State v. Morrison

• Decision Date: 17 June 1999
• Citation: 730 A.2d 447,322 N.J. Super. 147
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Rasheed MORRISON and Jerard Craig, Defendants-Respondents.
• Court: New Jersey Superior Court

730 A.2d 447

322 N.J. Super. 147

STATE of New Jersey, Plaintiff-Appellant, v. Rasheed MORRISON and Jerard Craig, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Submitted June 2, 1999.

Decided June 17, 1999.

Fred J. Theemling, Jr., Hudson County Prosecutor, for plaintiff-appellant (Salvatore E. Rozzi, Assistant Prosecutor, on the brief).

Dennis D.S. McAlevy, Union City, for defendant-respondent Rasheed Morrison (Susanne LaVelle, on the brief).

Francis S. Cutruzzula & Associates, Lyndhurst for defendant-respondent Jerard Craig, join in the brief of respondent Rasheed Morrison.

Before Judges PRESSLER, BROCHIN and STEINBERG.

The opinion of the court was delivered by STEINBERG, J.A.D.

Pursuant to leave granted, the State appeals an order granting the motion of defendants Rasheed Morrison and Jerard Craig to suppress.

The only witness to testify at the suppression hearing was Jersey City Patrolman John Peters. Peters testified that he had been assigned to the Lafayette Gardens housing complex for approximately eleven years. He was working that day in uniform with a partner, Patrolman Michael Krajewski. While he was on patrol in a police car he received a radio transmission from Lieutenant Teschlog requesting his presence on Ash Street. According to Peters, he stopped his vehicle in front of 46 Ash Street. As he and Krajewski exited the vehicle, two males immediately fled into the interior of the complex. He immediately recognized Morrison and Craig. Although he did not know Morrison's name at the time, he knew he had seen him as well as Craig in the complex many times previously. He had also received numerous complaints from management and other tenants regarding their sales of narcotics in the complex, which is in a very high narcotics area in which Peters had previously made numerous arrests.

Peters gave chase and observed both defendants run into the hallway of 46 Ash Street. Teschlog was ahead of Peters and apprehended Morrison. Teschlog told Peters that Craig had gone through a crawl space to the roof. By this time other officers had arrived and they lifted Krajewski into the crawl space to attempt to find Craig. As soon as Krajewski got into the crawl space he found a plastic bag filled with forty-nine vials of suspected cocaine. On cross-examination Peters conceded that he observed no illegal activity and was not advised by any other officer that they had observed illegal activity before participating in the chase.

On this appeal the State argues that the drugs were properly retrieved because the facts objectively gave rise to a reasonable and articulable suspicion that defendants were engaged in criminal activity. We agree and reverse.

The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV. Likewise, New Jersey's Constitution protects "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures". N.J. Const. art. 1, ¶ 7. Because of the strong preference for a warrant, a warrantless search is presumed to be illegal unless it falls within one of the recognized exceptions to the warrant requirement. State v. Citarella, 154 N.J. 272, 278, 712 A.2d 1096 (1998); State v. Demeter, 124 N.J. 374, 379-80, 590 A.2d 1179 (1991). One of those exceptions is the right of a police officer to conduct a brief, investigatory stop if he is able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968); State v. Citarella, supra, 154 N.J. at 278, 712 A.2d 1096; State In Interest of C.B., 315 N.J.Super. 567, 573, 719 A.2d 206 (App.Div.1998).

This appeal requires us to consider if and when defendants were subjected to an investigatory stop which implicated their constitutional rights and, if they were, whether the officers had a reasonably articulable suspicion justifying the stop. An investigatory stop occurs when the officers act in such a way that a reasonable person would believe that he or she is not free to leave. See State v. Citarella, supra, 154 N.J. at 280, 712 A.2d 1096. The United States Supreme Court has held that a police officer's chase, although it displays a show of authority, does not constitute a seizure under the Federal Constitution in the absence of the application of physical force, however slight, or a show of authority to which the suspect yields. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690, 697 (1991). However, our Supreme Court has chosen to provide greater protection under the New Jersey Constitution and has held that for purposes of determining whether a seizure of the person has occurred, the court must consider the totality of the surrounding circumstances to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. See State v. Tucker, 136 N.J. 158, 165-66, 642 A.2d 401 (1994). Considering the totality of the circumstances, particularly the fact that as soon as defendants fled they were chased by four officers, we conclude that the chase would cause a reasonable person to believe that the police wanted to capture him and not just to speak with him. See id. at 166, 642 A.2d 401. We therefore conclude that a seizure or investigatory stop occurred.

We next consider whether the police had a reasonably articulable suspicion that defendants were engaged in illegal activity sufficient to justify the investigatory stop. The level of reasonable suspicion necessary to justify an investigatory stop is less than the probable cause standard needed to support an arrest. State v. Citarella, supra, 154 N.J. at 279, 712 A.2d 1096; State v. Arthur, 149 N.J. 1, 8, 691 A.2d 808 (1997). In measuring the reasonableness of the police conduct in conducting an investigatory stop, the need to search or seize must be balanced against the invasion which the search or seizure entails. State v. Arthur, supra, 149 N.J. at 7, 691 A.2d 808. "The facts used in that balancing test are to be judged objectively: `would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?' " Id. at 7-8, 691 A.2d 808. In determining whether the officers' actions are reasonable, consideration must be given to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Id. at 8, 691 A.2d 808. The motion judge concluded that the officer did not have a reasonably articulable suspicion that defendant was involved in criminal activity because he did not know why Teschlog had begun chasing defendants and did not see defendants involved in criminal activity. The judge considered State v. Doss, 254 N.J.Super. 122, 603 A.2d 102 (App.Div.),certif. denied,130 N.J. 17, 611 A.2d 655 (1992), and observed that unlike Doss, supra, there was no indication that when the police car approached, someone called out "police" and at that point everyone fled. We disagree with that analysis.

We recognize that flight upon seeing a marked police car, without more, does not justify a seizure of the person fleeing. State v. Tucker, supra, 136 N.J. at 168-70, 642 A.2d 401. However, flight is a factor to consider with all the other surrounding circumstances to determine whether the officers had a reasonable and articulable suspicion that defendants were engaged in illegal activity. See State v. Citarella, supra, 154 N.J. at 281, 712 A.2d 1096; State In Interest of C.B., supra, 315 N.J.Super. at 575, 719 A...