purchased at the same time and from the same agency as the other suspect's ticket, but the two women traveling separately and appearing not to know one another; the “bulk” ticket; defendant's ticket being purchased from a travel agency frequently used by narcotics traffickers; defendant's small, carry-on “crew-type” bag; defendant's visible nervousness; and Detective Benoit's extensive experience and expertise in the narcotics interdiction field.
We take the facts as we find them; they cannot be neatly packaged. One can either patch together those factors into a quilt of reasonable suspicion or parse those same factors to unravel the evidence of guilt. The better view, based on this evidence and the template of common sense, is that Detective Benoit had more than a “hunch.” He had the responsibility not to turn a blind eye to what he heard and saw; he had the concomitant right to act as he did. Based on the totality of the circumstances, we are satisfied that Detective Benoit had reasonable suspicion to detain defendant.
Reversed.
CHIEF JUSTICE PORITZ and JUSTICE LaVECCHIA join in JUSTICE ZAZZALI's opinion. JUSTICE COLEMAN has filed a separate opinion concurring in part and dissenting in part, in which JUSTICE STEIN joins. JUSTICES LONG and VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A- 15 September Term 2000
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FELICIA STOVALL,
Defendant-Respondent.
COLEMAN, J., concurring in part and dissenting in part.
I agree with the majority that Detective Benoit's detention
of defendant constituted a seizure. Ante at (slip op. at
12). That seizure was part of an investigatory stop that
“permits law enforcement officers to detain an individual
temporarily for questioning.” State v. Maryland,
167 N.J. 471,
486 (2001). “[A]n investigatory stop directly implicates the
Fourth Amendment because it involves a seizure in the
constitutional sense.” Ibid. Although the Fourth Amendment
warrant and probable cause requirements are relaxed for an
investigatory stop, such a seizure is constitutional only if,
under the totality of circumstances, “there is a reasonable and
particularized suspicion to believe that an individual has just
engaged in, or is about to engage in, criminal activity.” Id. at
487; State v. Davis,
104 N.J. 490, 504 (1986). I disagree with
the Court's holding that the record in this case, inclusive of
the alleged drug courier profile information, establishes the
constitutionally required reasonable and particularized suspicion
that defendant possessed illegal drugs. Hence, I dissent.
The starting point for evaluating the reasonableness of police conduct is the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. Those provisions protect citizens against unreasonable police searches and seizures by requiring warrants issued on probable cause unless the search or seizure falls within one of the “few specifically established and well- delineated exceptions” to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed.2d 854, 858 (1973); State v. Maryland, supra, 167 N.J. at 482; State v. Citarella, 154 N.J. 272, 278 (1998); State v. Hill, 115 N.J. 169, 173-74 (1989). The exception to the warrant and probable cause requirements involved in this case is the investigatory stop, which permits law enforcement officers to detain an individual temporarily for questioning. Terry v. Ohio, 391 U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed.2d 889, 906 (1968); State v. Davis, supra, 104 N.J. at 504.
Under a Fourth Amendment analysis, the reasonableness of the police action in conducting an investigatory stop generally can be assessed by “'balancing the need to search (or seize) against the invasion which the search (or seizure) entails.'” Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 905 (quoting Camara v. Municipal Court, 387 U.S. 523, 534-35, 536-37, 87 S. Ct. 1727, 1735, 18 L. Ed.2d 930, 940 (1967)); State v. Arthur, 149 N.J. 1, 7-8 (1997). 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 [justify] a man of reasonable caution in the belief that the action taken was appropriate?” Terry, supra, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906 (internal quotations omitted). Thus, when determining whether Detective Benoit's and the other officers' actions were reasonable, consideration must be given “to the specific reasonable inferences which [they were] entitled to draw from the facts in light of [their] experience.” Id. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909; State v. Arthur, supra, 149 N.J. at 7-8. “Neither 'inarticulate hunches' nor an arresting officer's subjective good faith can justify an infringement of a citizen's constitutionally guaranteed rights.” State v. Arthur, supra, 149 N.J. at 7-8. “Rather,