(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 January 22, 1998 -- Decided June 26, 1998
HANDLER, J., writing for a unanimous Court.
The issue presented by this appeal is whether the police had a reasonable suspicion of criminal
activity that justified an investigatory stop.
Fort Lee Police Officer Phillip Ross, in plain clothes and driving an unmarked car, was patrolling an
area near the George Washington Bridge. He observed Citarella riding a ten-speed bicycle off the south
walkway exit of the bridge and heading north. Ross recognized Citarella as an individual he had arrested
several times on drug offenses. Most recently, Ross had arrested Citarella for driving under the influence of
CDS while on the suspended list. Ross also knew Citarella lived approximately two miles south of the bridge
-- the opposite direction from which he was now headed.
Ross slowed and drove alongside defendant. When Ross and defendant made eye contact,
defendant increased his speed, crossed the road, and jumped off the bicycle. Citarella then opened, without
using a key, the rear cab of a truck located in the driveway of a commercial building, and started to load the
bicycle into the truck. Citarella appeared to be quite nervous. Ross had never before seen Citarella or any
members of his family driving a pick-up truck. Ross testified that it was at this point that he decided to stop
Citarella as a suspicious person.
According to Ross, it is common practice for drug purchasers to drive to Fort Lee, park their cars,
and travel to New York on foot or bicycle to buy drugs. Ross further claimed that bicycle thefts were not
uncommon in Fort Lee. Those factors contributed to the decision to stop Citarella and inquire about his
activities.
Wearing his police shield on a chain around his neck, Ross got out of the vehicle and identified
himself as a police officer. Citarella turned and stared at Citarella for a moment and then quickly mounted
the bicycle to pedal away. Ross gave chase and grabbed defendant, who fell to the ground. Ross instructed
Citarella to stay on the ground, and called for back-up.
When additional officers arrived, Ross assisted Citarella to his feet. At that point, Ross recognized
that Citarella was sweating profusely, despite the relatively mild temperature. Ross further noted that
Citarella's eyes were bloodshot and his pupils were slow to react to light. Based on this information, Ross
believed that Citarella was under the influence of CDS. He therefore arrested defendant and read him his
Miranda rights.
Ross conducted a search incident to arrest, and discovered a folded dollar bill inside Citarella's front
pants pocket containing a white rock-like substance which Ross believed to be crack cocaine. Subsequent
laboratory testing confirmed this belief. Ross also found a transparent vial containing a liquid substance and
a white powdery residue. Ross believed the vial was used as a "cooker" for cocaine. After Citarella was
transported to headquarters, he was strip-searched, revealing a tinfoil packet in his jeans containing crack
cocaine.
Citarella was indicted for third degree possession of CDS. He moved to suppress the evidence, alleging that Ross was not justified in stopping him. The trial court denied the motion. Citarella then pled
guilty to the indictment. He was sentenced to five years in prison to be served consecutive to a five-year
term simultaneously imposed for another possession conviction stemming from a separate arrest.
On appeal, the Appellate Division reversed the denial of the motion to suppress in a 2-1 decision.
The majority found that Ross lacked the level of suspicion needed to support an investigative stop and that
Ross's chase and apprehension was an illegal seizure. The State appealed as of right to the Supreme Court
based on the dissenting opinion.
HELD: Based on the information available to the officer at the time he stopped Citarella, an articulable and
reasonable suspicion existed that justified the investigatory stop.
1. Under the Fourth Amendment and the New Jersey Constitution's similar provision, a warrantless search
is per se unreasonable unless it falls within one of the few well-delineated exceptions to the warrant
requirement. One of those exceptions is the investigatory stop, which is justified if an officer can point to
specific and articulable facts which, taken together with rational inferences from those facts, reasonably
warrant the intrusion. There must be some objective manifestation that the suspect was or is involved in
criminal activity. 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. (pp. 6-8)
2. Officer Ross observed the following conduct by Citarella: riding over the George Washington Bridge by
bicycle; riding in a hurried fashion; putting his bicycle into the back of a pickup truck not owned by Citarella
or a member of his family; acting as if he wanted to leave the area quickly in the truck; and acting nervously.
Based on his experience as a police officer, Ross knew the following: bicycles were often used for the
transport of drugs from New York City into Fort Lee; there had been a rash of burglaries in the area;
Citarella had been arrested many times before for drug crimes; Citarella had never been seen riding a
bicycle previously; Citarella lived two miles from the area in the opposite direction than that in which he was
riding; and Citarella's driving privileges had been suspended. Although Citarella's actions might have some
speculative innocent explanation, they also are reasonably consistent with illegal activity. (pp. 8-10)
3. The lower courts emphasized the significance of flight as a basis for finding a reasonable articulable
suspicion. Not including flight, however, the circumstances known to Officer Ross were sufficient to create a
reasonable articulable suspicion of criminal activity. Although not essential in the determination that there
was a valid basis to subject Citarella to an investigatory stop, flight adds weight to the already existing
reasonable articulable suspicion that is the measure of constitutional reasonableness of an ensuing search and
seizure. (pp. 10-11)
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.
SUPREME COURT OF NEW JERSEY
A-
93 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOSEPH CITARELLA,
Defendant-Respondent.
Argued January 22, 1998 -- Decided June 26, 1998
On appeal from the Superior Court, Appellate
Division.
Barbara Petersen, Assistant Prosecutor,
argued the cause for appellant (William H.
Schmidt, Bergen County Prosecutor, attorney).
Sylvia M. Orenstein, Assistant Public
Defender, argued the cause for respondent
(Ivelisse Torres, Public Defender, attorney).
Michael J. Williams, Deputy Attorney General,
argued cause for amicus curiae, Attorney
General of New Jersey (Peter Verniero,
Attorney General, attorney; John E. Adams,
Jr., Deputy Attorney General, on the brief).
The opinion of the Court was delivered by
HANDLER, J.
The defendant in this case was arrested by an officer from the Fort Lee Police Department. The circumstances leading up to his arrest call for the application of search and seizure law to investigatory stops. The trial court determined that the
circumstances gave rise to a reasonable articulable suspicion
that justified the initial stop of defendant by the police
officer. The Appellate Division concluded that the police
officer did not have a reasonable articulable suspicion to
justify stopping defendant and thus reversed the trial court's
denial of defendant's motion to suppress. Because there was a
dissent based on the view that the police officer had sufficient
information to form a reasonable articulable suspicion that
defendant was engaged in criminal activity, and therefore could
be stopped, the case is before us on the appeal by the State as a
matter of right.
Ross knew that defendant lived approximately two miles south of
the bridge -- the opposite direction from which he was now
headed. He had never seen defendant with a bicycle before and
knew defendant generally drove an older model, four-door car.
Ross slowed and drove alongside defendant, who was pedaling
slowly up a slight incline. When he and defendant made eye
contact, defendant increased his speed, crossed Hudson Terrace,
and jumped off the bicycle. Defendant then opened, without using
a key, the rear cab of an unoccupied pick-up truck parked in the
driveway of 2147 Hudson Terrace, a commercial building housing
offices and a restaurant, and started to load the bicycle into
the truck. He appeared to Ross to be quite nervous. Ross had
never before seen defendant or any members of his family driving
a pick-up truck. Ross testified that it was at this point that
he decided he was going to stop defendant as a suspicious person.
According to Ross, it is common practice for drug purchasers
to drive to Fort Lee, park their cars, and travel to New York on
foot or bicycle to buy drugs. Ross further claimed that bicycle
thefts were not uncommon in Fort Lee. Those factors, known to
Ross from his seven years of experience with the Fort Lee Police
Department and his training in narcotics investigations,
contributed to Ross's decision to stop defendant and inquire
about his activities.
Wearing his police shield on a chain around his neck, Ross
got out of his vehicle and identified himself as a police
officer. Defendant turned and stared at Officer Ross for several
seconds and then quickly mounted the bicycle and pedaled away.
Ross chased defendant on foot for about twenty feet before he was
able to grab hold of defendant and the bicycle. Defendant fell
to the ground, landing in a supine position. Ross radioed for
backup and instructed defendant to stay on the ground and keep
his hands out of his pockets until the other officers arrived.
When Fort Lee Police Officers Favaro, Ottina, and Ginsberg,
and Sergeant Dalton responded moments later, Detective Ross
assisted defendant to his feet. At that point, Ross noted that
defendant was sweating profusely, despite the "relatively mild"
temperature. He further noted that defendant's eyes were watery
and bloodshot and his pupils were slow to react to light. Based
on those observations, Ross believed defendant was under the
influence of a CDS. He therefore arrested plaintiff and read him
his Miranda rights.
Ross conducted a search of defendant incident to the arrest,
finding a folded dollar bill inside his left front pants pocket
containing a white rock-like substance which he believed to be
crack cocaine. Subsequent laboratory testing confirmed his
belief. Ross also found a transparent glass vial containing a
liquid substance and a white powdery residue. Based on his
training and experience, Ross believed the vial was for use as a
"cooker" for the cocaine. After the police transported defendant
to headquarters, he was strip-searched, revealing a tinfoil
packet containing crack cocaine tucked inside the fly area of his
jeans.
Defendant was indicted for third degree possession of a CDS
in violation of N.J.S.A. 2C:35-10a(1). He moved to suppress the
evidence obtained from Ross's search, alleging that Ross was not
justified in stopping him. Based on evidence of the foregoing
version of events, the trial court denied defendant's motion to
suppress, concluding that Ross had lawfully stopped defendant.
The court found that Ross had a reasonable basis to conclude that
defendant was engaged in or about to be engaged in criminal
activity based on (i) defendant's known status as an individual
arrested many times by the Fort Lee Police Department for drug
offenses and motor vehicle violations; (ii) the fact that
defendant was heading north from the George Washington Bridge
when Ross knew he lived south of that area; (iii) defendant's
presence in a driveway not on his property; (iv) his seemingly
imminent operation of a truck while his driver's license was
suspended; and (v) defendant's hurried manner. The court further
found that, after stopping defendant and observing his sweating
and watery eyes, Ross reasonably concluded that defendant was
under the influence of a CDS; Ross therefore had probable cause
to arrest. The court concluded that the search of defendant was
thus a legitimate search incident to arrest.
After the denial of defendant's motion to suppress,
defendant pled guilty to the single count in the indictment. He
was sentenced to five years in state prison, to be served
consecutive to a five-year term simultaneously imposed for
another third-degree possession conviction stemming from a
separate occasion, arrest, and indictment.
On appeal, the Appellate Division reversed the trial court's
denial of defendant's motion to suppress. The majority found
that Detective Ross lacked the level of suspicion needed to
support an investigative stop of defendant and that Ross's chase
and apprehension of defendant was an illegal seizure, and the
arrest and the search incident to the arrest were fruits of that
illegality and must be suppressed. Dissenting, Judge Humphreys
found that the totality of the circumstances necessitated a
finding that Ross had a particularized articulable suspicion of
illegal activity and thus had a right to pursue and stop
defendant.
The starting point for our analysis is the Fourth Amendment and the New Jersey Constitution's similar provision. The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV. Our State Constitution contains virtually identical language protecting people against government intrusion. N.J. const. Art.
1, ¶ 7. Under those provisions, a warrantless search is per se
unreasonable unless it falls within one of the few well-delineated exceptions to the warrant requirement. State v.
Demeter,
124 N.J. 374, 379-80 (1991). One of those exceptions,
and the one relevant to this case, is an investigatory stop based
on Terry v. Ohio,
392 U.S. 1,
88 S. Ct. 1868,
20 L. Ed.2d 889
(1968). Under Terry and its progeny, if an officer can "point to
specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant [the]
intrusion" on the individual, the officer is justified in making
an investigatory stop. Id. at 21, 88 S. Ct. at 1880, 20 L. Ed.
2d at 906; Adams v. Williams,
407 U.S. 143,
92 S. Ct. 1921,
32 L.
Ed.2d 612 (1972); United States v. Brignoni-Ponce,
422 U.S. 873,
95 S. Ct. 2574,
45 L. Ed.2d 607 (1975).
The path we take in this case is well-traveled and familiar.
Our most recent exposition of the topic came in State v. Arthur,
149 N.J. 1 (1997). In Arthur, Plainfield detectives had observed
the following: the defendant driving and parking on the street
in an area known for high levels of narcotics activity; a woman
entering defendant's car, talking with him briefly, and then
exiting the car carrying a brown paper bag she had not carried
into the car; the woman acting furtively upon exiting the car and
trying to conceal the newly acquired bag; and the defendant
driving away immediately after the woman exited the car. Id. at
10. Based on their experience, the detectives knew that paper
bags were often used to transport drugs, so they stopped the
woman and then the defendant in his car. Id. at 5. Upon a
challenge by the defendant, the Court concluded that the
detectives were justified in stopping the defendant because the
facts "objectively gave rise to a reasonable and articulable
suspicion that defendant was engaged in illegal narcotics
activity." Id. at 12.
In reaching that conclusion, we reviewed the jurisprudence
surrounding investigative stops. "[T]he 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 8 (citing State v. Thomas,
110 N.J. 673, 678 (1988)). "There must be 'some objective manifestation
that the suspect was or is involved in criminal activity.'"
Ibid. (quoting Thomas, supra, 110 N.J. at 678). In 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." Id. at 10-11. 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." Id. at 11.
Thus, the key to the inquiry is whether at the time of the
stop Ross had an articulable and reasonable suspicion that
Citarella was engaged in criminal activity. In order to make
that determination, we must first determine when the stop
occurred. Under New Jersey law, a stop occurs when the police
act in such a way that a reasonable person would believe that he
or she is not free to leave. State v. Tucker,
136 N.J. 158, 164-65 (rejecting the definition of "stop" contained in California v.
Hodari D.,
499 U.S. 621,
111 S. Ct. 1547,
113 L. Ed.2d 690
(1991), in favor of the definition contained in United States v.
Mendenhall,
446 U.S. 544,
100 S. Ct. 1870,
64 L. Ed.2d 497
(1980), and State v. Davis,
104 N.J. 490 (1986)). Under that
standard, at the latest, Citarella was stopped after he took
flight and when Ross began to chase him; at the earliest,
Citarella was stopped when Ross first approached and identified
himself as a police officer.
Based on the information available to Ross at the time he
first stopped Citarella, an articulable and reasonable suspicion
existed that justified Ross's stop of Citarella. When he first
confronted Citarella, Ross had observed defendant engaged in the
following actions: riding over the George Washington Bridge by
bicycle; riding in a hurried fashion; putting his bicycle into
the back of a pickup truck not owned by Citarella or a member of
his family; acting as if he wanted to leave the area quickly in
that truck; and acting nervously. Based on his experience as a
police officer, Ross also knew the following information:
bicycles were often used for the transport of drugs from New York
City into Fort Lee; there had been a rash of burglaries in the
area; Citarella had been arrested many times before for drug
crimes; Citarella had never been seen riding a bicycle
previously; Citarella lived two miles from the area in the
opposite direction than that in which he was riding; and
Citarella's driving privileges had been suspended. Even though
"defendant's actions might have some speculative innocent
explanation," Arthur, supra, 149 N.J. at 11, they also are
reasonably consistent with illegal activity; therefore, Officer
Ross had the required level of suspicion to conduct a Terry stop.
Both lower courts emphasized the significance of flight as a
basis for finding a reasonable articulable suspicion that an
individual is engaged in criminal activity. The circumstances
known to Officer Ross not including flight, however, were
sufficient to create the reasonable articulable suspicion
required to conduct an investigatory stop. Citarella's flight
from Officer Ross became an additional factor that heightened the
level of reasonable articulable suspicion already engendered by
Citarella's antecedent actions. See, e.g., State v. Seymour,
289 N.J. Super. 80, 89 (App. Div. 1996); State v. Ruiz,
286 N.J.
Super. 155, 162-63 (App. Div. 1995), certif. denied,
143 N.J. 519
(1996); In re J.B.,
284 N.J. Super. 513, 518-19 (App. Div. 1995);
State v. Ramos,
282 N.J. Super. 19, 22-23 (App. Div. 1995); State
v. Gates,
306 N.J. Super. 322, 334 (Law Div. 1997). Although not
essential in the determination that there was a valid basis to
subject defendant to an investigatory stop, flight adds weight to
the already existing reasonable articulable suspicion that is the
measure of constitutional reasonableness of an ensuing search and
seizure.
We thus conclude that, regardless of whether we consider
Officer Ross to have stopped Citarella when he first approached
defendant or when he gave chase, Officer Ross had sufficient
objective indicia coupled with his experience as a narcotics
officer to give rise to a reasonable articulable suspicion that
Citarella was engaged in criminal activity. The stop and the
ensuing search were therefore constitutional.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in this opinion.
NO. A-93 SEPTEMBER TERM 1997
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOSEPH CITARELLA,
Defendant-Respondent.
DECIDED June 26, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY