(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 5, 1998 -- Decided July 16, 1998
HANDLER, J., writing for a unanimous Court.
This is a search and seizure case involving a warrantless search after an automobile stop predicated on
a tip from a confidential informant.
At approximately 6:15 p.m. on July 26, 1993, Sergeant Michael O'Connor of the Wayne Police
Department set up a surveillance along Route 23 North. He was looking for a red Toyota with a license plate
number of BC-584V. According to a "reliable informant," the Toyota was returning from New York City after
the party driving it had purchased marijuana. The informant told the police that the driver had "just left" shortly
before six o'clock. O'Connor never indicated why he believed the informant to be "reliable."
At approximately 8:00 p.m., O'Connor saw a vehicle matching the informant's description. Driving an
unmarked van, O'Connor pulled behind the Toyota and was two or three car lengths behind when the car "shot
off without signalling from the center lane to the right lane and got off at the Exxon station." O'Connor also
pulled off the road behind the Toyota, which was being driven by defendant, Joseph Zutic.
On request, Zutic showed O'Connor his credentials and O'Connor started asking questions based on
the tip he had received. Zutic appeared very nervous. Zutic told O'Connor that he was returning from
Mountain View and that he had filled his gas tank that morning. Because the car's gas gauge was too low to
have travelled that short distance, O'Connor concluded that Zutic's incorrect answers substantiated the tip he
had received. O'Connor read Zutic his Miranda rights and asked him if he had drugs in the car. Zutic denied
having drugs but still became "very nervous." O'Connor ordered Zutic out of the car and found a cigarette box
with marijuana roaches in it.
While continuing his search of the car, O'Connor noticed Zutic making a motion toward the front
portion of his sweat pants. Based on his experience, O'Connor knew that people often carried drugs in their
pants. With the help of two uniformed officers who had arrived as backup, O'Connor recovered a bag from
Zutic's pants that later was confirmed as containing marijuana.
O'Connor then arrested Zutic, who struggled with the officers. Zutic was transported to police
headquarters where he received his Miranda warnings again. Zutic admitted that he had purchased the
marijuana in New York City and that he had overreacted when being arrested.
Zutic was charged in Wayne Municipal Court with drug offenses, resisting arrest, and a motor vehicle
offense. He moved to suppress evidence. The motion was denied and the matter went to trial. At trial, Zutic
gave a different version of events. He testified that O'Connor did not first identify himself as a police officer.
O'Connor allegedly pushed Zutic against the car and arrested him. When asked why by Zutic, O'Connor
allegedly said that he would know when O'Connor found what he was looking for. Zutic testified that although
he did not give consent, O'Connor searched the car anyhow. The Municipal Court found Zutic guilty of the drug
possession, resisting arrest, and lane change violation.
Zutic appealed to the Law Division. The denial of the motion to suppress was upheld on the ground that the informant's tip, combined with the sighting of the specific vehicle, established probable cause to stop and search the car. Zutic then appealed to the Appellate Division, which reversed the denial of the motion to
suppress. That court held that the informant's tip was insufficient to establish probable cause and that the
marijuana in the cigarette box did not come within the "plain view" exception.
The Supreme Court granted the State's petition for certification.
HELD: Under the totality of the circumstances presented, the police, acting on a confidential informant's tip,
did not have probable cause to justify the personal search of the defendant.
1. It is clear that the search of Zutic's car was based on an informant's tip. In evaluating an informant's tip,
the Court has to assess the "totality of the circumstances." In this matter, there was no evidence regarding the
basis for the informant's reliability or veracity. Although the informant's knowledge of Zutic's travel plans
suggested some degree of familiarity with Zutic's plans, that was not the intimate, hard-to-know detail that is
required. (pp. 7-11)
2. Under the totality of the circumstances test, the several circumstances, though insufficient if considered in
isolation, may in combination reinforce or augment one another and become sufficient to demonstrate probable
cause. Here, the circumstances both singly and in combination were insufficient to establish probable cause.
(pp. 11-12)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and
COLEMAN join in JUSTICE HANDLER's opinion.
SUPREME COURT OF NEW JERSEY
A-
38 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOSEPH R. ZUTIC,
Defendant-Respondent.
Argued January 5, 1998 -- Decided July 16, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
294 N.J. Super. 367 (1996).
Gary Schlyen, Chief Assistant Prosecutor,
argued the cause for appellant (Ronald S.
Fava, Passaic County Prosecutor, attorney).
Matthew T. Priore argued the cause for
respondent (Baldi & Marotta, attorneys; Mr.
Priore and Anthony F. LaVista, of counsel and
on the brief).
Lisa Sarnoff Gochman, Deputy Attorney
General, argued the cause for amicus curiae,
Attorney General of New Jersey (Peter
Verniero, Attorney General, attorney).
The opinion of the Court was delivered by
HANDLER, J.
In this search and seizure case, defendant was convicted of drug offenses based on evidence that had been seized following a warrantless search of his person after his automobile was stopped
and searched by the police. As in State v. Smith, __ N.J. __
(1998), also decided today, the police action was based on an
informant's tip. The issue presented by this appeal is whether
the police, acting on a confidential informant's tip that was
partially corroborated, had probable cause to justify the
personal search of defendant.
At approximately 6:15 p.m. on July 26, 1993, Sergeant Michael O'Connor of the Narcotics Bureau of the Wayne Police Department set up a surveillance along Route 23 North "based on information we received from a confidential reliable informer that a vehicle bearing registration BC-584V, it was a '93 red Toyota, would be traveling up 23 North from New York City after the party had purchased marijuana." With regard to the timing of the trip, O'Connor testified, "[h]e said they were -- they had just left, and that was the time we received the information. So, it was short -- shortly before 6 o'clock." O'Connor never indicated why he believed the informant was reliable.
At approximately 8 p.m., O'Connor saw a car matching the informant's description traveling in the center lane on Route 23 North. He said that in his experience, the round trip to New York to buy drugs took anywhere from forty minutes to an hour and a half or two hours. Upon seeing the vehicle, O'Connor pulled behind it in the unmarked van he was driving. O'Connor was traveling two or three car lengths behind the Toyota when the
driver "shot off without signaling from the center lane to the
right lane and got off at the Exxon station." There was a car in
the right lane approximately one to two car lengths behind
O'Connor's van. Traveling 40-50 m.p.h., O'Connor followed the
Toyota into the right lane. He said that he did not know what
happened to the car behind him in the right lane, but "it was
very close."
The driver, later identified as defendant, Joseph Zutic,
pulled up front-first to the side of the building at the Exxon
station, and O'Connor pulled up behind him. O'Connor identified
the reason for the stop as defendant's unsafe lane change.
According to O'Connor, defendant had just returned to the car
when he confronted him. Upon request, defendant showed O'Connor
his credentials, and O'Connor started asking him questions based
upon the tip he had received. Defendant appeared "very nervous
and jittery." Defendant told O'Connor that he was coming from
Mountain View and that he had filled up his tank that morning,
but O'Connor believed that the gas gauge was too low for
defendant to have traveled such a short distance. O'Connor felt
that defendant's incorrect answers substantiated the tip he had
received. O'Connor read defendant his Miranda rights and asked
him if he had any drugs in the car. Defendant denied having
drugs in the car, but "he still became very nervous." O'Connor
testified that, at that point, "I ordered him out of the car and
he stood by the front portion of -- on the driver's side. While
I began looking through the car I found a Marlboro Light box
containing marijuana roaches in it."
While searching the car, O'Connor observed defendant motion
toward the front portion of his sweat pants. Based on his
experience, O'Connor knew that people often carry drugs in their
pants. Defendant denied that he was carrying drugs. According
to O'Connor, "I could still see there was some kind of bulge in
the front portion of his pants. And as I attempted to check it
he knocked my hand -- my hand away with his left hand." With the
help of two uniformed officers that O'Connor had called as
backup, O'Connor recovered from defendant's pants a bag
containing what looked like marijuana. Lab tests later
positively identified the substance as marijuana.
At that point, O'Connor told defendant he was under arrest.
Defendant struggled with the officers as they tried to handcuff
him, but the officers were able to subdue him and transport him
to police headquarters. After O'Connor read him his Miranda
rights back at headquarters, defendant admitted that he had
bought the marijuana in New York City and said that he had over-reacted when being arrested.
On July 26, 1993, defendant was charged in Wayne Municipal
Court with possession of a controlled dangerous substance (CDS),
marijuana, contrary to N.J.S.A. 2C:35-10a(4); possession of drug
paraphernalia, contrary to N.J.S.A. 2C:36-2; resisting arrest,
contrary to N.J.S.A. 2C:29-2a; possession of a CDS in a motor
vehicle, contrary to N.J.S.A. 39:4-49.1; and making an unsafe
lane change, contrary to N.J.S.A. 39:4-88b.
On November 17, 1994, the Municipal Court held a hearing on
defendant's motion to suppress the evidence. O'Connor testified
in accordance with the facts as recounted, and the court denied
defendant's motion. The court found that O'Connor was justified
in stopping defendant based on the traffic violation. The court
further found that the subsequent warrantless search was
justified, in part, because "some of the contraband was found in
plain view on the front seat."
A trial immediately followed the denial of defendant's
motion. O'Connor's motion testimony was incorporated into the
trial. Defendant provided a different account of the events.
Defendant testified that O'Connor, who was in plain clothes, did
not immediately identify himself as a police officer. He said
that O'Connor pushed him against the car and told him he was
under arrest. When defendant asked what for, O'Connor said, "I
will let you know when I find what I am looking for." Defendant
testified that he told O'Connor he could not search the car, but
O'Connor searched it anyway. Then, O'Connor searched his pants
and pulled out the marijuana. Defendant denied having gone to
New York to purchase the marijuana, and he denied having
marijuana in the car.
The Municipal Court found defendant guilty of possession of
a CDS, resisting arrest, possession of a CDS in a motor vehicle,
and making an unsafe lane change. The court acquitted defendant
of possession of drug paraphernalia. At sentencing, the court
merged the possession counts. The court imposed total fines and
costs of $1002 and suspended defendant's driver's license for one
year.
Defendant appealed to the Law Division pursuant to Rule
3:23. Exercising de novo review, the court affirmed the
Municipal Court's denial of the motion to suppress. Without
expressly stating that the marijuana in the car was not in plain
view, the court observed that the testimony was that the
marijuana was inside a cigarette box in the front seat. Rather
than uphold the search based on the plain view doctrine, the
court reasoned that the informant's tip coupled with the sighting
of the vehicle described in the tip was sufficient to establish
probable cause to stop and search defendant's vehicle. Thus, the
court affirmed defendant's convictions and sentence.
Defendant appealed to the Appellate Division, and in a
published opinion the Appellate Division reversed the denial of
defendant's motion to suppress.
294 N.J. Super. 367 (1996). The
Appellate Division concluded that "the corroborated informant's
tip was insufficient to establish probable cause for the search
of defendant and his automobile under the Fourth Amendment." Id.
at 378. The court expressly observed that the marijuana in the
cigarette box was not in plain view and the search was not a
search for weapons. Id. at 371, n.4. Thus, to justify the
search, O'Connor needed probable cause, which he did not have.
Id. at 371.
We granted the State's Petition for Certification on March
19, 1997.
149 N.J. 35.
The police may undertake a warrantless search of an automobile if they have "probable cause to believe that the vehicle contains criminally-related objects." State v. Demeter, 124 N.J. 374, 386 (1991) (holding that observation of film canister did not create probable cause to justify search of automobile); see also State v. Esteves, 93 N.J. 498, 507 (1983) (holding that information about possible robbery, along with observation of what appeared to be pistol in car and occupants' failure to produce satisfactory identification, created probable cause to search vehicle); State v. Martin, 87 N.J. 561, 567-68 (1981) (holding that police had probable cause to search station wagon that matched description of vehicle used in armed robbery where vehicle was identified by several witnesses, vehicle contained glove in plain view that matched one found at crime scene and similar to glove worn by one of robbers, and occupants of vehicle fled when stopped by police).
In this case, it is clear that the search of the automobile is predicated on an informant's tip. The officer testified that the stop of the vehicle was based on an observed traffic violation and that the ensuing actions of defendant, particularly his incorrect answers, confirmed the information contained in the
tip. When he searched the car, he was pursuing investigation of
the tip.
In evaluating an informant's tip, the probable cause
determination is governed by the totality of the circumstances
test from Illinois v. Gates,
462 U.S. 213,
103 S. Ct. 2317,
76 L.
Ed.2d 527 (1983), and State v. Novembrino,
105 N.J. 95 (1987).
See also State v. Foreshaw,
245 N.J. Super. 166, 176-77 (App.
Div. 1991) (applying the totality of the circumstances test to
determine whether information from an informant was sufficient to
establish probable cause to stop and search a vehicle pursuant to
the automobile exception to the warrant requirement); State v.
Probasco,
220 N.J. Super. 355, 358 (App. Div. 1987) (same). We
apply that test here in the same manner as we did in Smith,
supra, __ N.J. __.
We begin with a brief recapitulation of the analysis of the
totality of the circumstances. Hearsay may constitute probative
evidence of probable cause "so long as a substantial basis for
crediting the hearsay is presented." Novembrino, supra, 105 N.J.
at 111; Smith, supra, ___ N.J. at ___ (slip op. at 7-8). An
informant's "veracity" and "basis of knowledge" are two highly
relevant factors under the totality of the circumstances. Smith,
supra, __ N.J. at __ (slip op. at 8). A deficiency in one of
those factors "may be compensated for, in determining the overall
reliability of a tip, by a strong showing as to the other, or by
some other indicia of reliability." Gates, supra, 462 U.S. at
233, 103 S. Ct. at 2329, 76 L. Ed.
2d at 545; Smith, supra, ___
N.J. at ___ (slip op. at 9). An informant's veracity may be
established in a variety of ways. For example, the informant's
past reliability will contribute to the informant's veracity.
Smith, supra, __ N.J. at ___ (slip op. at 10); Novembrino, supra,
105 N.J. at 123. With regard to the informant's basis of
knowledge, if the informant does not identify the basis of
knowledge, a reliable basis of knowledge may nonetheless be
inferred from the level of detail and amount of hard-to-know
information disclosed in the tip. Smith, supra, ___ N.J. at ___
(slip op. at 11). Finally, independent corroboration of hard-to-know detail in the informant's tip may also greatly bolster the
tip's reliability. Id. at ___ (slip op. at 12).
Here, O'Connor simply asserted that the informant was
"reliable" without indicating what made him think so. In the
absence of information about the informant's veracity, the court
cannot make an independent evaluation of the informant's
veracity. The officer's conclusory assertion that the informant
was reliable was not sufficient to establish the informant's
veracity.
Further, like the informant in Smith, the informant in this
case did not indicate the basis of knowledge, so we must turn to
the contents of the tip and the level of detail contained in the
information to discern if there is a sufficient basis of
knowledge. Novembrino, supra, 105 N.J. at 113. If the tip
contains information that would be hard to know without a
reliable source of information, the court may infer a reliable
basis of knowledge. Smith, supra, ___ N.J. at ___ (slip op. at 11). The informant in this case allegedly knew that "a party" not otherwise identified was making a round trip to New York from Wayne and that the party was buying drugs. The informant's knowledge of the suspect's travel plans implicitly asserts a possible reliable basis of knowledge, but even after police corroboration of those travel plans, there is not enough to establish probable cause. Although the informant predicted defendant's future travel plans, he did not predict them with the same degree of detail as contained in United States v. Draper, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed.2d 327 (1959). In Draper, a known informant predicted a round trip between Denver and Chicago and provided identifying information consisting of a detailed description of the clothing the defendant would be wearing, the bag he would be carrying, and the brisk pace of his gait. Id. at 309, 79 S. Ct. at 331, 3 L. Ed. 2d at 329-30. Compared to Draper, the information contained in the tip in this case was not hard to know because defendant's driving pattern could be known by others. Although the informant's knowledge of defendant's travel plans suggests some degree of familiarity with defendant's activities, it is not the same kind of intimate, hard-to-know detail that existed in Draper. See Novembrino, supra, 105 N.J. at 116-17 (observing that a tip's reliability is not bolstered by corroboration of innocent details that do not suggest a reliable basis of knowledge); State v. Paturzzio, 292 N.J. Super. 542, 553 (App. Div. 1996) (same); cf. Foreshaw,
supra, 245 N.J. Super. at 177 (stating corroboration of tip "down
to the smallest detail," established probable cause even in
absence of informant veracity). In fact, police investigation
showed that the informant was wrong about a significant piece of
information. The informant had alleged that "they" were going to
New York to buy drugs. There was no other information serving to
identify the suspects. O'Connor saw only one person in the car.
The inaccuracy and vagueness of the informant's allegation
significantly undermines the reliability of the informant's basis
of knowledge. Inaccuracy in particular weighs heavily against
the existence of probable cause. In addition, police
corroboration here was of purely non-suspicious detail; without
the corroboration of suspicious detail there can be no inference
that defendant was engaged in criminal activity. See Novembrino,
supra, 105 N.J. at 116 (noting that police corroboration of
innocent details could not satisfy the veracity requirement).
Under the totality of the circumstances test, the several
circumstances, though insufficient if considered in isolation,
may in combination reinforce or augment one another and become
sufficient to demonstrate probable cause. Gates, supra, 462 U.S.
at 233, 103 S. Ct. at 2329, 76 L. Ed.
2d at 545. Here, the
circumstances both singly and in combination are insufficient to
establish probable cause. These are the absence of informant
veracity; the absence of a reliable basis of knowledge, either
directly disclosed in the tip itself or indirectly disclosed by
the presentation of extensive details or unusual predictive
events; the absence of corroboration that could serve to bolster
or reinforce the likely existence of criminal activity; and the
absence of any independent investigation of facts indicating
probable criminal activity. Consequently, the totality of the
circumstances surrounding the search of defendant failed to
establish probable cause.
The police corroboration under the surrounding circumstances
generated only reasonable articulable suspicion to justify an
investigative stop. See Alabama v. White,
496 U.S. 325, 332,
110 S. Ct. 2412, 2417,
110 L. Ed.2d 301 (1990) (finding reasonable
articulable suspicion where an informant predicted that a suspect
would take a particular travel path). If the police also had
reasonable articulable suspicion that defendant was armed and
dangerous, that, at most, could support a protective search. See
State v. Arthur,
149 N.J. 1, 12 (1997). The police certainly did
not have the probable cause required to subject defendant to a
personal search for contraband.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in JUSTICE HANDLER's opinion.
NO. A-38 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOSEPH R. ZUTIC,
Defendant-Respondent.
DECIDED July 16, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY