STATE OF NEW JERSEY v. JOHN SMITH, a/k/a TODD SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6131-06T56131-06T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JOHN SMITH, a/k/a TODD SMITH,

Defendant-Respondent.

________________________________________________________________

 

Submitted December 19, 2007- Decided

Before Judges Lisa and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-11-3854.

Joshua M. Ottenberg, Special Deputy Attorney General, Acting Camden County Prosecutor, attorney for appellant (Elizabeth L. Doyle, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

Philip H. Coyle, attorney for respondent.

PER CURIAM

The State appeals, by leave granted, from an order suppressing evidence. The order was based solely on the judge's determination that the stop by the police of the automobile defendant was driving was unlawful because the police did not have the basis to form a reasonable and articulable suspicion that criminal activity was afoot. As a result, the judge suppressed physical evidence seized from the automobile and from defendant's person and, under the fruit of the poisonous tree doctrine, other physical evidence and the statements and anticipated trial testimony of the co-defendant. The State argues that the judge misapplied the reasonable suspicion standard and that the automobile stop was lawful. We agree and reverse.

The parties agreed to a written stipulation of facts. Therefore, no testimony was taken in connection with the suppression motion, and the trial judge engaged in no factfinding. As a result, we are reviewing the same written stipulation of facts and owe no deference to any factfinding by the trial court. Thus, our review is de novo, and we owe no deference to the trial court's legal conclusions or interpretation of the legal consequences flowing from established facts. State v. Harris, 181 N.J. 391, 415 (2004); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

These are the facts relevant to the automobile stop. On March 4, 2006, at about 1:45 p.m., Officer Matthew DiVito of the Evesham Township Police Department was on routine patrol in a marked patrol car. He observed a car, occupied by two men, enter a shopping center parking lot. The driver was later identified as defendant, and the front seat passenger as the co-defendant, Robert Reid. Defendant parked the car in a side lot, away from the main strip of stores. DiVito noticed that the driver was not wearing a shirt or jacket, despite the temperature being in the high thirties or low forties. That circumstance piqued his interest, and he suspected that defendant may have parked in the side lot to avoid being observed by employees in the stores facing the front. DiVito also observed a large pile of items in the backseat of the car. He parked his patrol car in the parking lot and maintained visual contact.

Defendant got out of the car, put on a blue shirt, removed a black jacket from the back seat, pulled up the hood of the shirt, and put on the jacket. Reid got out of the car and removed a yellow plastic bag. The two men walked along the side of the shopping center and approached the main strip of stores. After walking past several stores, they entered Tunes CDs, a store that buys and sells used CDs. DiVito was aware that the Evesham Police Department had recovered stolen property from Tunes CDs on previous occasions.

Several minutes after entering the store, Reid left and walked back to the car. He made eye contact with DiVito, exhibited nervousness, and quickly looked away. He opened the trunk of the car and looked around without removing any items. He then opened the driver's side door and stood in the doorway without entering the car. He put on a brown jacket and returned to the store.

Reid then left the store and again returned to the vehicle. He made eye contact with DiVito a number of times, but each time quickly looked away. Reid removed the brown jacket and placed it in the car. He then returned to the store wearing a different long-sleeved black shirt.

A few minutes later, defendant left the store and returned to the car, where he sat in the driver's seat. Reid then left the store carrying "a large amount of unknown items in his hands." Defendant opened the passenger door for Reid, who got in. The two then drove out of the parking lot.

DiVito stopped the car as it left the parking lot. He also called in the information to central dispatch, as a result of which other officers responded to the scene. Defendant provided DiVito with a driver's license that had expired about four years earlier. DiVito was familiar with defendant because he had prior arrests for drug violations and because of burglary and theft investigations. DiVito questioned defendant and Reid regarding a number of topics, and they gave conflicting information. DiVito observed in plain view a pill bottle on the floor of the driver's side. It contained a variety of prescription pills, and the label reflected that the prescription was for a female. Defendant and Reid disclaimed knowledge of the identity of that female. The car was registered to Reid, who told DiVito he had just met defendant within the last couple of days, but could not remember where he met him.

DiVito learned that there were two outstanding warrants against defendant. For that reason, and because of the presence of the pills, he arrested both men. He then observed what appeared to be other items of contraband in the vehicle, which he seized. Further, with the purported consent of Reid, he searched the trunk and removed other items.

While this was transpiring, one of the other responding officers went into Tunes CDs and seized the CDs that defendant and Reid had just sold to the store.

Subsequent investigation tied defendant and Reid to a series of burglaries and thefts from multiple motor vehicles in a nearby community. Reid admitted to the police his role in these crimes. He entered into a plea agreement with the prosecutor, a condition of which required him to testify truthfully against defendant. In his plea allocution, Reid inculpated defendant in the burglaries and thefts. The grand jury returned a thirty-six count indictment for burglary and theft charges against defendant.

Defendant moved to suppress "all evidence seized as a result of, and all the poisonous fruits flowing from the unconstitutional stop" of the car. The trial judge, based upon the stipulated facts, agreed with defendant that the conduct observed by DiVito was innocent in nature and did not support a reasonable and articulable suspicion that criminal activity was afoot. The judge concluded:

The question in my mind is whether or not the officer had a[n] articulable and reasonable suspicion to stop the motor vehicle based on what he observed.

. . . State v. Kuhn[, 213 N.J. Super. 275 (App. Div. 1986)], sets forth numerous situations where they -- a[n] officer can stop a vehicle for further investigation, none of which apply here. There were no traffic violations. There was no indication that either the driver or passenger was drunk or had used illicit drugs. There was no report of crimes in the area. There was no tip from an informant. There was no behavior by these two -- by this defendant and his passenger which would lead the officer to have a reasonable suspicion that they had committed a crime.

The fact that you park a distance from a store -- I -- is absolutely nothing. If you want to get a little exercise you do that on a regular basis. As Mr. Coyle pointed out, the stores are open for business. There's nothing to show that for some reason people would know that this store bought illegal items and -- and if they -- whether -- whether they did or not you can't impute that knowledge to this defendant. The fact that somebody carries things into a store and the[n] carries them out for -- especially, at a store where -- where they're in the business of buying things from people -- used items from people. No reason to think that you wouldn't bring things into a store, have them buy some of them, carry the remainder out, or maybe have bought things yourself -- I don't think there was anything in the behavior of the defendant or his passenger which -- for which the officer should have had a reasonable suspicion.

So, I think, based right there is where we begin and end in this. I don't think we have to get any further. I don't see any reasonable suspicion -- basis for a reasonable suspicion in this case.

Therefore, the motion is granted.

In subsequent proceedings, the judge further ordered suppression of the CDs seized from the store, statements made by Reid at the scene of the arrest, and Reid's anticipated trial testimony against defendant, based solely on the fruit of the poisonous tree doctrine, see Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963), which bars the State from introducing into evidence the fruits of an unlawful search or seizure by the police. See State v. Badessa, 185 N.J. 303, 311 (2005). Because of the determination on the threshold issue of the legality of the stop, the judge did not address any other bases upon which any of the evidence might be subject to suppression. Of course, none of those issues are before us and we do not address them either.

The State argues that the trial judge failed to consider the totality of the circumstances in reaching the conclusion that DiVito lacked reasonable and articulable suspicion to stop the automobile. The State argues that, although many of the individual facts in isolation might appear innocent, the entire mosaic must be evaluated in making the reasonable suspicion determination, and, applying that approach, DiVito indeed possessed reasonable and articulable suspicion that criminal activity was afoot, thus justifying the stop. We agree with the State.

Both the United States and New Jersey Constitutions protect the individual from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, 7. Even when the "seizure" of an individual does not amount to a full-blown arrest, these constitutional provisions place important limits on police conduct. Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 903 (1968). Such limits apply equally to the "seizure" incident to the stopping of an individual's automobile, "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979).

"The basic premise in any warrantless search-and-seizure case is that such a seizure is per se illegal unless it falls within one of a very few specific and well-delineated exceptions." State v. Demeter, 124 N.J. 374, 379-80 (1991). An investigatory stop of an individual, extended since Terry to include the stopping of an automobile, provides an exception to the warrant requirement. United States v. Brignoni-Ponce, 422 U.S. 873, 879-80, 95 S. Ct. 2574, 2579-80, 45 L. Ed. 2d 607, 615-16 (1975); State v. Arthur, 149 N.J. 1, 9 (1997); State v. Todd, 355 N.J. Super. 132, 137 (App. Div. 2002).

This exception permits brief detentions "so long as the stop is supported by a reasonable suspicion that criminal activity is afoot." State v. Branch, 301 N.J. Super. 307, 318 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998). The reasonable suspicion standard requires "something less than the probable cause standard needed to support an arrest." State v. Thomas, 110 N.J. 673, 678 (1988). The State "must be able 'to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' the intrusion." Ibid. (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). The officer cannot simply point to his or her "inchoate and unparticularized suspicion or 'hunch.'" Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.

The reasonable and articulable suspicion determination requires consideration of the totality of the circumstances. State v. Pineiro, 181 N.J. 13, 22 (2004). Undertaking a fact-sensitive inquiry, the court must consider whether the "historical facts, viewed from the standpoint of an objectively reasonable police officer," amount to reasonable suspicion. Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661-62, 134 L. Ed. 2d 911, 919 (1996); Pineiro, supra, 181 N.J. at 22. Nevertheless, "[a]n officer's experience and knowledge are factors courts should consider in applying the totality of the circumstances test." Pineiro, supra, 181 N.J. at 22; State v. Stovall, 170 N.J. 346, 363 (2002) ("It is fundamental . . . that courts may consider the experience and knowledge of law enforcement officers.").

It is also clear that the "totality of the circumstances" inquiry does not require reviewing courts to ignore facts or actions susceptible to innocent explanation. Stovall, supra, 170 N.J. at 368 ("[A] group of innocent circumstances in the aggregate can support a finding of reasonable suspicion."). Of course, the reasonable police officer will assess the character of an individual's actions to determine whether they are "more consistent with innocence than guilt." Arthur, supra, 149 N.J. at 11. "[H]owever, simply because a defendant's actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt." Ibid.

Applying these principles to this investigatory stop, we conclude that the totality of the circumstances support a finding of reasonable suspicion. While many of the circumstances DiVito observed could certainly have an innocent explanation, taken in the aggregate his suspicion that defendant and Reid were engaged in criminal activity was objectively reasonable. Although this shopping center was not located in a high crime area, DiVito was aware that Tunes CDs had a history of dealing in stolen goods. Therefore, although entry of a customer into a store during business hours is generally innocent conduct, this known factor with respect to this store constituted something more. The fact that these individuals parked on the side lot, while of itself innocent, added to the suspicion that they did not want their vehicle to be seen, and thus subject to identification, by store personnel. See, e.g., State v. Butler, 278 N.J. Super. 93, 104 (App. Div. 1994) (concluding that the defendant's decision to park "unusually far from the registration office" was one factor to consider for reasonable suspicion). The changing of clothes between trips into the store by both individuals, apparently to disguise their appearance and to make it more difficult to identify them, was a further basis for suspicion. While it is generally innocent conduct to possess a pile of items in the back seat of one's automobile, in this context such a circumstance was also consistent with the possession of stolen goods. The exchange of nervous glances with a police officer, standing alone, will not suffice to support an investigatory stop. However, such furtive acts, when combined with other objective facts, are relevant in the overall evaluation. See State v. Costa, 327 N.J. Super. 22, 32 (App. Div. 1999) (citing State v. Lund, 119 N.J. 35, 47 (1990)).

Based upon the totality of the circumstances that he observed, together with his knowledge that Tunes CDs had a history of dealing in stolen goods, DiVito's suspicion that defendant and Reid were engaged in criminal activity was well grounded and objectively reasonable.

The trial judge's reliance on Kuhn and the list of circumstances absent in that case which were also absent in this case led to a misapplication of the overriding principles, requiring an analysis of the circumstances that are present.

Reversed and remanded for further proceedings.

The State has also made alternative arguments regarding the abandonment of property by defendant that was seized elsewhere (not from the automobile or defendant's person), and the attenuation doctrine, with respect to the anticipated trial testimony of the co-defendant. In light of our determination on the threshold issue of the legality of the automobile stop, we need not address those arguments.

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A-6131-06T5

February 22, 2008