STATE OF NEW JERSEY IN THE INTEREST OF A.O.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5400-04T45400-04T4

STATE OF NEW JERSEY

IN THE INTEREST OF

A.O.

Juvenile-Appellant.

___________________________________________________

 

Submitted September 20, 2006 - Decided

 
Remanded by Supreme Court September 10, 2007

Resubmitted October 30, 2007 - Decided

Before Judges Parker and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. FJ-07-2722-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard W. Berg, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent, State of New Jersey (Joan E. Love, Assistant Prosecutor, on the brief).

PER CURIAM

In our earlier decision in this appeal, we set aside the adjudication of delinquency because it was based on evidence unconstitutionally seized from the juvenile, A.O., after the police chased and apprehended him following his flight from a field inquiry. At the time, we relied extensively on our decision in State v. Williams, 381 N.J. Super. 572 (App. Div. 2005), which -- following our decision here -- was reversed by the Supreme Court, State v. Williams, 192 N.J. 1 (2007).

While State v. Williams was pending undecided in the Supreme Court, the Court granted the State's petition for certification in the case at hand. State In The Interest of A.O., 189 N.J. 430 (2007). Once the Court decided State v. Williams, the State moved in this matter for summary disposition. On September 11, 2007, the Supreme Court entered an order granting the State's motion "to the end that the matter is summarily remanded to the Appellate Division for reconsideration on the merits in light of" the Court's decision in State v. Williams, and did not retain jurisdiction. 192 N.J. 474 (2007).

We asked for and received supplemental briefs from the parties regarding the impact of the Supreme Court's decision in State v. Williams to this case. After careful review, we conclude that this matter presents materially different factual circumstances than those upon which the Court's decision in State v. Williams turned, and, as a result, we adhere to our earlier decision reversing the adjudication of delinquency.

In our earlier opinion in this matter, we described the police encounter that led to the search of the juvenile:

[O]n January 8, 2005, Officers Anthony Farmer and Lenny Randolph of the Irvington Police Department were advised by their sergeant of a report made by an unknown confidential informant to the Prosecutor's Office. The informant advised that a person known as "Smiley" was one of the alleged instigators of a death threat against two Irvington police officers. The informant stated that "Smiley" was wearing a camouflage jumpsuit and a green knit hat and that he frequented the area around Springfield and Ellis Avenues in Irvington. The officers were subsequently sent to patrol the area to look for "Smiley."

At approximately 6:15 p.m. that evening, the officers were patrolling the intersection of Springfield and Ellis Avenues in an unmarked vehicle when they observed six individuals standing in front of a restaurant. Two of these individuals were dressed in camouflage jumpsuits, one of whom was also wearing a green knit hat. As the officers approached the individuals in camouflage for what they described as "investigative purposes," the individuals started to walk away, causing the officers to call out for them to stop, identifying themselves as police. When these persons did not stop, Officer Farmer again called out for the person in the camouflage suit and green knit hat, to stop. This person began to run up Springfield Avenue, while Officer Farmer pursued and repeatedly called out for him to stop. When Officer Farmer caught up with this individual, A.O., he spat out six vials with orange tops onto the ground in front of him. Officer Farmer suspected the items to be cocaine, and arrested A.O. After making the arrest, Officer Farmer questioned A.O. and learned that he is also known as "Smiley." He patted him down and testified that he found $690 in cash in A.O.'s pocket.

[Slip opinion at 3-4 (footnotes omitted).]

At the suppression hearing, Officer Farmer testified that in approaching and pursuing A.O., his intent was to conduct an interview to ascertain whether A.O. was known as "Smiley" and to determine "who [the] individual was [who made] the alleged death threats." We concluded then, and reiterate now, that this testimony left no doubt that Officer Farmer and his partner intended to conduct only a field inquiry.

In considering the significance of this fact, we first distinguished the matter from State v. Crawley, 187 N.J. 440, cert. denied sub nom., Crawley v. New Jersey, __ U.S. __, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006), where the surface facts bore some similarities to the matter at hand. There, the police were dispatched to an area to investigate the claim that a person had left a local tavern armed with a handgun. As the police arrived, they saw the defendant, who fit the description given, walking at a semi-brisk pace with his hands in his pockets. The officers asked the defendant to stop, at which point he ran away, throwing something away as he ran. Once caught, a search of the defendant uncovered no weapon, but the item discarded was a large bag containing smaller bags of cocaine. Defendant appealed his conviction for obstructing "a public servant from lawfully permitting an official function by means of flight," N.J.S.A. 2C:29-1(a), and the Court held that a person may be convicted of obstruction upon fleeing an investigatory stop despite a later finding that the police action was unconstitutional. State v. Crawley, supra, 187 N.J. at 460. The Court, however, did not determine whether, like here, a conviction based upon evidence seized after detaining the person for obstruction, in these circumstances, could be upheld. Id. at 449. Here, the trial judge dismissed the charge that A.O. engaged in conduct which, if committed by an adult, would have constituted resisting arrest. As a result, we previously concluded that we were not presented with the circumstances considered by the Court in Crawley.

Instead, we viewed the matter as being more similar to State v. Williams. There, we held that the police did not have sufficient information to permit an investigatory stop when they approached the defendant on the street. Accordingly, we concluded that the officers were limited to engaging in a field inquiry. When the defendant fled in the face of the officers' demand that he place his hands on his head so they could pat him down during this unlawful investigatory stop, the evidence seized during the search that followed, in our view, had to be suppressed. We reasoned that defendant was constitutionally permitted to depart because the police did not possess probable cause and because they had insufficient grounds to conduct an investigatory stop; accordingly, the police were left only with the right to conduct a field inquiry, which defendant had the right to ignore. Because the evidence seized resulted from the unlawful interference with defendant's right to depart from a field inquiry, we concluded that the evidence obtained as a result had to be suppressed. State v. Williams, supra, 381 N.J. Super. at 583-90.

In considering the matter, the Supreme Court described the issue in State v. Williams as "whether defendant who resisted and fled from a presumed unconstitutional stop and who was later arrested for obstruction is entitled to suppression of the handgun seized incident to his lawful arrest." 192 N.J. at 4. In reversing, the Court described the police encounter in the following way:

[D]efendant physically resisted the pat down by pushing [the officer] aside and taking flight, thereby endangering the police, himself, and the public. In obstructing the officers, defendant committed a criminal offense, which led to his arrest and to the discovery of the handgun incident to that lawful arrest. Obstructing the police constituted a break in the chain from the investigatory stop, which we will presume was unconstitutional.

[Id. at 10 (footnote omitted).]

These or similar circumstances did not occur here. A.O. did not physically resist once he was unlawfully seized by the police. There was no "break in the chain" of unlawful police conduct that would have permitted an arrest and a subsequent search incident to that arrest, which led to the discovery of the evidence used at trial.

Here, the officer was authorized only to conduct a field inquiry; he candidly testified at the suppression hearing that this was his sole intent. The officer's conduct, however, exceeded what a field inquiry may entail. As described in State v. Nishina, 175 N.J. 502, 510 (2003), a field inquiry consists of an officer's request of a citizen on the street whether he is "willing to answer some questions." See also State v. Piniero, 181 N.J. 13, 20 (2004). The citizen, upon receiving such a request from an officer, has the constitutional right to "decline to listen to the questions at all and may go on his way." State v. Maryland, 167 N.J. 471, 483 (2001) (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)). Here, the officer exceeded his limited authority in these circumstances by commanding A.O. to stop, even though the officer conceded that probable cause to arrest was absent and acknowledged that he possessed no reasonable articulable basis to conduct an investigatory stop. A.O. -- as was his constitutional right -- departed from this overzealous field inquiry. The police pursued and unlawfully seized A.O. Unlike the circumstances in State v. Williams, A.O. did not then obstruct or resist the officers, and he did not "break the chain" that linked the unlawful police conduct with a subsequent seizure of evidence.

For these reasons, the Court's holding in State v. Williams does not alter the outcome of this appeal because it was based on materially different facts. We continue to adhere to our earlier decision that A.O.'s suppression motion should have been granted. Anything less would eviscerate the citizen's constitutional right to depart from a field inquiry, and eliminate any future need for the police to possess either probable cause or a reasonable articulable suspicion to seize a citizen on the street.

As we previously held, in light of this disposition there is no need to reach the other arguments raised by A.O. in this appeal. The order denying A.O.'s suppression motion is reversed, the adjudication of delinquency is vacated, and the matter remanded for further proceedings, if necessary.

 
Reversed and remanded. We do not retain jurisdiction.

(continued)

(continued)

8

A-5400-04T4

RECORD IMPOUNDED

October 3, 2006

November 15, 2007