STATE OF NEW JERSEY v. ZHOU-SONG NI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3218-05T53218-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZHOU-SONG NI,

Defendant-Appellant.

 

Submitted October 25, 2006 - Decided November 28, 2006

 
Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, S-1130-93.

Stacey Van Malden (Goldberger & Dubin) attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This appeal arises out of a robbery at a Charlie Brown's restaurant in Tenafly in May 1993. Defendant Zhousong Ni, and his codefendant Zhouhai Yi, were indicted by a Bergen County Grand Jury on July 29, 1993, on the following charges: second-degree burglary, N.J.S.A. 2C:18-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree kidnapping, N.J.S.A. 2C:13-1d (count three); second-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (count four); second-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); third-degree unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4e (count six); fourth-degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-5d (count seven); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count eight).

Defendant was arrested on May 17, 1993; after posting bail, he absconded from the jurisdiction. After his return, he made a motion in March 2005 to suppress evidence seized on the date of his arrest. The court denied that motion and defendant pleaded guilty, through a Korean interpreter, to counts one through three of the indictment; counts four through eight were dismissed. The court imposed a ten-year prison term on count one, and concurrent twenty-year terms on counts two and three, each with a seven-year period of parole ineligibility. Defendant appeals from the June 10, 2005 order denying his suppression motion. He claims he was illegally detained and searched. We agree and consequently reverse.

The facts surrounding defendant's arrest are gleaned from the testimony of Teaneck Police Department Patrolman Joseph Careccio and Detective Sergeant Christopher Kurscher at the suppression motion hearing on May 11, 2005.

On May 17, 1993, at approximately 2:00 a.m., Patrolman Careccio, who had been a police officer for approximately one and one-half years at the time, received a radio transmission on the State Police Emergency Network (SPEN), which indicated that an armed robbery had taken place at a Charlie Brown's restaurant in Tenafly, a nearby town. The suspects were alleged to be two Asian males with unknown weapons.

At 3:44 a.m., while Careccio was driving his patrol vehicle in Teaneck approximately three miles from the site of the robbery, he observed two Asian males walking on the sidewalk. Careccio was familiar with that area of the town; it was a commercial area that contained businesses, including at least two Chinese restaurants and one Japanese restaurant. The businesses were not open at that time of the morning. Patrolman Careccio had never before seen Asian males walking in that area of town at that hour.

One male was taller than the other; the taller one was approximately five foot four inches, 145 to 150 pounds. The men were not doing anything unusual; they were just walking down the street. They were not wearing heavy overcoats and neither appeared to be carrying a weapon. The shorter man had a gym bag over his shoulder.

Upon seeing the men, Careccio radioed headquarters to request a further description of the actors from the armed robbery. No additional information was forthcoming. Careccio decided to stop the men. He parked next to the sidewalk with his overhead lights activated and the vehicle's spotlight directed toward the men. He got out of his car and identified himself as a police officer. He said: "Gentlemen, my name is Officer Careccio, I am from the Teaneck Police Department. I would like to speak to you for a minute." As he spoke, the men turned toward him, and the taller man, later identified as defendant, began walking toward him, speaking in a language that the officer did not understand. At that point, the officer instructed the men to turn and place their hands on the hood of the officer's patrol car.

Patrolman Careccio testified that defendant smiled at him while he was speaking to him, did not make any threatening motions or raise his voice, and was not carrying a weapon. The officer could not recall if he used a hand motion to indicate to defendant to stop while defendant was approaching him.

When the men did not follow Careccio's directions to place their hands on the patrol vehicle, he attempted to convey his instructions by pointing to the hood of his car, and when that did not work, he physically placed their hands on the car. His concern at the time was that the men were the armed robbers from Tenafly.

After their hands were placed on the police vehicle, the men repeatedly attempted to turn to speak to Careccio, taking their hands off of the car. He attempted to restrain them as they did so by placing his hand between their shoulder blades and pushing them forward, away from him, back against the car.

On direct examination, when asked if the men were cooperative, Patrolman Careccio responded:

A. I wouldn't say they were cooperative, I initially took it because they were confused because there could have been a language barrier, I kept implying and pointing to the hood and have them put their hands on the hood of the car to a point where after physical attempts I put their hands on the car and told them to keep them there.

Q. You instructed them to do that verbally?

A. Verbally[,] and I pointed to the car, pointed to the hands "Put your hands on the car". As I was directing them to do it at which point I wasn't getting anywhere so I just decided to put it there for them.

Q. Why did you decide to take that particular action at this point in time?

A. Well, at this point it was 2 to 1, I was out-numbered and I was awaiting back up -- it was safer.

. . . .

THE WITNESS: It was safer . . . for me to see their hands, put their hands on the hood until a back up arrived for me at that time.

When, on cross-examination, Patrolman Careccio was asked if defendant used a threatening tone when he spoke to him in a foreign language, the officer responded:

A. It wasn't a threatening tone but as he continued to advance towards me . . . he was not intimidating, nothing to that effect but he was getting too close for comfort when he didn't understand what I was saying and I wasn't understanding him and I wasn't going to be able to watch both guys and I didn't know what was in that bag or what was going on. My sight was blocked on the second party and the safest thing at that time that I thought I had to do was put their hands on the car until I had another set of eyes there.

Q. Now you still at that point, aside from approaching you and walking a step or two or three towards you, you still hadn't seen either individual do anything physically threatening to you; had you?

A. When you say "physically threatening."

Q. Well, they didn't raise their arms; did they?

A. No.

Q. They didn't try to punch you; did they?

A. No.

Q. They didn't shout at you, did they?

A. No.

Q. They didn't adopt any sort of karate or marshal arts pose that would give you concern that you might be in trouble . . . .

. . . .

A. No.

Q. Now because of the language confusion according to you, you kept on having to turn them around and push them against the roof of your car; right?

A. Front hood.

. . . .

Q. And they were trying to turn around or at least one of them was trying to turn around and talk to you; is that a fair statement?

A. I would say that's fair.

Q. And you didn't want to talk to him at that point, so that you just put your arm or your hand in the small of their back or between their shoulder blades and pushed him against the car; right?

A. As well as telling him "Keep your hands on the car don't take them off."

Q. But . . . at that point you didn't know whether they understood English at all?

A. That's correct.

. . . .

Q. Now in any of the times leading up to that when you are pushing their back towards the hood of the car, neither one of the individuals has made a threatening move towards you in any manner?

. . . .

A. No.

Q. They don't try to raise their arm in a threatening manner to try to hit you or strike at you?

A. No.

Q. They certainly don't have anything in their hands with which to hurt you; right?

A. At this time, no.

Careccio was concerned the gym bag might contain weapons. Thus, when the men had their hands against the patrol vehicle, he attempted to remove the bag from Yi's shoulder; Yi tried to prevent the bag from being removed by moving his shoulder forward when the officer reached for the strap. Careccio succeeded in removing the bag from Yi's shoulder. The bag was very heavy; he did not open it but instead tossed it behind him onto the roadway.

Sergeant Christopher Kurscher arrived on-scene after Careccio had stopped the two men. He testified that it was "very unusual" to see people walking in the area at that hour, as no businesses were open, and public transportation was not operating. He had also received the SPEN transmission, and was in the process of approaching the men, when he received a radio transmission that Careccio had already stopped them. As Kurscher pulled his patrol car over, Careccio was directing the men to place their hands on the hood of his police car. Kurscher observed that the men "weren't complying" with Careccio's instructions. When Kurscher approached the scene after parking his car, the two men looked directly at him; that "concerned" him. After Careccio tossed the shoulder bag, Kurscher, out of safety concerns, stepped between the two men to create some distance between them. A third officer, Lieutenant Tiernan, arrived at the scene at about that time.

Kurscher directed defendant toward the back of one vehicle, as Careccio directed Yi towards the front of the other vehicle. At that point, Careccio told Tiernan that the men had not been patted down, and that the bag was heavy. Careccio directed Tiernan to check the bag for weapons. Kurscher began to pat down defendant and Careccio patted down Yi. As Kurscher conducted the pat-down, he heard Careccio remark that he had found money, and heard Tiernan say that he had found gloves and coins. Kurscher found something "hard and somewhat squarish . . . maybe three to four inches" in size, in defendant's waistband. The object was "a significant amount of money." Tiernan found gloves, cash and wire cutters in the bag. Both men were placed under arrest.

Against these facts, the motion judge concluded that the search of defendant was legal. The judge said:

The Court is satisfied that the officers involved in this case acted properly. The fact that the defendant did not follow instructions, and after the officer was able to remove the bag and toss it behind from where he stood, both of those circumstances were reasonable for the officer to conduct the search and seizure, therefore the motion to suppress is denied.

Both the federal and State constitutions prohibit unreasonable police searches and seizures by requiring warrants issued upon probable cause. U.S. Const. amend. IV; N.J. Const. art. I, 7. Where no warrant is sought, the State has the burden to show that the search falls within "one of the few well-delineated" exceptions to the warrant requirement. State v. Pineiro, 181 N.J. 13, 19 (2004) (citing State v. Maryland, 167 N.J. 471, 482 (2001)).

One such permissible warrantless encounter between police and citizens is a field inquiry, which is a limited form of investigation that may be conducted without grounds for suspicion. State v. Nishina, 175 N.J. 502, 510 (2003). "In general terms, a police officer properly initiates a field inquiry by approaching an individual on the street, or in another public place, and by asking him if he is willing to answer some questions." State v. Rodriguez, 172 N.J. 117, 126 (2002) (citation and quotations omitted).

A field inquiry is not considered a constitutionally prohibited seizure as long as the officer does not deny the individual the right to move. State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973). But see Maryland, supra, 167 N.J. at 485 (field inquiry initiated solely on the basis of race is unconstitutional). An encounter becomes more than a mere field inquiry when an objectively reasonable person feels that his or her right to move has been restricted. Rodriguez, supra, 172 N.J. at 126.

A person has been "seized" when a police officer restrains an individual's freedom to walk away. Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 903 (1968); State v. Caldwell, 158 N.J. 452, 457 (1999). Only "[w]hen the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, [can] the opposing law enforcement interest . . . support a seizure based on less than probable cause." United States v. Place, 462 U.S. 696, 703, 103 S. Ct. 2637, 2642, 77 L. Ed. 2d 110, 118 (1983). To determine the reasonableness of an investigatory stop under New Jersey law, the court evaluates "the totality of the circumstances." State v. Davis, 104 N.J. 490, 504 (1986). "The general governmental interest is sufficient to justify a particular intrusion, however, only when the police officer can 'point to specific and articulable facts, which taken together with rational inferences from these facts, reasonably warrant that intrusion.'" Id. at 500 (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906).

Bringing these principles to bear, we examine Patrolman Careccio's actions to determine the legality of the search. First, we conclude that Careccio's initial approach of the two men was permissible. He had received a radio report concerning an armed robbery by two Asian men approximately an hour and forty-five minutes before he spotted the men. The area in which they were walking was commercial in nature, and generally, pedestrians were not seen at that hour. The officer got out of his patrol car, approached the men, and spoke to them. At that point, no constitutionally-prohibited seizure had occurred, as the officer did not deny the individuals the right to move.

After that point, however, when the officer told defendant and Yi to place their hands on the patrol vehicle, the officer's actions were transformed into a seizure within the purview of the Fourth Amendment. Once the officer instructed the men to place their hands on the patrol car the officer actually forced the men's hands onto the patrol car because they did not understand English the men were no longer free to leave.

The question then becomes whether at that point, the totality of the circumstances, in light of Patrolman Careccio's experience and with rational inferences to be drawn from the facts, provided him with a reasonable suspicion, grounded in specific and articulable facts, that the men had committed the robbery. See United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604, 612 (1985) ("if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encountered was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion"). We conclude that the facts were not sufficient, even after drawing all reasonable inferences, to provide the police officer with a reasonable suspicion that the men were involved in the robbery.

The robbery occurred almost two hours earlier in a location approximately three miles from the site of the stop. The only description of the robbery suspects provided to Patrolman Careccio was that they were two Asian males. No further description of the men was available. When the officer spotted the men, they were simply walking down the street. Aside from the gym bag carried by Yi, the men were not carrying anything. They were not wearing heavy coats that could have concealed weapons or other contraband, nor did they attempt to run from the scene when the officer stopped his patrol vehicle next to them. When the officer questioned them, they simply did not understand what he was saying. He observed nothing that would add to the information he already had that would link the men to the robbery. And, the information he already had was insufficient to support a reasonable and articulable suspicion that the men robbed the restaurant earlier that morning.

The New Jersey Supreme Court's decision in Caldwell, supra, 158 N.J. 452, is instructive. There, a police officer received information from a confidential informant that Curtis Stuart, who was wanted on a warrant, was standing in the front of a multi-unit dwelling in Paterson. Id. at 454-55. The informant described Stuart as a black male, but gave no detailed description. Id. at 455. The detective had no personal knowledge of what Stuart looked like. Ibid.

The detective, along with two other officers, proceeded to the address given by the informant, where they saw a black male, who was later identified as the defendant, Eric Caldwell, standing alone in front of the building. Ibid. When Caldwell saw the officers, he turned and ran into the building. The officer followed and told him to stop. As he turned to face the officers, he tossed a bag of illegal drugs from his right hand. Id. at 456.

The Supreme Court, in affirming the trial court's suppression order, concluded that when the officers chased the defendant into the building, commanding him to stop, a seizure of the defendant occurred, and that seizure was not based upon sufficient information to justify the stop. Id. at 459-60. In arriving at its decision, the Court said:

The informant did not give Detective Smith a physical description of the individual. The informant did not describe the individual's height, weight, or the clothing he was wearing. He offered no distinguishing characteristics that would have assisted Detective Smith in making a positive identification of the suspect. The only information the officer possessed concerning the suspect was that he was a black male and that he was at a certain address. The police must have a sufficiently detailed description of the person to be able to identify that person as the suspect named by the informant. Without such a requirement, police could theoretically conduct wide-ranging seizures on the basis of vague general descriptions.

[Id. at 460.]

That analysis is equally applicable here. While the information did not come from an informant but from the SPEN, the information available to Careccio was less descriptive and provided less of a basis for a reasonable suspicion than did the information that was available to the officers in Caldwell. Careccio stopped the men because they were Asian, almost two hours after the robbery, in a location approximately three miles from the robbery site, in an area of the city where pedestrians generally were not found at that hour of the morning. Nothing either of the men did after they were stopped, before they were told to place their hands on the patrol vehicle, added to the information available to the officer that could have led him to conclude that the men were involved in the robbery. Neither their race, nor their gender, nor their inability to speak English, even considering when and where they were observed, constituted the specific and articulable facts necessary to impede their movement.

We next address whether Careccio had reason to believe that the men were armed and dangerous so as to justify the seizure. An officer may pat down an individual's outer clothing even without probable cause for an arrest; and the officer need not be "absolutely certain" that the individual is armed. State v. Diloreto, 180 N.J. 264, 276 (2004). Here, however, Patrolman Careccio lacked a reasonable basis to believe the men were armed or dangerous.

The seizure was apparently triggered when defendant, who did not speak English, took several steps toward the officer while speaking to him. Yet, it was the officer who initiated the conversation with defendant. Though defendant took steps towards the officer, defendant was smiling at the time; he did not speak in a threatening tone; and he did not raise his arms or intimidate the officer in any way. The officer did not observe any weapons in either man's possession nor did defendant or Yi make any threatening movements. These circumstances did not provide the officer with an articulable reason to fear for his safety.

Defendant's inability to communicate with the officer because he spoke a foreign language was no different from a refusal by a person stopped in a field inquiry to answer a police officer's questions. Cf. Maryland, supra, 167 N.J. at 483 (no grounds for a seizure where a person stopped during a field inquiry chooses not to listen to the officer or to walk away) (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)). The intrusion here, where the officer not only directed but forced defendant to place his hands on the patrol car because defendant could not speak English, was not justified under the circumstances.

Patrolman Careccio testified that because there were two men, and he was alone, he required the men to keep their hands on the car until his backup arrived. We are mindful that there exists an intrinsic danger to a police officer anytime he confronts a potential suspect, and that danger increases when the officer is outnumbered in a deserted area late at night. Nevertheless, to warrant an intrusion on an individual's movement, more than this generalized danger is required. An investigatory stop requires "'a particularized and objective basis for suspecting the person stopped of criminal activity.'" Pineiro, supra, 181 N.J. at 22 (quoting State v. Stovall, 170 N.J. 346, 356 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996) (internal citation omitted))). The circumstances presented to Patrolman Careccio did not provide him with that "particularized and objective basis" to warrant a seizure. The actions taken by defendant and Yi when they were stopped, even with the officer's knowledge that an armed robbery took place earlier that evening, did not reasonably lead the officer to believe that either defendant or Yi was armed and dangerous.

In denying defendant's suppression motion, the trial judge relied in part on Yi's reluctance to give up the gym bag, and that the bag was heavy and could have contained weapons. Yi's actions, and the officer's concern about the weight of the bag, took place, however, after the seizure, which occurred as soon as Patrolman Careccio required the men to place their hands on the patrol car. Whatever occurred after that point in time is of no moment to our determination. As soon as the men were ordered to place their hands on the vehicle, an investigatory detention took place. In the absence of a reasonable and articulable suspicion to support the investigatory detention, the evidence seized during the illegal detention must be suppressed.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

The judgment of conviction lists this count as a third-degree offense.

It is unclear from the record on appeal when defendant returned to New Jersey. While he was away, his codefendant, Yi, pleaded guilty to counts one through three of the indictment, and served a seven-year prison term before being deported to China.

Aside from the wire cutters, the record makes no mention of weapons found on the two men's persons or in the gym bag.

(continued)

(continued)

19

A-3218-05T5

November 28, 2006