State v. Bates

• Decision Date: 17 May 1985
• Citation: 202 N.J.Super. 416,495 A.2d 422
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. John Elbert BATES, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 416

202 N.J.Super. 416

495 A.2d 422

STATE of New Jersey, Plaintiff-Appellant, v. John Elbert BATES, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued April 23, 1985.

Decided May 17, 1985.

Thomas K. Isenhour, Asst. Pros., for plaintiff-appellant (John H. Stamler, Union County Prosecutor, attorney; Thomas K. Isenhour, of counsel and on the letter brief).

Donald A. DiGioia, Jersey City, for defendant-respondent.

Before Judges MICHELS, PETRELLA and BAIME.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Pursuant to leave granted by this court, the State appeals from an order of the Law Division which granted the motion of defendant John Elbert Bates to suppress evidence seized following his arrest.

Defendant was indicted by the Union County Grand Jury and charged with burglary in violation of N.J.S.A. 2C:18-2 and theft of movable property having a value in excess of $200 in violation of N.J.S.A. 2C:20-3. Following his arraignment and entry of a plea of not guilty to the charges, defendant moved to suppress the evidence. The trial court held at the conclusion of the lengthy hearing that there was no probable cause to arrest defendant and, alternatively, if assuming that defendant was not arrested and there was a legitimate investigatory stop, there was no legal right for the police to ask defendant to raise his foot and display the soles of his shoes. The trial court thereupon suppressed all evidence seized as a result of the arrest. The State challenges the ruling contending, among other things, that there was probable cause to arrest defendant prior to the visual inspection of the soles of his shoes and that there clearly was probable cause to arrest after the inspection. We agree and reverse.

The facts are these: At approximately 4:45 p.m. on March 19, 1984, Officers Nolan and Ross of the Rahway Police Department received a report of a theft of a television set from 39 West Scott Avenue, Rahway. A later radio transmission described the robbery suspects as two black males driving a small brown vehicle which had fled west on West Scott Avenue. The report said that one of the suspects was wearing a dark blue or black jacket and that the suspects' vehicle had a temporary registration sticker in its rear window. Officer Nolan went directly to the scene of the alleged burglary, a metal fabrication business located in a commercial and industrial neighborhood in Rahway. As he drove up he observed the television set which the victims had reported as stolen sitting on the lawn in front of the victims' premises. The business itself was set back approximately fifteen feet from the street, including a lawn area approximately ten feet wide and a sidewalk and curb area about five feet wide. Upon arriving at the scene Officer Nolan did not observe any pedestrian traffic in the area or other persons present on the street.

One of the victims, Peter Holler, Sr., told Officer Nolan that he had initially observed defendant and his confederate in their vehicle parked in the no parking zone directly in front of 39 West Scott Avenue. Defendant had exited from the car and had started walking towards the front door. He then "abruptly turned around and got back into the vehicle." Peter Holler, Sr., after seeing defendant, "looked around and noticed that there was a door that was shut to the office area which is usually left open." Also noting that his dog was absent, he called his sons, Daniel and Peter, and told them "something's wrong" and expressed concern about the "black guy out in front." Daniel walked to the front of the building where he "sees this guy stepping out of the vehicle, then stopping and getting right back into the vehicle without ... being on the sidewalk ... but stepping out of the car and then stepping back inside." Daniel then looked upstairs, where the apartment in which he lived was located, and saw that his apartment door was wide open. He ran up the stairs and, looking inside, found that his television set was missing. He yelled down to his father, who was already on the telephone with the police, and reported the theft. Daniel also observed the suspects' vehicle leave the scene and proceed in a westerly direction down West Scott Avenue.

Officer Nolan testified that none of the victims or other employees of the shop had heard the dog barking just prior to the moment when Peter Holler, Sr., spotted defendant, and that the dog was later found elsewhere on the premises. In addition, the victims did not know that the television set was on the front lawn until Officer Nolan pointed it out.

In the course of investigating the theft, Officer Nolan spotted several sets of footprints in the area surrounding the television. Officer Nolan described the area as "fairly dry" and indicated that "there was no rain on that day." Four of the prints had a distinctive pattern, as Officer Nolan described:

It was like a ridge mark going across, then like a little curve coming down with a little circle on the edge. And this was the major characteristic to the shoes and to the prints that were at the scene.

Officer Nolan observed three of these distinctive footprints in the lawn area in front of the shop and spotted the fourth in the dirt area between the sidewalk and curb. The police officer at that time hypothesized that the prints probably matched the shoes worn by one or both of the suspects. The prints followed a path leading from the curb to within four or five feet of the television set and then back to the curb. Other footprints spotted by Officer Nolan in the vicinity of the television matched the "normal flat soled-type shoes with no markings" worn by one of the Hollers. Either Daniel or Peter Holler, Sr., admitted to Officer Nolan that he had been walking in the area around the set before Nolan spotted the distinctive footprints.

Officer Nolan subsequently received a radio transmission that other police officers at a location only two blocks away, Koza's Bar, had detained two possible suspects. Officer Nolan, accompanied by Daniel, proceeded to the bar where Daniel positively identified defendant. The officers later transported defendant back to the shop, where Peter Holler, Sr., also identified defendant.

Defendant and his confederate had been detained at the bar after Officer Ross spotted them walking down West Scott Avenue about two blocks from the victims' shop while he was proceeding to the burglary scene. Officer Ross, believing these individuals fit the descriptions he had received on his radio, watched as they entered Koza's Bar and then called for back-up assistance. While Officer Ross was awaiting the arrival of the back-up police officers, two employees of the metal fabrication business who had chased the suspects down West Scott Avenue, Peter Holler, Jr., and Charles Brown, came up to Officer Ross and told him they had also seen the suspects enter the bar.

After the back-up policemen arrived Officer Ross entered the tavern with another police officer. One suspect was playing pinball, and the other was sitting at the bar. Officer Ross asked them how long they had been there and informed them of the incident at the metal fabrication business. The suspects responded that "they had been there for a while," but in reality less than five minutes had passed since Officer Ross had seen them enter the bar. Officer Ross also turned to one of the other customers and said "Have they been in here long?" The customer responded, "No, they just came in." In response to questioning the suspects told Officer Ross that they were in the area looking for work and had arrived by bus.

Officer Ross requested that the suspects accompany him outside the bar, and they voluntarily complied. Officer Nolan then arrived with Daniel, who identified defendant as the person "he saw at the [shop] ... getting in and out of this vehicle." However, defendant denied having a car and claimed that he and his confederate had walked to the area. Officer Nolan then asked if he could see the soles of the suspects' shoes. One of the suspects "voluntarily lifted his foot up" for Officer Nolan's inspection. As Officer Nolan described:

The imprint of that foot, that shoe, matched what I saw at the scene. The basic design matched the design of the footprints at the scene, which was in the grass and dirt area.

To inspect the soles of the second suspect's shoes, Officer Nolan had to lift up the suspect's foot. The second suspect's shoes also matched the distinctive pattern he had spotted on the lawn of the metal fabricating business. Officer Nolan could not recall which suspect voluntarily complied with his request to inspect the shoes.

Officer Nolan then placed the suspects under arrest. A search of defendant incident to that arrest yielded a set of car keys which the police later found fit defendant's Ventura automobile. Officers searching the area later located defendant's Ventura, which matched the description given earlier by the Hollers' of the suspect's car, around the corner from Koza's Bar. After transporting defendant and his confederate to Police Headquarters, the police confiscated their shoes.

We are satisfied that, contrary to the trial court's conclusion, the officers had probable cause to arrest defendant for burglary and theft. "Probable cause" for an arrest exists where a police officer has a well-founded suspicion or belief of guilt. That suspicion or belief may constitute something less than the proof needed to convict and something more than a raw, unsupported suspicion. State v. Davis, 50 N.J. 16, 23-24, 231 A.2d 793 (1967), cert. den., 389 U.S. 1054, 88 S.Ct. 805, 19 L.Ed.2d 852 (1968); State v. Contursi, 44 N.J. 422, 429-430, 209 A.2d 829 (1965); State v. Burnett, 42 N.J. 377, 386, 201 A.2d 39 (1964). As Chief Justice Weintraub so aptly pointed out in State v. Davis, supra, "the rule of probable cause is 'a practical, non-technical conception' designed to...