State Of N.J. v. Privott

• Decision Date: 29 June 2010
• Citation: 203 N.J. 16,999 A.2d 415
• Parties: STATE of New Jersey, Plaintiff-Appellant,v.Tysen R. PRIVOTT, Defendant-Respondent.
• Court: New Jersey Supreme Court

203 N.J. 16

999 A.2d 415

STATE of New Jersey, Plaintiff-Appellant,v.Tysen R. PRIVOTT, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Dec. 1, 2009.

Decided June 29, 2010.

COPYRIGHT MATERIAL OMITTED

Jeanne Screen, Deputy Attorney General, argued the cause for appellant (Anne Milgram, Attorney General of New Jersey, attorney).

Michael B. Jones, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).

Justice WALLACE, JR., delivered the opinion of the Court.

In this case, we must determine whether the police had reasonable suspicion to subject defendant to an investigatory detention, and if so, whether the resultant search was conducted in a reasonable manner. The trial court denied defendant's motion to suppress the evidence seized from his person. On appeal, the Appellate Division reversed, concluding that because the anonymous tip of a man with a gun was not corroborated, an investigatory stop was not justified. We granted the State's Petition for Certification. 200 N.J. 208, 976 A.2d 385 (2009). We now affirm, but for different reasons. We hold that the totality of the circumstances justified an investigatory stop, but that because the search was not limited in scope to an intrusion reasonably designed to protect the officer and to discover a weapon, the fruits of the search must be suppressed.

I.

A Union County Grand Jury indicted defendant, Tysen Privott, for third-degree possession of cocaine N.J.S.A. 2C:35-10(a)(1), third-degree possession of cocaine with intent to distribute N.J.S.A. 2C:35-7.1, and second-degree possession with intent to distribute cocaine within 500 feet of a public park N.J.S.A. 2C:35-5(a)(1). Defendant filed a motion to suppress the drugs seized from his person at the time of his arrest.

At the suppression hearing, Officer Jeffrey Plum was the sole witness on behalf of the State. Plum testified that at the time of the incident, he was a thirteen-year veteran of the Plainfield Police Department, and was assigned to the Street Crimes Unit. On May 13, 2003, Plum was on routine patrol with his partner, when at 6:08 p.m., he received a radio dispatch from police headquarters that an anonymous caller reported a man with a handgun at the corner of Plainfield Avenue and West Third Street.

The caller described the individual as a tall, thin, dark-skinned male wearing a black jacket and a black and red cap. Plum was nearby and arrived at the location soon after receiving the dispatch. He saw three men standing at the corner, one of whom was wearing a red jacket and a black and red cap. Plum noticed that except for the color of his jacket, the man, later identified as defendant, matched the physical description relayed by the dispatcher. Defendant's jacket was open, and he wore a long white tee-shirt that hung well below his jacket.

Plum recognized defendant from prior narcotics investigations. He recalled that he had previously arrested defendant for drug charges. Plum testified that although he had never known defendant to carry a weapon, it was common for guns to be found in connection with narcotics offenses and that he had discovered a weapon in over twenty prior drug arrests.

Plum stated that he had participated in roughly ten of the numerous arrests the police made in the area where defendant was spotted, which was known for gang violence. He was aware that defendant lived in that immediate area and associated with a group of persons known by the names of “Cash Money,” “Projects,” “Lib Side,” “C.M.B.,” or “314 Lib Side.” Plum claimed the police were receiving information almost daily regarding incidents concerning both handguns and shootings that involved the same group.

Upon seeing Plum's police car approach the corner, defendant and the two men began to walk away. Plum noticed that defendant appeared quite nervous and observed him move his hand towards his waistband as he was turning away. Based on both defendant's conduct and the fact that he partially matched the anonymous caller's description of a man with a gun, Plum believed that defendant might have a weapon concealed in his waistband. Plum drove to the sidewalk, exited his patrol car, and directed defendant to stop and place his hands against a chain-link fence. Defendant cooperated. Plum then lifted defendant's tee-shirt and observed the top of a plastic bag protruding roughly two inches from his waistband. Plum removed the bag that contained what he suspected to be crack cocaine.

On cross examination, Plum acknowledged that defendant was wearing a red jacket and that his tee-shirt hung at least six inches below his waist. When asked whether defendant had actually grabbed the bottom of his tee-shirt, Plum replied that he did not allow him that much time, and because defendant was making a motion towards his waist, he had defendant place his hands on the fence before he lifted defendant's shirt to visualize the waistband area.

Defendant testified. He stated that he was walking on Third Street when he saw a police car approach. He was wearing a red coat and a red, black, and white fitted hat. He said he wore a white tee-shirt similar to the one he was wearing on the stand, that hung underneath his jacket. Defendant denied that he made any motion with his hand to lift his tee-shirt. He said that the police officer put him against the fence, patted him up and down, came back to his waist, and lifted his shirt.

In denying the motion to suppress, the trial court credited the officer's account of the incident and stated in part:

The [c]ourt finds that ... although the officer's observations did not conform completely, in that the defendant had a red jacket on, the [c]ourt believed that the officer had reasonable suspicion to conduct an investigation stop. And seeing the furtive gesture towards the very area where the informant said that the weapon was located, the officer had an obligation to make an observation of the waistband area, which he did. And the [c]ourt finds that the officer's actions are appropriate.

At trial, a jury found defendant guilty of third-degree possession of cocaine and not guilty of the two counts of possession with intent to distribute. The trial court imposed a five-year prison sentence with a two-year period of parole ineligibility.

On appeal, in an unpublished opinion, the Appellate Division reversed defendant's conviction on the ground that the trial court erred in denying defendant's motion to suppress. The panel found the anonymous tip to be substantially inaccurate, based upon the fact that the tip referred to a man wearing a black jacket with a gun, whereas “[d]efendant was wearing a red jacket and was not in possession of a gun.” Additionally, the panel found no support in the record for the trial court's finding that the anonymous caller said that the weapon was located in the waistband. Citing Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), the panel concluded that the anonymous tip reporting a man with a gun without sufficient indicia of reliability, did not support a valid stop and frisk. The panel reasoned that defendant's acts of walking away and reaching inside his jacket were “consistent with innocent conduct and [did] not, standing alone, constitute a basis for an articulable suspicion of criminal conduct or otherwise corroborate an ‘anonymous tip’ justifying a ‘stop and frisk.’ ”

We granted the State's Petition for Certification. 200 N.J. 208, 976 A.2d 385 (2009).

II.

The State contends that the totality of the circumstances supports the trial court's finding that the police had reasonable and articulable suspicion that defendant was engaged in criminal activity to justify an investigatory stop and a limited protective search for weapons. The State notes that this case, unlike J.L., supra, involved far more than an anonymous tip reporting a person with a gun and a man matching the description given at the location provided. Further, the State argues that the officer's act of lifting defendant's shirt to view the exterior of the waistband of his pants was within the permissible scope of a protective search for weapons.

In contrast, defendant argues that the anonymous tip, coupled with the other mentioned circumstances, were not sufficient to justify a stop and frisk. In addition, defendant contends that the officer's conduct in lifting defendant's shirt, rather than performing a standard pat-down search, was improper, and an unreasonable expansion of the scope of the search.

III.

A.

The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. For a search to be deemed constitutional, a warrant is required based “upon probable cause ‘unless [the search] falls within one of the few well-delineated exceptions to the warrant requirement.’ ” State v. Maryland, 167 N.J. 471, 482, 771 A.2d 1220 (2001) (alteration in original) (citations omitted). “The probable-cause requirement is the constitutionally-prescribed standard for distinguishing unreasonable searches from those that can be tolerated in a free society[.]” State v. Novembrino, 105 N.J. 95, 106, 519 A.2d 820 (1987).

Beyond satisfying the probable cause standard, there are additional constitutionally permissible forms of police encounters that do not constitute searches or seizures for purposes of the warrant requirement. Maryland, supra, 167 N.J. at 483, 771 A.2d 1220. One such encounter is a field inquiry. The police do not violate a citizen's rights “ ‘by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.’ ” Ibid. (quoting Florida v. Royer, 460 U...