State v. Doss

• Decision Date: 19 February 1992
• Citation: 254 N.J.Super. 122,603 A.2d 102
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Darryl DOSS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 122

254 N.J.Super. 122

603 A.2d 102

STATE of New Jersey, Plaintiff-Respondent, v. Darryl DOSS, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Jan. 8, 1992.

Decided Feb. 19, 1992.

Wilfredo Caraballo, Public Defender, attorney for appellant (Virginia C. Saunders, Asst. Deputy Public Defender, of counsel and on the brief).

Robert J. Del Tufo, Atty. Gen., of New Jersey, attorney for respondent (Lisa Sarnoff Gochman, Deputy Atty. Gen., of counsel and on the brief).

Before Judges DREIER, GRUCCIO and BROCHIN.

The opinion of the court was delivered by

BROCHIN, J.A.D.

Defendant Darryl Doss was indicted for third degree possession of cocaine contrary to N.J.S.A. 2C:35-10. Claiming that he had been illegally searched and arrested, he moved before trial to prevent the State from introducing into evidence cocaine which he asserted was the product of the unlawful search. His motion was denied and he pleaded guilty in accordance with a plea agreement. Consistently with that agreement, he was sentenced to one year of probation conditioned on ninety-two days in the county jail. A $1000 D.E.D.R. penalty, a $50 laboratory fee, and a $30 V.C.C.B. penalty were also imposed, and his driver's license was revoked for six months.

Defendant appeals from the denial of his motion to suppress evidence and also from the court's refusal to consider his application for admission to the pretrial intervention program.

In the Amity Heights Housing Projects in South Bridgeton, New Jersey, there is a portion of a parking area, known as the "wall," where groups of people congregate at all hours of the day and night. Drug trafficking is known to be prevalent there.

At about 11:30 p.m. on November 29, Detective Robert Parks, a narcotics investigator for the Bridgeton Police Department, and several other police officers, all in an unmarked police car and in civilian clothes, drove into the parking area near the "wall." Although the weather was cold, a group of twenty or more persons had gathered there. The vehicle was recognized as a police car and some of the persons in the crowd yelled a warning that the police were coming. Four or five persons broke away from the crowd and ran.

One of the persons who ran away was later identified as the defendant. Detective Parks and another policeman followed defendant in their police car until he ran into an alley. When defendant entered the alley, Detective Parks and the other policeman got out of the car and ran after him on foot. The detective yelled, "Police, stop!" two or three times, but the defendant continued his flight. As the defendant ran into a lighted area, Detective Parks recognized him as someone whom he had seen in the project on previous occasions conversing with convicted drug dealers.

Defendant tripped and fell as he ran. Detective Parks and the other police officer caught up with him, grabbed him on the ground, handcuffed him, and advised him that he was under arrest. One of the policemen grabbed a baseball cap balled up in the defendant's hand, opened it and saw that it contained a substance which looked like cocaine. The material, which was seized and later positively identified as cocaine, is the subject of defendant's motion to suppress evidence.

Detective Parks testified that he chased defendant because he ran away when the police arrived. Because of the nature of the area, the detective suspected that defendant ran away either because there was a warrant outstanding for his arrest or because he was committing a drug offense.

Detective Parks also testified that before he seized the cocaine in defendant's hat, he had arrested the defendant for disorderly conduct in violation of N.J.S.A. 2C:33-2. That statute states:

(a) Improper Behavior. A person is guilty of a petty disorderly persons offense if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he....

2. Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.

The State's theory was that by running from a policeman who had lawfully ordered him to stop, the defendant compelled the police to chase him into the project causing a public hazard.

On appeal, the defendant argues that "the totality of the circumstances" did not justify the police in chasing, stopping, frisking, or arresting him; that his arrest ostensibly for violation of N.J.S.A. 2C:33-2 was a pretext; and that the cocaine seized from him when he was arrested should therefore have been suppressed. The defendant also argues that he was wrongfully excluded from the pretrial intervention program because he had moved to suppress evidence.

To be legally entitled to arrest defendant without a warrant, the police had to have probable cause to believe that he was committing a crime in their presence or had committed a crime elsewhere which was punishable by more than one year in state prison. ¹ State v. Macuk, 57 N.J. 1, 8, 268 A.2d 1 (1970); State v. Doyle, 42 N.J. 334, 349, 200 A.2d 606 (1964). The State and the defendant both agree that when the police began to chase defendant, they did not have probable cause to believe that he was or had been engaged in criminal activity. We concur. Cf. State v. Sims, 75 N.J. 337, 351-356, 382 A.2d 638 (1978).

However, for more than 20 people to have gathered in a parking lot at 11:30 p.m. on a cold, dark November night in an area where drug trafficking was known to be prevalent was suspicious. When someone in the crowd shouted an alarm as soon as he recognized that the vehicle which had arrived was a police car, causing three or four persons, including the defendant, to separate themselves from the crowd and run, the circumstances were sufficient to cause an experienced policeman to think that the persons who were fleeing had been engaged in criminal conduct which they were trying to hide from the police. When Detective Parks recognized defendant as someone whom he had seen conversing with convicted drug dealers on a number of occasions, the officer's suspicions would necessarily have been heightened.

Under the circumstances, although the police did not have probable cause to arrest and search defendant, they would have been remiss if they had not attempted to stop and interrogate him. They were legally entitled to order defendant to halt ², and they were entitled to use non-lethal force to compel compliance with their command. See Kolender v. Lawson, 461 U.S. 352, 366, 103 S.Ct. 1855, 1863, 75 L.Ed.2d 903, 915 (1983) (Brennan, J. concurring) ("[U]nder the Fourth Amendment, police officers with reasonable suspicion that an individual has committed or is about to commit a crime may detain that individual, using some force if necessary, for the purpose of asking investigative questions."); Edwards v. United States, 364 A.2d 1209 (D.C.App.1976), reh'g en banc, 379 A.2d 976 (D.C.App.1977) (When a suspect sought to evade a valid Terry stop by fleeing into private premises, the police are not required simply to "shrug [their] shoulders and allow a crime to occur or a criminal to escape."); 3 Wayne R. LaFave, Search and Seizure § 9.2(d), 368-69 (2d 1987). ³

The New Jersey Supreme Court summarized the applicable rule as follows in State v. Davis, 104 N.J. 490, 503, 517 A.2d 859 (1986):

New Jersey has long recognized that a temporary street-detention based on less than probable cause may be constitutional. In a pre-Terry decision, we recognized that a police officer's duties include vital preventive roles and that reason and common sense dictate "he should clearly have the right to stop persons on the street for summary inquiry where, as here, the circumstances are so highly suspicious as to call for such an inquiry." State v. Dilley, [49 N.J. 460, 464, 231 A.2d 353 (1967) ]. In determining the reasonableness of the detention, we concluded that all factors must be balanced, including the basis of suspicion on the part of the police officer and the nature and extent of the restraint on the individual.

See also State v. Sheffield, 62 N.J. 441, 303 A.2d 68, cert. denied, 414 U.S. 876, 94 S.Ct. 83, 38 L.Ed.2d 121 (1973); State v. Pierson, 223 N.J.Super. 62, 537 A.2d 162 (App.Div.1988); State v. Alexander, 191 N.J.Super. 573, 468 A.2d 713 (App.Div.1983), certif. denied, 96 N.J. 267, 475 A.2d 570 (1984). Compare State v. Kuhn, 213 N.J.Super. 275, 517 A.2d 162 (App.Div.1986) (Two men talking to a third man seated in a car parked diagonally across more than one parking spot outside a bar in an area of high illegal drug activity in the mid-afternoon did not amount to a basis for an "articulable suspicion" justifying a stop, pat-down and interrogation.)

In the present case, once the totality of the circumstances observed by the police justifiably aroused an "articulable suspicion" which warranted their stopping and interrogating defendant, he was legally obligated to halt in response to their shouted orders to stop and, subject to his privilege against self-incrimination, he had a duty to answer their inquiries. ⁴ As the Court stated in State v. Lashinsky, 81 N.J. 1, 11, 404 A.2d 1121 (1979), "where an officer's instructions are obviously reasonable in furtherance of his duties, an individual toward whom such instructions are directed has a correlative duty to obey them." See also State v. Taylor, 121 N.J.Super. 395, 297 A.2d 216 (Cty.Dist.Ct.1972). When defendant continued his flight from the pursuing police officers despite their shouted orders to halt, his refusal to obey their orders, together with all of the other circumstances of the case, gave the police reasonable cause to believe that he had committed or was then committing a criminal offense. See Kolender v. Lawson, supra, 461 U.S. at 366 n. 4, 103 S.Ct. at 1863 n. 4, 75 L.Ed.2d at 915 n. 4 (Brennan, J., concurring) ("[R]eactions [by individuals to a properly limited Terry encounter], such as flight, may often provide...