STATE OF NEW JERSEY v. JEROME SHAW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1318-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEROME SHAW,

Defendant-Appellant.

________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADA KNOWLES,

Defendant-Appellant.

________________________________

January 3, 2014

 

Submitted November 13, 2013 - Decided

 

Before Judges Messano and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-12-2016.

 

Joseph E. Krakora, Public Defender, attorney for appellants (Kevin G. Byrnes, Designated Counsel, on the brief for appellant Jerome Shaw in A-0971-11; Jack L. Weinberg, Designated Counsel, on the brief for appellant Ada Knowles in A-1318-11).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the briefs).

PER CURIAM

Pursuant to separate plea agreements, Jerome Shaw, defendant in A-0971-11, and Ada Knowles, defendant in A-1318-11,1 were each convicted of third-degree conspiracy to bring stolen property into the State, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-7. The State's primary proofs against both defendants, the stolen items, were seized without a warrant outside of a grocery store in Highland Park, where police officers encountered defendants and two companions. As part of their respective plea agreements, Shaw and Knowles expressly preserved their rights, as automatically afforded to them pursuant to Rule 3:5-7(d), to appeal the trial court's denial of their jointly-argued motion to suppress the seized contraband.

For the reasons that follow, we reverse the trial court's June 9, 2010 suppression ruling, and remand these cases to afford both Shaw and Knowles the individual opportunity to withdraw their guilty pleas. However, we affirm the trial court's separate ruling that denied Knowles's application for admission into the pretrial intervention program ("PTI").

I.

A.

At about 3:30 p.m. on September 18, 2008, Lieutenant Gary Panichella was on patrol in his marked squad car in downtown Highland Park, near the intersection of Raritan and South Fifth Avenues. While stopped at the traffic light at that intersection, the officer saw four African-American individuals standing on the sidewalk, near a tan Nissan Altima with New York license plates. The Nissan was parked along the side of the street near the intersection on South Fifth Avenue, in front of a large parking lot for the nearby Stop N' Shop grocery store. The foursome consisted of one adult male, later identified as Shaw, and three adult females, later identified as Knowles, Kristal Middleton, and Quinetta Kersey.2

Lieutenant Panichella testified at the suppression hearing that the four people looked suspicious to him because one of the women (Knowles) was bent over a row of bushes lining the inside edge of the sidewalk. The lieutenant explained that Knowles had her hands within the bushes, and seemed to be "clearly looking for something." The three other individuals, meanwhile, were standing near the car. The officer explained that as he drove through the intersection past the group, all four of them turned to look at him. He decided not to stop right then, and instead drove past the group to the next intersection. Because he thought the four persons were "pretty suspicious," Panichella turned at that next intersection into a nearby parking lot. He waited there about half a minute, and then pulled a U-turn to return to the store.

As recounted by Lieutenant Panichella, when he neared the scene, the group of four persons had already begun to disperse. Two of the females, Middleton and Kersey, were already near the entrance of the grocery store and on their way inside. Knowles, meanwhile, was in the middle of the grocery store's parking lot, on her way to the grocery store as well. Shaw was nearest to the parked car, and was beginning to walk toward the grocery store entrance. Panichella testified that as Shaw saw him return, he walked back toward the Nissan in a rapid and hurried manner. Shaw rounded the car's rear side, approached the driver side door, and attempted to enter it.

Lieutenant Panichella then pulled his squad car up behind Shaw. As the squad car stopped, the lieutenant opened the door and instructed Shaw to step back from the Nissan and to walk back toward him. At that point, Shaw had his car keys in his hand, and was attempting to get inside.

Lieutenant Panichella got out of his squad car and walked up to Shaw. He told Shaw to step to the back of the car. According to the lieutenant, Shaw looked at the officer and asked, "Why?" Panichella responded that he wanted to speak with him. The lieutenant believed Shaw and his three companions to be "very suspicious," and the officer wanted to find out what they were up to and where they were going. At this point, Panichella did not consider Shaw to be free to leave.

The lieutenant proceeded to ask Shaw several questions. Shaw told the lieutenant that he and the three women were on their way from New York to a party in Philadelphia. The group had gotten off the New Jersey Turnpike at Exit 10, and had then stopped at the Stop N' Shop so that they could use the restroom.

Lieutenant Panichella asked Shaw for a driver's license, vehicle registration, and vehicle insurance. Shaw was unable to produce any of these documents. Instead, he pointed to Knowles who was, at this time, still standing in the parking lot and told the lieutenant that the Nissan belonged to her.

Lieutenant Panichella was skeptical about the information that Shaw provided. Knowing that Turnpike Exit 10 was about five miles from the grocery store, the lieutenant testified that he found it odd that this group would travel so far to use the restroom, when they would have passed by many other facilities with rest rooms that were much nearer to the Turnpike exit. The lieutenant also found it odd that the group would park their car on the street so far away from the grocery store's entrance, particularly when the parking lot had many available parking spaces that were much nearer.

The lieutenant testified that, at this point, Shaw seemed very nervous. Shaw was breathing heavily, repeatedly putting his hands in his pockets, and turning to look in the direction toward the grocery store where the women had walked. The lieutenant asked three or four times for Shaw to remove his hands from his pockets. When Shaw failed to do so, the lieutenant felt "a little concerned" for his safety. He therefore ordered Shaw to turn around.

While Shaw was turned around, Lieutenant Panichella patted him down. The officer felt two small, hard objects in Shaw's front right pocket. Believing the objects to perhaps be a knife or razor blade, the officer removed those items. They turned out to be two computer devices, a USB flash drive and a portable wireless modem. The record indicates that the two items were small, as one of them measured roughly 3" x 1" x 1/4" in size. Lieutenant Panichella also recovered from Shaw two debit cards, both bearing Shaw's name, plus $232 in cash.

By this point, the lieutenant felt as though "something was happening," so he called for backup assistance over the radio. However, Panichella conceded on cross-examination that he could not articulate what crime he believed was then underway. He acknowledged that there had not been a report of any murder, assault, theft, burglary, or shoplifting in which black males or females were suspects. In addition, a check of the Nissan's license plates did not reveal any problems.

A few minutes after Lieutenant Panichella's radio call for backup, several other Highland Park officers, including Sergeant Keith Kuchenbrod, began to arrive on the scene. Panichella communicated with Kuchenbrod over the radio that he believed there were three other women involved in this incident (i.e., Knowles, Middleton, and Kersey), and that two of the women had already gone into the grocery store. Panichella instructed Kuchenbrod to go find the two women in the store and "see what they were doing."

After receiving the lieutenant's message, Sergeant Kuchenbrod observed Knowles in the parking lot. He approached her to ask her some questions. Knowles identified herself and told the sergeant that she was Shaw's friend. She explained that they had come from New York, and that they had stopped at the Stop N' Shop to use the restrooms. Kuchenbrod considered Knowles as not being free to leave at this point. The sergeant then asked another patrolman, Officer Garrity, to stand by Knowles while he continued inside the grocery store to investigate Middleton and Kersey.

Sergeant Kuchenbrod agreed with Lieutenant Panichella's testimony that, up until this point of the chronology, the officers still did not have any indication of what crime might be occurring. Both officers conceded on cross-examination that they only had a "hunch" that something was wrong.

After detaining Knowles, Sergeant Kuchenbrod walked through the grocery store's entrance, where he readily saw down the first aisle of the store. He immediately saw Middleton and Kersey in that aisle, and made eye contact with them. Rather than approach them immediately, however, Kuchenbrod continued toward the cash registers so as not to arouse suspicion. The registers were located at the front of the grocery store near the exit. The two women stood off to the side of the entrance by about thirty feet.

When the sergeant got to the cash registers, he looked back toward the store entrance. At that point, he saw that one of the two women, later identified as Kersey, had just left the store through the entrance and was beginning to walk across the parking lot. Rather than walk toward where Shaw and Knowles were standing, however, Kersey instead began to walk in the opposite direction.

Sergeant Kuchenbrod immediately followed Kersey out the store and confronted her outside, about five feet from the front entrance. The sergeant asked Kersey if she knew Shaw. Kersey replied yes, and that she had been in the grocery store to use the restroom. When the sergeant asked why she was walking away from Shaw and Knowles, rather than going toward them, Kersey replied that she planned to do some shopping. At this point, Kuchenbrod asked a nearby officer, Officer O'Marrow, tostand by Kersey while he returned inside the store to look for the other woman, Middleton.

Inside, Sergeant Kuchenbrod walked toward the rear of the building where he observed Middleton, who stood facing away from him. He noticed that Middleton had a black bag slung over her shoulder. The sergeant approached her, asked whether she knew the three individuals outside (referring to Shaw, Knowles, and Kersey), and what she was doing. Middleton acknowledged that she knew them and that they had all stopped in the Stop N' Shop to use the restroom. At that point, the sergeant informed Middleton that the police officers were conducting an investigation, and he asked her to step outside the store with him.

After escorting her outside in front of the store, the sergeant directed Middleton to stand with Kersey and Officer O'Marrow. The sergeant then left to walk toward Lieutenant Panichella, who was still standing with Shaw near the Nissan. The sergeant told the lieutenant that he had stopped the two other women inside the store.

Several minutes later, following a brief conversation,Kuchenbrod and Panichella walked over toward Knowles who, at the time, was still guarded by Officer Garrity. Kuchenbrod left the group soon thereafter, and walked back toward the front of the store, where Middleton, Kersey, and Officer O'Marrow remained waiting.

As he walked up towards Officer O'Marrow and the two women, Sergeant Kuchenbrod noticed that Middleton no longer had the black bag slung over her shoulder. Instead, the sergeant observed that the bag was on the ground on the side of the store building, between a large column and a trash receptacle. According to Kuchenbrod, the bag was located "a good eight to ten feet away" from Middleton.

Sergeant Kuchenbrod pointed out the bag to Middleton and Kersey, and asked them whether they knew who the bag belonged to. According to the sergeant, the two women initially just looked at him and did not respond. He then raised the bag, and asked Middleton and Kersey individually if they owned the bag. Each woman denied being the owner.

Sergeant Kuchenbrod placed the bag on a ledge and began to unzip it. At that point, with the bag partially opened, Kersey stated that the bag was actually hers. Kersey then quickly corrected herself, however, and then said that she owned, not the bag, but some compact discs inside of it. Kersey then went to reach for the bag. Lieutenant Panichella, who was now at the scene, grabbed Kersey's hand and stopped her from taking the bag.

While the bag was partially unzipped, Sergeant Kuchenbrod observed a laptop computer inside and about ten to twelve store gift cards. Suspecting those contents to be contraband, the officers took all four individuals into custody. The bag was thereafter taken down to the station house, where it was inventoried. The inventory revealed that the bag contained a laptop, twenty-three Visa debit cards, and eight MasterCard gift cards. The police recovered from Knowles's purse, after her arrest, five MasterCards and twelve Visa debit cards. The police also discovered in the purses of the three women several receipts with recent dates from stores in the area.

 

B.

Subsequently, Shaw, Knowles, Middleton, and Kersey were all named in a five-count indictment which charged them with third-degree conspiracy, third-degree theft, fourth-degree theft or unlawful receipt of credit cards, third-degree credit card fraud, and third-degree fraudulent use of credit cards. While the indictment was pending, Knowles applied for admission into PTI, which the prosecutor rejected. The trial court likewise rejected her PTI application.

Meanwhile, the four defendants moved to suppress the fruits of the warrantless police search and seizure. The trial court conducted a multi-day suppression hearing, during which Lieutenant Panichella and Sergeant Kuchenbrod testified for the State. Defendants did not present any witnesses.

Upon considering the proofs, the trial court denied the suppression motion, concluding that the items seized from Shaw and from the shoulder bag were lawfully obtained without a warrant. With respect to Lieutenant Panichella's encounter with Shaw, the court found that his initial interaction was a permissible field inquiry, which had "fluidly" escalated into an investigative stop and frisk authorized by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), as Shaw attempted to get into the Nissan. In this regard, the court found that the observed behavior of the four individuals created a "reasonable and articulable suspicion . . . that criminal activity was afoot." As the court reasoned, once the lieutenant stopped Shaw on this basis, he was authorized to pat Shaw down for the officer's own safety, thereby recovering the computer devices Shaw was carrying.

The court further ruled that no warrant was needed for the police to seize and unzip the shoulder bag because the bag had been, in the court's view, abandoned. The court found it significant that the sergeant had seen Middleton carrying the bag inside the store, that no one else had been seen carrying the bag, and that the bag thereafter was observed outside on the ground by a trash receptacle. The court also found significant that Middleton and Kersey were the only two people "in close physical proximity" to the discarded bag, and that both of them, at least initially, had "disclaimed ownership." Having deemed the bag abandoned, the court concluded that the police did not need a warrant to open it, seize it, and remove its contents in the station house inventory.

C.

Following the denial of their suppression motion, Shaw and Knowles entered into plea agreements. As we have already noted, the agreements preserved their rights to appeal the trial court's suppression ruling. SeeR.3:5-7(d). Knowles also expressly preserved her right to appeal the denial of her entry into PTI. SeeR.3:28(g).

On July 22, 2011, the trial court sentenced Knowles to a non-custodial probationary term of four years, with thirty days of credit for time already served, pursuant to the terms of the plea agreement. The court further imposed upon Knowles a condition that she remain offense-free, in addition to all appropriate fines and penalties.

A few weeks later, on August 5, 2011, the court sentenced Shaw to a five-year non-custodial probationary term, conditioned upon full-time employment. In accordance with his plea agreement, all other counts of the indictment against Shaw were dismissed. He received 150 days of jail credit, and appropriate fines and penalties were imposed.

D.

On appeal, Shaw raises in his brief the following arguments:

POINT I

 

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE SEIZURE OF THE DEFENDANT WITHOUT REASONABLE SUSPICION.

 

POINT II

 

IF THE ORDER BY THE POLICE TO THE DEFENDANT NOT TO ENTER HIS VEHICLE, PREVENTING THE DEFENDANT FROM DRIVING AWAY, IS DEEMED A MERE "FIELD INQUIRY", IT WAS MOTIVATED BY RACE AND VIOLATES THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR 1 OF THE NEW JERSEY CONSTITUTION.

 

POINT III

 

THE WARRANTLESS SEARCH OF THE BLACK COMPUTER BAG CANNOT BE JUSTIFIED ON THE BASIS THAT IT WAS "ABANDONED PROPERTY".

 

POINT IV

 

THE WARRANTLESS SEARCH AND SEIZURE OF THE BLACK COMPUTER BAG WAS NOT SUPPORTED BY PROBABLE CAUSE OR EXIGENT CIRCUMSTANCES.

 

A. The police lacked probable cause to search the black computer bag.

 

B. There were no exigent circumstances that supported a warrantless search.

Knowles raises in her own brief the following similar points, plus a separate argument contesting her exclusion from the PTI program:

POINT I

 

THE MOTION COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS. LT. PANICHELLA DID NOT HAVE AN OBJECTIVELY REASONABLE AND ARTICULABLE SUSPICION TO JUSTIFY THE INVESTIGATORY STOP OF THE DEFENDANT OR HER CO-DEFENDANTS. ALL ITEMS SEIZED ARE THE FRUITS OF THE POISONOUS TREE.

 

A. The [b]asis for the [i]nitial [i]nvestigation was without justification.

 

B. The stop of co-defendant Shaw immediately became an investigatory stop without a reasonable and articulable suspicion.

 

C. The officers conducted investigatory stops of the defendant and the two female co-defendants without a reasonable and articulable suspicion to justify their detentions.

 

D. The investigatory stop of co-defendant Kersey was equally without a reasonable and articulable suspicion.

 

E. Co-defendant Middleton did not abandon the computer bag; she discarded it in response to her illegal detention.

 

F. Lt. Panichella's decision to conduct this investigation was race-based.

 

POINT II

 

THE TRIAL COURT ERRED WHEN IT FAILED TO FIND THAT THE PROSECUTOR'S DECISION TO DENY THE DEFENDANT ADMISSION INTO THE PRE-TRIAL INTERVENTION PROGRAM CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION.

 

II.

Under the Fourth Amendment of the United States Constitution and under Article 1, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). Mindful of these principles, we examine the warrantless searches and seizures in this case, specifically as to (1) the items taken from Shaw; and (2) the confiscated black shoulder bag and its contents.

A.

We first evaluate Lieutenant Panichella's encounter with Shaw.

In the course of upholding their duties to maintain public safety and enforce the laws, police officers inextricably engage in interactions with the public. See State v. Tucker, 136 N.J. 158, 167 (1994) (citing State v. Sheffield, 62 N.J. 441, 446, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973)). The New Jersey Supreme Court has essentially recognized three separate categories of encounters between police officers and the public: field inquiries, investigative detentions (or "Terry stops"), and custodial arrests. State v. Nishina, 175 N.J. 502, 510-12 (2003); State v. Rodriguez, 172 N.J. 117, 126-27 (2002); State v. Stovall, 170 N.J. 346, 356 (2002).

Principally at issue here is whether Shaw's initial encounter with police fell within the ambit of a field inquiry or, alternatively, an investigative "Terry" detention. These two categories differ in the degree of requisite suspicion that an officer must have in anticipation of the stop or investigation. Nishina, supra, 175 N.J. at 510-12.

A field inquiry "is a limited form of police investigation that, except for impermissible reasons such as race, may be conducted 'without grounds for suspicion.'" Id. at 510 (quoting Rodriguez, supra, 172 N.J. at 126 (internal quotation marks omitted)). Generally, a police officer may initiate 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.'" Rodriguez, supra, 172 N.J. at 126 (quoting State v. Davis, 104 N.J. 490, 497 (1986) (citations omitted)). A field inquiry is not considered a seizure for constitutional purposes, "so long as the officer does not deny the individual the right to move." Sheffield, supra, 62 N.J. at 447.

However, a mere field inquiry rises to the level of an investigative (i.e., Terry) stop when an objectively reasonable person feels that his or her right to move has been restricted. Davis, supra, 104 N.J. at 498 (citing Terry, supra, 392 U.S. at 16, 88 S. Ct. at 1877, 20 L. Ed. 2d at 903); see also INS v. Delgado, 466 U.S. 210, 215, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247, 255 (1984) ("[A]n initially consensual encounter between a police officer and a citizen can be transformed into a seizure . . . 'if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" (quoting United States v. Mendenhall, 466 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980))). In the context of an investigative stop, an officer's interaction with the citizen is considered more intrusive than a field inquiry. Hence, a more stringent analysis pertains when evaluating that form of police conduct. State v. Maryland, 167 N.J. 471, 486-87 (2001).

It is well established that a police officer does not need a warrant to conduct a Terry stop if it is based on "specific and articulable facts which, taken together with rational inferences from those facts," give rise to a reasonable suspicion of criminal activity. Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. The "[r]easonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." Stovall, supra, 170 N.J. at 356 (citing State v. Citarella, 154 N.J. 272, 279 (1998); State v. Arthur, 149 N.J. 1, 8 (1997)). In elaborating upon the specificity and particularity of an officer's suspicion, our State Supreme Court has stated that:

"articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

 

[Davis, supra, 104 N.J. at 504.]

 

The seizure of a person occurs in a police encounter if the facts objectively indicate that "'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.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). In applying this objective test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects.'" Id. at 165 (citing N.J. Const. art. I, 7).

Defendants contend here that Lieutenant Panichella impermissibly conducted a Terry stop of Shaw because the officer did not have a reasonable and articulable basis for suspicion that criminal activity was afoot in the events leading up to that stop. Consequently, they argue that the trial court erred in failing to suppress the evidence that the officers seized from his person and from the black shoulder bag, contending that the latter evidence amounts to inadmissible "fruits of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963); see also State v. Johnson, 118 N.J. 639, 653 (1990).

The State argues that when Lieutenant Panichella approached Shaw, his action was only a "field inquiry" because "Shaw voluntarily refrained from getting into his car to answer the police officer's question." According to the State, the lieutenant "merely 'motioned to him to come to the back of the car' and 'asked what was going on.' A reasonable person in this situation would not have felt detained." We disagree.

The record here clearly and objectively shows that once Lieutenant Panichella told Shaw to stop and step back toward the vehicle, Shaw was no longer able to leave. Indeed, what Shaw was trying to do at that moment when Lieutenant Panichella arrived on the scene was leave. The lieutenant acknowledged that Shaw had car keys in his hands and was trying to enter the vehicle. The lieutenant ordered Shaw to stop, to step back from the vehicle, and to walk toward the back of the parked car, toward the officer. Hence, a Terry stop had occurred. The lieutenant should have given Shaw the chance to respond to preliminary questioning or at least to make a decision about whether to respond beforeconfining Shaw's freedom of movement. Indeed, the trial court specifically found that Shaw was not free to leave at this point. The court determined that at "the moment [Lieutenant Panichella] first approached Mr. Shaw, to him, he had detained him." Given the officer's instructions to stop, Shaw would reasonably have felt that his right to move had been restricted. Hence, Lieutenant Panichella's interaction was, at (or virtually at) its inception, a Terry stop, not merely a field inquiry.

The record further establishes that Lieutenant Panichella did not have a reasonable and articulable basis for suspicion to conduct a Terry stop of Shaw. His limited observations leading up to that moment essentially consisted of Knowles seemingly hunting for something in the nearby bushes, the four people looking at the officer as he drove past them, and then Shaw walking quickly back to the parked car as the officer drove back to the scene in his squad car.

On the basis of these circumstances, Lieutenant Panichella could not reasonably believe that a crime was underway, much less articulate what crime it might possibly have been. On cross-examination, the lieutenant conceded that the Nissan had been legally parked on the street, that this was not a high-crime area, that there were no reports of active crimes at the time, and that he was not aware of any warrants for these individuals. The lieutenant also acknowledged that he did not know what was going on, but only that he felt a "hunch" that something was happening. Given these meager circumstances, the investigative detention was unconstitutional under Terry.

Our finding of an improper Terry stop in this setting is consistent with other cases. For example, in State v. Contreras, 326 N.J. Super. 528 (App. Div. 1999), New Jersey Transit police officers observed the defendants there in New York Penn Station appearing "agitated at the fact that police officers walked by. [One of the defendants] kept looking at them." Id. at 533. The defendants "began to talk, whisper, kind of back and forth and turn[] around and look[] at the cops." Ibid. Officers followed the defendants aboard a train, and they observed that once the defendants were seated, the defendants appeared "particularly relieved." Ibid. The officers then approached them on the train, and asked them to disembark. Id. at 534. In the course of the interaction, the officers eventually searched their persons and recovered crack cocaine and marijuana. Id. at 534-37. The trial court granted the defendants' suppression motion. Id. at 537. We affirmed, explaining that on the facts adduced at the motion hearing, they were "not sufficient to create a reasonable suspicion." Id. at 541.

Similarly, in State ex rel. J.G., 320 N.J. Super. 21 (App. Div. 1999), we held that the police officer in that case lacked the necessary reasonable and articulable bases for suspicion to conduct an investigative detention. The State could point merely to the fact that the defendant had made "prolonged eye contact" with the police officers, and then acted in a furtive manner following their detection. Id. at 24. The officers had observed that the defendant inadvertently bumped into his cohort after seeing the officer. Ibid. In addition, moments later when both individuals boarded an escalator, the officer followed them and "got up as close as [he] possibly could without them detecting [his] presence." Ibid. When the defendant turned around, he "looked surprised when he saw [the officer] on the step behind him." Id. at 25. That defendant then proceeded to switch places with his cohort, such that his cohort now stood between him and the officer. Ibid.

On the basis of these observations in J.G., the police officer stopped the defendant, conducted a Terry stop, and eventually seized drug paraphernalia from the defendant's person. Id. at 26. We explained that "[a]t most, [the officer] observed a young man who was [traveling] with [his cohort] back from New York who became nervous in the officer's presence; no narcotics transaction or objectively suspicious movement was ever observed." Id. at 33. Accordingly, we ruled in J.G. that the police officer conducted an unconstitutional Terry stop because he lacked the requisite reasonable and articulable bases for suspicion of illicit activity. Id. at 32-34.

Moreover, the present case does not involve some of the ingredients that justified a Terry stop in other cases such as, for example, an observation of traffic violations; narcotics, packages, money, or other objects being exchanged; reports of recent nearby crimes; or an informant's tips that a crime or drug transaction was about to occur. SeeState v. Kuhn, 213 N.J. Super.275, 280-81 (App. Div. 1986) (citations omitted); see alsoState v. Patterson, 270 N.J. Super.550, 561 (Law Div. 1993), aff'd o.b., 270 N.J. Super.562 (App. Div. 1994) (finding that the defendants' appearances alone, without some conduct evidencing criminal activity, was insufficient to justify a Terrystop). Lieutenant Panichella cited no such factors to justify his investigative detention of Shaw.

We therefore hold that the trial court erred in ruling that Lieutenant Panichella's encounter with Shaw was merely a permissible field inquiry that had later escalated into an adequately-founded investigative detention. The record instead reflects that this was essentially a Terry stop from the outset. The stop was impermissible because the lieutenant lacked the requisite reasonable and articulable level of suspicion to conduct it. We therefore reverse the suppression ruling as to the evidence the officer recovered from Shaw without a warrant.

B.3

It is next necessary to consider the warrantless seizure of the black shoulder bag and the ensuing search of its contents. The trial court adopted the State's argument that defendants have no standing to challenge the constitutionality of this search and seizure of the bag, based upon a finding that it had been abandoned. However, given the particular facts presented here, the court's finding of abandonment is inconsistent with the governing case law.

For decades, the case law of our State has conferred automatic standing upon a criminal defendant to challenge a police search and seizure when that defendant has either a "possessory, proprietary, or participatory" interest in the item seized. State v. Johnson, 193 N.J. 528, 543 (2008); see also Alston, supra, 88 N.J. at 228. In those particular settings where the defendant seeks to exclude evidence offered by the State in his or her trial, the defendant's standing to assert his or her rights under Article I, Paragraph 7 of the New Jersey Constitution is "beyond dispute." State v. Hinton, ___ N.J. ___, ___ (2013) (slip op. at 30).4

Johnson and the Supreme Court's later opinion in State v. Carvajal, 202 N.J. 214 (2010), are the controlling decisions that must guide the analysis of the abandonment issue. In Johnson, the Court set forth a three-part test for abandonment. Specifically, as the Court subsequently expressed the test in Carvajal, "property is abandoned if: (1) a person has either actual or constructive control or dominion over property; (2) he knowingly and voluntarily relinquishes any possessory or ownership interest in the property; and (3) there are no other apparent or known owners of the property." Carvajal, supra, 202 N.J. at 225 (citing Johnson, supra, 193 N.J. at 549).

On the facts in Johnson, the Court ruled that police officers acted impermissibly when, in arriving at a residence to investigate a domestic violence matter, they seized a duffel bag that the defendant was holding and searched its contents to reveal a loaded weapon. Id. at 549-52. There were four other individuals in the home at that time. Id. at 534-38. The Court held that the officers' actions were unconstitutional, notwithstanding the fact that the defendant had orally disclaimed ownership of the duffel bag he was holding. Id. at 549-52. The Court found significant the possessory, proprietary, and participatory interests that the other individuals in the residence may have had with respect to the seized bag. Id. at 550. It explained that even though the defendant and another person had both denied ownership of the duffel bag, those statements nevertheless

did not forfeit the rights of the other occupants of the apartment or give the police a license to rummage through other peoples' effects. The other household members too had a right not to have their "effects" subjected to an unreasonable search.

 

[Ibid. (citing Alston, supra, 88 N.J. at 226-27).]

 

Accordingly, the Court agreed with this court's determination that the defendant had standing to challenge the officers' search of the duffel bag. Id. at 551-52.

The Supreme Court again applied this three-part test of abandonment in Carvajal, supra, 202 N.J. at 214. That case involved an unclaimed duffel bag that had been left on a bus. Id. at 218-19. The defendant had been a passenger on the bus, traveling from Miami to New York, without any checked luggage. Ibid. When the defendant got off the bus at a stop in Union City, he was met by several police officers, who had received a tip from a reliable informant that a drug courier was carrying narcotics in his luggage. Ibid. The defendant matched the description that the informant had given. Id. at 219. He told the officers that he was not carrying luggage, but instead planned to buy a change of clothes in New York. Ibid. A detective boarded the bus, introduced himself to the fifteen to twenty remaining passengers, and asked each of them to verify their luggage by checking their claim tickets. Id. at 220. None of those other passengers claimed ownership of the duffel bag. Ibid. In addition, the defendant denied the officer's non-coercive question asking whether the bag belonged to him. Ibid. At that point, the police seized the unclaimed bag and found heroin inside of it, along with documents bearing the defendant's name and bank account number. Ibid.

The Court distinguished the circumstances in Carvajal from those in Johnson in several key respects. First, the defendant in Carvajal himself denied any ownership interest in the bag. From the observations of the officers, the defendant had "no apparent control or ownership interest" in the bag. Id. at 226. Second, the defendant "voluntarily and knowingly relinquished an interest in it." Ibid. Third, and most significantly for our present analysis, the police spoke with the other bus passengers, none of whom claimed any interest in the bag. Id. at 229. Hence, "the police did not search the bag until all apparent owners had disclaimed any possessory interest in the property." Id. at 229-30.

The present case is factually more akin to Johnson than to Carvajal. The record shows that Sergeant Kuchenbrod inquired only of Middleton and Kersey as to whether the shoulder bag was theirs. The sergeant did not pose the same inquiry to either Shaw or Knowles, even though he had been previously informed by Kersey that the four individuals had been traveling together as a group, and even though Lieutenant Panichella had similarly told the sergeant that the four individuals were considered to be taking part in some form of common activity. Neither Shaw nor Knowles disclaimed a possessory, proprietary, or participatory interest in the contents of the bag. Indeed, when the bag was opened, it contained compact discs apparently owned by Kersey, along with the various stolen items.

Up until the point that the shoulder bag was spotted outside of the grocery store, Sergeant Kuchenbrod had seen only Middleton carrying it. Nonetheless, those observations did not reasonably rule out the possibility that other members of the group owned property inside of the bag.5

Based upon these distinctive circumstances with an observed nexus between the four individuals, the police should not have confined their ownership inquiries to only Middleton and Kersey. Their failure to also question Shaw and Knowles about the bag before opening it undermines the State's reliance upon a theory of abandonment. Consequently, the warrantless seizure of the bag, and the ensuing inventory search of its contents at the station house, was unconstitutional.

This conclusion is not meant to suggest that the police have an absolute duty to question every person on the premises where an apparently unclaimed or discarded item has been spotted. The abandonment cases are, as often is true in search and seizure jurisprudence, highly fact-sensitive.6 Here, the specific context required further inquiry of at least Shaw and Knowles before the sergeant seized and unzipped the bag.7

C.

Because the search and seizure of both the items possessed by Shaw, as well as the shoulder bag and its contents, were unconstitutional, Shaw and Knowles are both entitled under their respective plea agreements to have their cases remanded for an opportunity to withdraw their guilty pleas. Pending the remand, defendants' convictions shall remain intact, subject to further proceedings in the trial court.

III.

We need not comment at length on Knowles's separate point arguing that she was unfairly denied admission into the PTI program. Her argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). The record indicates that Knowles had fourteen prior convictions and numerous other encounters with the law. The trial judge had more than an ample basis to conclude that Knowles had failed to prove that the prosecutor's rejection of her PTI application was not a "patent and gross" abuse of discretion. State v. Nwobu, 139 N.J. 236, 250 (1995); State v. Bender, 80 N.J. 84, 93 (1979).

We therefore affirm the trial court's PTI ruling.

IV.

Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.

 

 

________________________________________________________

MESSANO, P.J.A.D., concurring.

 

For the reasons compellingly presented by my colleague in Part II A, ante at 17-26, I agree that all evidence recovered from defendant Shaw must be suppressed. I likewise agree with my colleague's conclusion that the motion judge erred in determining that the black shoulder bag was abandoned. Ante at 26. Because no exception to the warrant requirement applied, I agree that the contents of the shoulder bag must be suppressed. Ante at 32. I therefore concur in the result.

I write separately, however, to express my respectful disagreement with my colleague's interpretation of the Court's decision in Johnson, supra, his application of that decision to the facts presented here, and his conclusion that the police officers' "failure to also question Shaw and Knowles about the bag before opening it undermines the State's reliance upon a theory of abandonment." Ante at 31. In my opinion, the officers were under no obligation to make such inquiry of Shaw and Knowles, and their failure to do so cannot be part of the calculus used to determine whether the shoulder bag was "abandoned" for purposes of the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution.

As my colleague noted, analysis of every warrantless search and seizure case is indeed "highly fact-sensitive." Ibid.; see, e.g., State v. Minitee, 210 N.J. 307, 320 (2012) (noting application of "the automobile exception" in "myriad situations" that are "inherently unpredictable"); State v. Mann, 203 N.J. 328, 338 (2010) (the determination of whether reasonable and articulable suspicion supported an investigatory stop is "fact-sensitive" and requires examination of the totality of the circumstances) (citations omitted); State v. O'Neal, 190 N.J. 601, 614 (2007) (whether search incident to arrest was premised upon probable cause required an objective view of the totality of the circumstances). Whether property is "abandoned" requires an analysis that is likewise sensitive to the facts of each case. See Carvajal, supra, 202 N.J. at 227 ("In determining whether a defendant voluntarily and knowingly relinquished a possessory or ownership interest in property in response to police questioning, a court should apply a totality-of-the-circumstances analysis.").

I highlight only those facts "relevant" to the Court's decision in Johnson and to which the decision was firmly tethered.

In the early morning of December 8, 2001, Holloway [Jr.] threatened his girlfriend with a gun. Just hours afterwards, the police entered Holloway Sr.'s home with his permission and took his son into custody on an arrest warrant issued as a result of the earlier domestic violence incident. In conducting a search incident to the arrest, the police did not find the gun.

 

In the apartment at the time of Holloway's arrest were [the] defendant, Mrs. Holloway, and a young child. Sergeant McCormick told [the] defendant, who was clad only in boxer shorts and a t-shirt, that he would have to leave the premises for a short while. Defendant got dressed and then put a cardboard box about the size of a cigar box in a duffel bag. As defendant began to walk out of the apartment with the duffel bag, Sergeant McCormick naturally became concerned that the gun might be leaving with him. He asked defendant whether the duffel bag was his. Defendant equivocated; at first he said yes, and almost immediately afterwards he said no, looking at the bag as though he were surprised it was in his hands. Sergeant McCormick then asked Holloway Sr. whether he knew who owned the bag. He said he did not. Sergeant McCormick next grabbed the duffel bag from defendant's hand and opened both the bag and the box, discovering a .45 caliber gun.

 

[Johnson, supra, 193 N.J. at 549-50.]

Earlier in the opinion, Justice Albin had squarely posed the issue confronting the Court: "[W]hether [the] defendant's disclaimer of ownership of the duffel bag, under the compulsion of police questioning, stripped him of standing to challenge the constitutionality of the search of that bag in Holloway Sr.'s home." Id. at 540.

Since "[c]ourts generally recognize that the abandonment of property strips a person of standing to challenge a search[,]" the Court concluded that "a defendant will not have standing to object to the search or seizure of abandoned property." Id. at 547, 549. Recognizing this as "a narrow exception to our automatic standing rule," the Court stated the appropriate test for abandonment:

For the purposes of standing, property is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property. That approach provides the strongest guarantee that the police will not unconstitutionally search or seize property, which has multiple apparent owners, merely because one person has disclaimed a possessory or ownership interest in that property.

 

[Id. at 549 (emphasis added).]

Like my colleague, I agree that this test applies in this case. Ante at 27.

The Johnson Court concluded that the defendant had not abandoned the duffel bag, noting first it "was located in a home that was occupied by at least five people. Holloway, Mrs. Holloway, and the young child might have had a property interest in the bag." Id. at 550.8 Additionally, the Court concluded that the defendant should not be "stripped of standing because he disclaimed ownership of the duffel bag in response to police questioning." Id. at 551.

Sandwiched between those two strains of analysis was the Court's assertion that "the duffel bag in the Holloway home was not truly abandoned because the police might still have easily determined its owner." Id. at 550. I profess being perplexed by that statement. Assuming the defendant was the owner of the duffel bag, his denial was not determinative of the standing issue and unlikely to allow police to "easily determine[]" the owner of the bag. Ibid. Questioning the other occupants of the apartment likely would have yielded answers similar to those from Holloway Sr., i.e., a denial of ownership.9

My colleague, however, has construed this statement by the Court to mean that, in certain circumstances like those presented in this case, the State cannot demonstrate abandonment of property unless police have questioned everyone who exhibits some relationship, not necessarily with the property at issue, but rather with any individual who may have had the property in their actual possession, as Middleton did in this case. This approach disconnects Johnson's abandonment test from its facts, and presents untenable challenges for law enforcement officers faced with a developing situation on the street and in a public shopping area, as they were in this case.

In short, I believe the critical facts in Johnson were that the police-citizen contact took place in a private apartment, the property at issue was actually in the possession of the defendant when questioned by the police and its very nature -- a duffel bag -- did not foreclose "apparent" ownership by others in the apartment. Assessing "[a]ll of the relevant factors taken together[,]" it is understandable that the Court concluded the duffel bag was not "abandoned property." Id. at 551.

I also recognize that in Carvajal, supra, the circumstances were significantly different, most notably, that the defendant was not in a private home, but rather on a public bus. 202 N.J. at 218. When questioned by police, he and all the other passengers denied ownership of an unclaimed duffel bag. Ibid. The Court applied Johnson's abandonment test to these facts and affirmed the lower courts' conclusions that the State had proven the bag was abandoned. Id. at 218, 225.

Undoubtedly, the Carvajal Court concluded that questioning the other passengers on the bus before looking in the duffel bag was an important factor distinguishing the case from Johnson and supporting the conclusion that the bag was abandoned. Id. at 229-30. But that is so because all the passengers on the bus were potentially "apparent owners" of the bag. Id. at 230.

I believe it is notable, however, that the Court drew a distinction between the facts presented in Carvajal and those presented in Johnson in another respect:

Unlike in Johnson, defendant in this case was not holding the bag. From the objective viewpoint of the police, [the] defendant, arguably, had no apparent control or ownership interest in the unclaimed duffel bag on the bus. The bag did not have an exterior tag indicating that [the] defendant had a possessory interest. Moreover, defendant did not have a claim ticket for the bag and, in response to police questioning, he denied traveling with any luggage or even having a change of clothing. We need not decide this case on the issue of whether defendant had apparent control or ownership of the bag because, here, the remaining Johnson factors are satisfied.

 

[Id. at 226.]

 

Although the Court did not reach the issue, I believe its attention to this distinction has relevance to this case. I am hard-pressed to understand why police should be required to question someone, in this case Knowles and Shaw, who "[f]rom the objective viewpoint of the police . . . arguably[] had no apparent control or ownership interest" in the shoulder bag, and who were not its "apparent owners." Id. at 226, 230. Whether the police asked defendant Shaw if he owned the black shoulder bag carried at all times by a female companion certainly seems an unlikely predicate upon which the issue of abandonment should turn.

Instead, I conclude that based upon the totality of the circumstances, the State failed to prove by a preponderance of the evidence that the shoulder bag was "abandoned." See id. at 223-24 (stating the appropriate burden of proof to be borne by the State). Kuchenbrod testified that on two occasions while he was in the supermarket, he observed Middleton with the black shoulder bag. On the first occasion, she was with Kersey; on the second, Middleton was outside the entrance to the store where Kersey was being detained by another officer. In the brief time that Kuchenbrod took to speak to Panichella and return to the front of the store, he observed Middleton no longer had the bag on her shoulder. Instead, the bag was on the ground between a large "column" and a garbage can, some eight to ten feet from Middleton.

When Kuchenbrod asked Middleton and Kersey if the bag was theirs, both initially denied that it was. However, as Kuchenbrod testified, when he "began to unzip it," Kersey said "that's my bag but then stopped and said those are my CD's in the bag. And she . . . reach[ed] for the bag." Panichella grabbed her hand and said "no." By this time, Kuchenbrod stated the bag was "starting to open," and he made observations of a laptop computer and ten to twelve store gift cards.

Kersey's response was not consistent with an "express and unequivocal relinquishment of ownership." Carvajal, supra, 202 N.J. at 228. And, in my mind, these proofs failed to demonstrate that either Kersey or Middleton "knowingly and voluntarily relinquishe[d] any possessory or ownership interest" in the shoulder bag. Id. at 223 (quoting Johnson, supra, 193 N.J. at 549). Since that evidence was lacking, the State failed to carry its burden of proof, and, therefore, it was error for the motion judge to conclude the shoulder bag was "abandoned."

I therefore concur in the result.

1 We have consolidated these related appeals solely for purposes of this opinion.

2 Neither Middleton nor Kersey is a party to this appeal.

3 Although, for the reasons expressed in his separate concurrence, Judge Messano does not agree with the foregoing abandonment analysis in Part II(B), he concurs for different reasons that the black bag and its contents should have been suppressed.

4 Nothing in the Court's majority opinion in Hinton changes the automatic standards applicable to the items of personal property at issue here. Hinton involved a search of an apartment in which the tenant's lease had expired, and a warrant of removal had been issued. State v. Hinton, supra, slip op. at 2. The majority concluded that because the tenant no longer had a legal right to occupy the apartment, the defendant, who was the tenant's son, likewise had no right to challenge a police search of the unit because he could have no reasonable expectation of privacy in the premises. Id. at 3. Unlike in Hinton, the case before us does not involve a leasehold. Moreover, there is no contention that Middleton lacked a legal right to possess the shoulder bag before it was discarded.

5 The trial court's oral opinion also appears to be mistaken in finding that, after the bag was already unzipped, Sergeant Kuchenbrod asked both Middleton and Kersey a second time who the bag belonged to. The transcript of the sergeant's testimony instead reflects that his questioning of the two women occurred before the bag was unzipped.

6 For example, the shoulder bag in this case was not described in the record to be of such a personal nature, or as an obvious matching fashion accessory, to be clearly Middleton's. Also, because the four people were traveling together, it was more likely that one or more of them might have had personal items in the bag, than in other circumstances. In fact, this turned out to be the case as the record reflects that Kersey claimed ownership of several of the compact discs police officers subsequently found in the black shoulder bag that Middleton was carrying.

7 The conclusion that the bag was not clearly abandoned, and thus should not have been seized and unzipped without a warrant, makes it unnecessary to reach the State's argument that the plain-view exception justified the confiscation of the bag once it had been partially opened to reveal the gift cards and laptop. There is also no need to reach defendants' contention of an improper racial motivation for the police actions except to note that the motion judge, as fact finder, identified no such animus.

8 The Court also observed that Holloway was criminally charged with possession of the same gun. Id. at 550.

9 Moreover, if the duffel bag was another occupant's property, police inquiries posed to that person presented the same "Catch-22" that the Court recognized the defendant faced, i.e., "either he could admit that the duffel bag was his and incriminate himself, in which case his oral admission and the gun, if lawfully obtained pursuant to a search warrant, would be used against him at trial, or he could deny ownership of the bag, in which case he would not have standing to challenge an unlawful search." Id. at 551. In short, I fail to see how "the police might still have easily determined [the duffel bag's] owner[]" by questioning others in the apartment. Id. at 550.