(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 majority of the Court.
This is a search and seizure case. On February 23, 1993, a confidential informant told Robert Hilongos,
an experienced Detective in the Elizabeth Police Department, that a man was selling drugs in the lobby of the
Oakwood Plaza Apartments on Irvington Avenue. The informant described the man as a black man wearing
a three-quarter length jacket and a yellow cap. The informant further said that the man was taking orders in
the lobby and retrieving drugs from apartment #2L. Finally, the informant stated that the man was using a red
Datsun automobile with license plate number HIO 33D. The car was allegedly parked across the street from
the apartment building.
Detective Hilongos knew the informant and believed him to be reliable. In a prior case, the informant
had provided information that led to an arrest and conviction. Based on the information received, the Detective
and two others went to Oakwood Plaza in an unmarked car. Two uniformed officers were also called to the
scene. On his arrival, the Detective saw a black man wearing a coat and cap as described by the informant. The
man was standing on the sidewalk approximately fifty or sixty feet from the lobby. There was a red Datsun
parked across the street but the Detective did not recall whether he saw the car before or after the police
stopped the man in the coat.
The Detective stopped and searched the black man, who was later identified as defendant, Shawn Smith.
The Detective seized two keys from Smith, neither of which was imprinted with an apartment number. In his
testimony, the Detective stated that he was looking for drugs and that he knew the keys were not a weapon. He
also testified that because it was impractical, the police did not conduct any surveillance before acting on the tip.
After seizing the keys, the Detective went up to apartment #2L. He also called the apartment manager,
Kathy Ryan, to the scene. No one answered at the apartment. A neighbor informed the police that her sister,
Stacy Walker, lived in the apartment but was in the hospital. The police located Walker by telephone and, after
learning that the police believed they had obtained the key to the apartment from Smith, Walker eventually gave
them her consent to enter the apartment. Inside the apartment, the police found fifty-nine vials of what turned
out to be cocaine.
Smith was charged with drug possession and intent to sell within 1000 feet of a school. He moved to
suppress the keys and the cocaine. The trial court held that although the seizure of the keys was initially
unlawful, the discovery of the cocaine was lawfully based on Walker's consent. The trial court further found that
the lawful discovery of the cocaine would have inevitably led to the keys so he denied the motion to suppress
in all respects. Smith pled guilty and appealed. The Appellate Division affirmed, holding that the search of
Smith was justified by probable cause to arrest him and that the apartment search was valid. In the alternative,
the Appellate Division held that Smith had no expectation of privacy in Walker's apartment that would support
a claim that the search violated his constitutional rights.
The Supreme Court granted Smith's petition for certification.
HELD: Because the police did not have probable cause to search defendant on the street, the seizure of
evidence from his person was unlawful. That unlawful seizure, in turn, tainted the subsequent discovery of drugs
in an apartment. All of the evidence so seized must be suppressed.
1. Because the police officer was looking for drugs and not weapons, the "protective search" exception to the
probable cause requirement did not apply. (pp. 6-7)
2. Tips from confidential informants are evaluated, in part, on the veracity of the informant and the basis of the
informant's knowledge. In addition, corroboration is necessary to ratify the informant's veracity. Although there
was some evidence to support the informant's veracity, the record did not disclose information that supported
a finding that the informant had personal knowledge, either directly or from a reliable person, that Smith was
actually entering the apartment to get drugs and returning with drugs to make sales. (pp. 7-15)
3. Rather than corroborate the informant's information, the police only briefly observed Smith outside the
building. The neutral information obtained (for example, confirmation of Smith's coat and hat) did not suggest
Smith was engaged in criminal activity. In addition, the Detective's experience in drug cases cannot be
substituted for the amount of evidence needed to support a finding of probable cause. In this case, there was
no evidence that the Detective used his experience to infer that Smith was in fact selling drugs. (pp. 16-18)
4. Because Walker's consent to search her apartment was based in part on her knowledge that the police had
already seized keys to the apartment from Smith, the discovery of the drugs was a product of the unlawful seizure
of the keys. Therefore, the drugs must also be suppressed. (pp. 18-20)
The judgment of the Appellate Division is REVERSED.
PORITZ, C.J., GARIBALDI, J., and COLEMAN, J., dissenting, would affirm the judgment below
substantially for the reasons expressed in the opinion of the Appellate Division.
JUSTICES POLLOCK, O'HERN, and STEIN join in JUSTICE HANDLER's opinion. CHIEF
JUSTICE PORITZ and JUSTICES GARIBALDI and COLEMAN have filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
32 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAWN SMITH,
Defendant-Appellant.
Argued January 5, 1998 -- Decided July 16, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
291 N.J. Super. 245 (1996).
Mark H. Friedman, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney).
Frank Muroski, Assistant Prosecutor, argued
the cause for respondent (Thomas V. Manahan,
Union County Prosecutor, attorney).
Leslie Stolbof Sinemus argued the cause for
amicus curiae Association of Criminal Defense
Lawyers-New Jersey.
Gerard C. Sims, Jr., 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.
This is a search and seizure case. In this case, and in
State v. Zutic, ___ N.J. ___ (1998), also decided today, the
central issue is whether incriminating evidence that was used to
secure a defendant's conviction for drug offenses was obtained as
the result of an unreasonable warrantless search of the
defendant's person. The more specific issue is whether a
confidential informant's tip, together with some corroboration of
the information contained in the tip, established probable cause
to justify the search of defendant's person. An additional issue
relates to whether the ultimate seizure of the incriminating
drugs was tainted by the initial personal search of defendant
without probable cause.
Hilongos knew the informant and believed him to be reliable. The informant had done "one job" for Hilongos in the past, and
the informant's information resulted in an arrest and conviction.
A few minutes after receiving the tip, Hilongos and two other
police officers proceeded to Oakwood Plaza in an unmarked
vehicle. Two uniformed officers were also called to the scene.
Upon arrival, Hilongos saw a black man wearing a three-quarter
length black coat and a yellow cap and standing on the sidewalk
approximately fifty or sixty feet from the lobby entrance. There
was a red Datsun parked across the street from the apartments,
but Hilongos could not remember if he saw the car before or after
stopping defendant.
Hilongos stopped and searched the man who was later
identified as defendant, Shawn Smith. He seized a pair of keys
from defendant. Hilongos testified that he was searching for
drugs and that he knew the keys were not a weapon. None of the
keys were imprinted with an apartment number or any other
distinguishing marks. When asked what he was doing in the area,
defendant told Hilongos that he lived in Newark but was visiting
relatives in the area. Hilongos testified that he did not
attempt to conduct surveillance or otherwise verify the
informant's tip because it was impracticable.
After seizing the keys, Hilongos had the two uniformed
officers detain defendant while he went upstairs and knocked on
apartment #2L. He also called the apartment manager, Kathy Ryan,
to the scene. While waiting for Ryan, Hilongos knocked on the
door to #2L, but no one answered. A neighbor, Andrea Smith,
informed Hilongos that someone named Stacy Walker lived in the
apartment but Walker was in the hospital. According to
Hilongos's testimony, Andrea Smith told him that Walker was her
sister and defendant was her brother. Andrea Smith testified,
however, that defendant is not related to her.
Either Andrea Smith or another neighbor, Patricia Wright,
called Walker at the hospital. The phone was passed from Smith
to Ryan and then to Hilongos. Eventually, Walker gave Hilongos
permission to enter the apartment. Ryan testified that she "told
[Walker] that the cops wanted to get into her unit because
apparently they had somebody that had keys or something to her
unit." Hilongos testified that he could not remember if he told
Walker that she had a right to refuse permission to enter the
apartment. Walker testified that Ryan told her that police
needed access to Walker's apartment and they wanted permission to
enter the apartment. Ryan advised Walker that she had a right to
refuse access to her apartment, but warned Walker that her
refusal would cause the police to obtain a search warrant and “if
the police had to get a warrant to get in, [Walker] would be
responsible for damages because normally they break the door.”
Walker testified that the police told her that they needed to
enter her apartment to retrieve defendant's wallet.
Ryan and Andrea Smith described Walker, who was pregnant and
was hospitalized because of high blood pressure, as being
“upset,” “crying,” and “hysterical” during their telephone
conversations with her. Andrea Smith testified that "[Ryan] was
trying to calm her down and I heard her telling Stacy something
to the effect, no, you're not going to lose your apartment and
you have nothing to worry about and you don't have to let them go
into the house." Walker gave Hilongos permission to enter her
apartment after Ryan assured her that she would not be evicted.
After Walker consented to the entry, Hilongos entered
apartment #2L by using one of the keys he had seized from
defendant. The police found inside the refrigerator a plastic
bag containing fifty-nine vials of what looked like cocaine.
Hilongos then "notified the officers that were holding
[defendant] to place him under arrest."
On July 1, 1993, a Union County Grand Jury indicted
defendant, charging him with third degree possession of a
controlled dangerous substance (CDS) (count one), third degree
possession of a CDS with intent to distribute (count two), and
third degree possession of a CDS with intent to distribute within
1000 feet of a school (count three).
The trial court denied defendant's motion to suppress the
keys and the cocaine. The court held that whereas the seizure of
the keys was unlawful, the discovery of the cocaine was lawfully
based on Walker's consent. The court held that once the cocaine
was discovered, the keys would have inevitably been discovered.
Therefore, the court denied the suppression motion in respect of
both the keys and the cocaine. After losing the suppression
motion, defendant pled guilty.
Defendant appealed the denial of his motion to suppress, and
the Appellate Division affirmed.
291 N.J. Super. 245 (1996).
The Appellate Division ruled that the search of defendant was
justified by probable cause to arrest him. Id. at 258. The
court sustained the search of the apartment based on Walker's
consent. Ibid. In the alternative, the court held that
defendant had no expectation of privacy in the apartment to
support a claim that the search violated his constitutional
rights. Id. at 261. We granted certification on March 4, 1997.
149 N.J. 33.
In limited circumstances, police may conduct a protective search of a suspect without probable cause. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968). A protective search does not entail a general search of the person for evidence of crime; rather it is "designed to discover weapons that could be used to assault the officer." State v. Arthur, 149 N.J. 1, 14 (1997). A protective search may be based on reasonable articulable suspicion that a suspect is armed and dangerous. Ibid. Hilongos's search of defendant was for contraband and not for weapons; thus, the protective search exception to probable cause does not apply, and probable cause was required to justify the search of defendant.
The Appellate Division held that Hilongos had probable cause that served as a basis for Smith's arrest and, therefore, the ensuing personal search of Smith was undertaken as an incident to that arrest. 291 N.J. Super. at 258. However, the police must have contemporaneous subjective intent to arrest in order to justify a search incident to arrest. State v. Sims, 75 N.J. 337, 353 (1978). There is no evidence that Hilongos had a subjective intent to arrest Smith when he stopped and subjected him to a search. Nonetheless, because probable cause to arrest is the functional equivalent of probable cause to search, the test for determining probable cause must still be met. The basic issue, therefore, was whether there was probable cause to justify the personal search of defendant.
Hilongos's suspicions were primarily based on a tip from a confidential informant. Information related by informants may constitute a basis for probable cause. Such information, though
hearsay, may provide a sufficient basis for probable cause, "so
long as a substantial basis for crediting the hearsay is
presented." Novembrino, supra, 105 N.J. at 111 (quoting United
States v. Jones,
362 U.S. 257, 269,
80 S.Ct. 725, 735,
4 L.Ed.2d 697, 707 (1960)). The sufficiency of the information related by
an informant as a basis for establishing probable cause is
determined by a standard that calls for consideration and
analysis of all relevant circumstances.
In Illinois v. Gates,
462 U.S. 213,
103 S. Ct. 2317,
76 L.
Ed.2d 527 (1983), the United States Supreme Court held that the
reliability of an informant's tip must be analyzed under the
totality of the circumstances. Id. at 238, 103 S. Ct. at 2332,
76 L. Ed.
2d at 548. We adopted that test under our Constitution
in Novembrino, supra, 105 N.J. at 122. See State v. Lewis,
116 N.J. 477, 486 (1989) (observing in a case involving a warrantless
search "[w]e follow the totality of the circumstances test for
probable cause.").
Two factors generally considered to be highly relevant, if
not essential, that are included in the "totality of the
circumstances" are the informant's "veracity" and the informant's
"basis of knowledge." Gates, supra, 462 U.S. at 238, 103 S. Ct.
at 2332, 76 L. Ed.
2d at 548. Those factors, which are
considered in evaluating the totality of circumstance, were
derived from earlier cases that invoked and applied them as
necessary prongs in determining probable cause, Aguilar v. Texas,
378 U.S. 108,
84 S. Ct. 1509,
12 L. Ed.2d 723 (1964), and
Spinelli v. United States,
393 U.S. 410,
89 S. Ct. 584,
21 L. Ed.2d 637 (1969)). Unlike the two-prong test that had been
formulated in Aguilar and Spinelli, under which both "veracity"
and "basis of knowledge" were essential elements in demonstrating
probable cause, neither of these factors, though relevant, is an
essential element under the totality of the circumstances test.
Under Gates, a deficiency in one of the Aguilar/Spinelli 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. Gates recognized, in the
parallel context of probable cause sufficient to obtain a search
warrant, "[t]he task of the issuing magistrate is simply to make
a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including
the 'veracity' and 'basis of knowledge' of persons supplying
hearsay information, there is a fair probability that contraband
or evidence of a crime will be found in a particular place."
Id. at 238, 103 S. Ct. at 2332, 76 L. Ed.
2d at 548.
Because each of the Aguilar/Spinelli factors constitutes a
relevant circumstance, both must be considered in assessing all
of the surrounding circumstances. The first factor focuses on
the informant's "veracity." In looking to whether an informant
demonstrates "veracity," this Court has previously stated that
past instances of reliability may establish the informant's
veracity. State v. Ebron,
61 N.J. 207, 212-13 (1972) (holding
under Aguilar/Spinelli that satisfactory prior experience with an
informant was sufficient to meet the requirement of veracity).
Under the totality of the circumstances test, past reliability
remains probative of veracity, although its weight in the
ultimate determination of probable cause may vary with the
circumstances of each case. For example, in Novembrino, supra,
we recognized that an informant's veracity could be supported by
information that the informant has "proven reliable in several
investigations (with information he provided)." 105 N.J. at 123.
Nonetheless, a few past instances of reliability do not
conclusively establish an informant's reliability.
The second factor under Gates, is whether the informant had
a "basis of knowledge" for the information given to the police.
The basis of knowledge is relevant to a determination that the
information was obtained in a reliable way. Novembrino, supra,
105 N.J. at 113. The "basis of knowledge" can be disclosed by
the informant if the tip itself relates expressly or clearly how
the informant knows of the criminal activity. Ibid. Even in the
absence of a disclosure that expressly indicates the source of
the informant's knowledge, 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.
Such detailed or special information is particularly important if
the tip does not otherwise disclose that the informant's
knowledge is based on trustworthy sources. Thus, in Novembrino,
we stated: "In the absence of a statement detailing the manner
in which the information was gathered, it is especially important
that the tip describe the accused's criminal activity in
sufficient detail that the magistrate may know that he is relying
on something more substantial than a casual rumor circulating in
the underworld or an accusation based merely on an individual's
general reputation." Ibid. (citing Spinelli, supra, 393 U.S. at
416, 89 S. Ct. at 589, 21 L. Ed.
2d at 644); see State v. Perry,
59 N.J. 383, 392-93 (1971) (holding that an informant's tip
detailing that 'Monies, jewelry, doctor's bag and narcotics' were
in the a particular location contained the type of detail that
was probably known from personal knowledge). By providing
sufficient detail in the tip or recounting information that could
not otherwise be attributed to circulating rumors or be easily
gleaned by a casual observer, an informant can implicitly
disclose a reliable basis of knowledge as the foundation of the
information related to the police.
The basis of knowledge for the tip can also be established
by predicting hard-to-know future events. The prediction of
future events can imply that the informant derived that
information directly as a witness or as one privy to a reliable
witness or source. The prototypical case in which prediction of
future events provided the basis of knowledge for the tip is
United States v. Draper,
358 U.S. 307,
79 S. Ct. 329,
3 L. Ed.2d 327 (1959). In Draper, the informant indicated that the
defendant would be arriving by train from Chicago at a particular
time of day and provided a description of the defendant's
physical appearance, the clothing he 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. It is unlikely that an
informant could provide such detail about future events unless
the informant had a sufficient basis of knowledge of the
underlying criminal conduct. Therefore, the mere allegation that
such future events will occur is sufficient to infer that the
informant is at least claiming to be relying on a reliable
source.
Because the information contained in an informant's tip is
hearsay and must be invested with trustworthiness to be
considered as probative evidence, corroboration is an essential
part of the determination of probable cause. Independent
corroboration is necessary to ratify the informant's veracity and
validate the truthfulness of the tip. "[T]he informant's
veracity, if inadequately documented in the officer's affidavit,
could be bolstered by a corroborative investigation."
Novembrino, supra, 105 N.J. at 113. As Justice White observed in
Gates, if police corroborate "information from which it can be
inferred that the informant's tip was grounded on inside
information, this corroboration is sufficient to satisfy the
basis of knowledge prong" as well as the veracity prong. Gates,
supra, 462 U.S. at 270 n.22, 103 S. Ct. at 2349-50 n.22, 76 L.
Ed.
2d at 569 n.22 (White, J., concurring); Novembrino, supra,
105 N.J. at 114 n.6.
Two cases that demonstrate the importance of corroboration
are Draper, supra, and State v. Hutchins,
116 N.J. 457 (1989).
In Draper, police corroboration of hard-to-know predictive detail
generated a strong inference that the informant was not
fabricating the story and that the allegation that the defendant
would be carrying drugs was also based on reliable information.
358 U.S. at 313, 79 S. Ct. at 333, 3 L. Ed.
2d at 332. In
Hutchins, supra, the police received a tip that "a black man
named Bob, dressed in blue, was selling heroin from a certain
address in Newark." Id. at 459. We remanded the case for the
trial court to resolve certain factual issues including whether
the police corroboration sufficiently bolstered the unverified
tip. Id. at 460, 474. Thus, under a totality of the
circumstances test, corroboration of information provided in a
tip can be a strong indicia of the reliability of the informant's
tip.
In applying this analysis to the facts of this case, we may
conclude that there was some evidence of the informant's
veracity. Hilongos stated he believed the informant to be
reliable because "[h]e did a job for me in the past." Under
Aguilar/Spinelli, a single instance of past reliability would
have been sufficient evidence of the veracity factor. See Ebron,
supra, 61 N.J. at 212-13. However, under the totality of the
circumstances test, we must determine how much weight to give the
informant's veracity in reaching the ultimate determination of
probable cause. As to its weight, the recitation in the tip
reveals little about Hilongos's informant other than that the
informant had been reliable once previously in a case that led to
a conviction. Cf. Zutic, supra, __ N.J. at __ (slip op. at 9)
(indicating that conclusory statement that informant was reliable
insufficient to establish veracity). While that information
increases the likelihood that the informant was being truthful
and possessed the necessary "veracity," without more information
relating to the informant's history or motives, the information
does not firmly establish his truthfulness in this case.
The "basis of knowledge" factor must also be assessed under
the totality of circumstances in accordance with its weight.
Although the informant did state that the transactions were going
on "at that time," the informant did not expressly allege or
otherwise indicate the source or basis of his or her knowledge in
relating the tip. As noted, the contents of a tip, particularly
the kind of factual details provided, can inferentially establish
the informant's claim of a reliable basis of knowledge. The tip
here alleged that defendant was meeting people in the lobby,
going into apartment #2L, and returning to the lobby to give the
people drugs. It also mentioned that a particular car used by
defendant was located on the street in the area. The Appellate
Division found that "in all likelihood only one conversant with
the criminal activity would know" those details. 257 N.J. Super.
at 257. Although the informant provided a detailed description
of the suspect's movements about the building, the informant did
not provide any detail about the drug transactions themselves.
If the informant had been privy to the criminal activity, he or
she would have been likely to know such detail as the manner the
drugs were packaged or where the drugs were kept in the
apartment. This informant provided no such information. The
detail about the suspect's movements was not information the
informant could claim to know only if he or she had a reliable
source of information. The lack of detail and other special or
unusual facts militates against the inference that the informant
had a sufficient basis of knowledge that defendant was engaging
in unlawful drug transactions. Rather, the descriptive
information is such that it can be readily inferred that the
informant was not an insider or a person especially close to
defendant or directly aware of the criminal activities ascribed
to defendant. No detail included in the tip provides information
from which it may be inferred that the informant had personal
knowledge or was privy to a reliable person with such knowledge
that defendant was entering the apartment to obtain drugs and
returning with drugs, nor does any detail of the tip indicate or
reveal how the informant knew that defendant's conduct involved a
drug transaction. Without knowing the facts that led the
informant to believe defendant was engaged in illegal activity,
we cannot make an independent determination of whether that
conclusion was reasonable. See Novembrino, supra, 105 N.J. at
125 (holding that an informant's bald conclusion "unsupported by
an reference to dates, events, or circumstances" did not give a
neutral judge a basis for making an independent evaluation).
The evidentiary weakness of the basis-of-knowledge factor under the totality of the circumstances test goes only to the weight and does not as such necessarily establish the absence of probable cause. Even where the tip lacks sufficient detail to establish a basis of knowledge, independent police investigation and corroboration of the detail in the tip must be considered because it may in some circumstances add to the evidentiary weight of factors as well as the overall circumstances. In reaching the conclusion that the police had probable cause, the Appellate Division observed that the police corroborated the informant's description of the suspect, the modus operandi, and the use of the red Datsun. 291 N.J. Super. at 257-58. The police corroborated defendant's description and approximate location, but the evidence does not support the finding that they corroborated the modus operandi or the use of the Datsun. When making its factual findings, the trial court acknowledged, "The State concedes that other than seeing a man dressed as indicated in the tip, the police did nothing to corroborate any other information because it was 'not feasible.'" That finding is supported by the record. To the extent that the tip described a modus operandi, it alleged that the suspect would be meeting with people and going back and forth between the lobby and apartment #2L. Rather than corroborate that information, the police only briefly observed defendant standing alone outside the building. Also, Hilongos testified that he could not remember if he saw the Datsun before or after he searched defendant. Moreover, the
police corroboration did not include the observation of any
suspicious drug transaction or criminal activity. The police
corroboration only of the suspect's description and location did
not bolster the tip's reliability or add to its weight. The
informant could have easily known defendant's description and
location without being privy to criminal activity, and police
corroboration of that neutral information does not alone or with
all the surrounding circumstances suggest that defendant was
engaged in criminal activity. See Zutic, supra, __ N.J. at __
(slip op. at 11).
Finally, we note that Hilongos's extensive experience with
drug transactions did not contribute to the existence of probable
cause in this case. Certain suspicious behavior may lead an
experienced police officer to suspect that a person is engaged in
criminal activity. See, e.g., Arthur, supra, 149 N.J. at 9. An
officer's experience may enable the officer to draw inferences
that an untrained, inexperienced person could not. In Arthur, we
observed that courts should "ascribe sufficient weight to the
officer's knowledge and experience and to the rational inferences
that could be drawn from the facts objectively and reasonably
viewed in light of the officer's expertise." Id. at 10.
However, the mere fact that an officer is experienced does not
lower the quantum of evidence needed to establish probable cause.
An officer's experience is only useful in establishing probable
cause if the officer uses the experience to infer that a suspect
is engaged in criminal activity. In this case, there was no
suggestion that Hilongos used his experience to infer that
defendant was selling drugs. The only observation Hilongos made
was of defendant standing on the sidewalk wearing a coat and a
yellow cap. His experience did not lead him to believe that such
a person was engaged in criminal activity. Thus, his experience
does not contribute to a finding of probable cause.
In sum, we conclude that in the totality of the
circumstances, Hilongos did not have probable cause when he
searched defendant. Although the informant's veracity is
bolstered by one prior occasion of reliability, doubts concerning
potential ulterior motives must remain. Also, the easy-to-know
detail in the tip did not imply a reliable basis of knowledge.
Finally, the police corroboration of that easy-to-predict detail
did not bolster the informant's reliability in respect of the
allegation of criminal activity. Taken as a whole, these
circumstances did not amount to probable cause. Therefore, the
personal search of defendant and seizure of the keys from
defendant were unlawful.
whether that renders the subsequent search and seizure of
evidence from the apartment unlawful.
Evidence obtained as the fruit of an unlawful search or
seizure must be suppressed. Wong Sun v. United States,
371 U.S. 471,
83 S. Ct. 407,
9 L. Ed.2d 441 (1963); State v. Barry,
86 N.J. 80, 87, cert. denied,
454 U.S. 1017,
102 S. Ct. 553,
70 L.
Ed.2d 415 (1981); accord State v. Sugar,
84 N.J. 1, 25 (1980)
(excluding all evidence derived from violation of the attorney-client privilege, because "the fruits of [law enforcement's]
lawlessness must not be allowed to aid a prosecution in any
manner."). Three factors determine whether subsequently obtained
evidence is tainted by a prior illegality: (1) the presence of
intervening circumstances between the original illegality and the
challenged evidence; (2) the temporal proximity between the
original illegality and the challenged evidence; and (3) the
flagrancy and purpose of the police misconduct. Brown v.
Illinois,
422 U.S. 590, 603-04,
95 S. Ct. 2254, 2261-62,
45 L.
Ed.2d 416, 427 (1975).
Both lower courts ruled that the seizure of drugs from the
apartment was reasonable because access to the apartment was
based on Walker's consent. Implicit in that conclusion is that
the antecedent search of defendant, which resulted in the seizure
of the keys to the apartment, did not lead to or significantly
influence Walker's consent.
Although Walker's decision to give consent cannot be
ascribed to a single reason or motive, it is clear that it was
heavily influenced by the unlawful seizure of the keys from
defendant. Walker knew that the police had obtained keys to her
apartment from defendant, and that knowledge was a major factor
in her decision to give consent to the police to enter the
apartment to investigate. Thus, Walker's consent was not an
independent intervening circumstance. A consent to search that
is attributable to police misconduct involving the violations of
constitutional rights may be regarded as the product of that
unconstitutional conduct and an invalid basis on which to justify
a search. State v. Johnson,
120 N.J. 263, 288 (1990) (holding
that consent that grew out of an illegally obtained confession
was "fruit of the poisonous tree" and thus invalid); cf. State v.
Judge,
275 N.J. Super. 194, 206 (App. Div. 1994) (finding consent
to search was not tainted because the police had probable cause
to search without consent). With regard to temporal proximity,
there was no significant delay between the seizure of the
apartment keys from defendant and the elicitation of Walker's
consent. Shortly after defendant was seized and searched, Walker
was told that the police were currently standing outside her
apartment door with a set of her keys. In light of those
factors, the discovery of the drugs was a product of the unlawful
seizure of the keys. Therefore, the drugs must also be
suppressed.
The Appellate Division also ruled that defendant had no
expectation of privacy in the apartment and consequently had no
standing to challenge the reasonableness of the search of the
apartment and the seizure of the drug contraband. The
circumstances of this case do not require consideration of the
issue of standing. See Arthur, supra, 149 N.J. at 13 (noting but
not deciding issue of standing to challenge unreasonable search
of another person). Where evidence is obtained as the fruit of
the poisonous tree of a prior unlawful search, the defendant's
right to object to its admission as evidence is rooted in the
initial violation of his or her rights. In the context of this
case, we need not consider whether defendant had an expectation
of privacy in apartment #2L. Defendant did have an expectation
of privacy in his own person, and the discovery of the drugs in
the apartment was directly related to and the clear result of the
violation of that personal right. The search of defendant
ultimately led to the drugs, and suppression of the drugs is
necessary to protect his expectation of privacy in his own
person. See Wong Sun, supra, 371 U.S. at 488, 83 S. Ct. at 417,
9 L. Ed.
2d at 455 (suppressing drugs found in another's
apartment because they were the fruit of a statement unlawfully
obtained from the defendant); see Johnson, supra, 120 N.J. at
288.
JUSTICES POLLOCK, O'HERN, and STEIN join in JUSTICE
HANDLER's opinion. CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI
and COLEMAN have filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
32 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAWN SMITH,
Defendant-Appellant.
PORITZ, C.J., GARIBALDI, J., and COLEMAN, J., dissenting.
We would affirm the judgment below substantially for the
reasons expressed in the opinion of the Appellate Division, which
is reported at
291 N.J. Super. 96 (1996).
NO. A-32 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAWN SMITH,
Defendant-Appellant.
DECIDED July 16, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY Chief Justice Poritz, Justices Garibaldi and Coleman