STATE OF NEW JERSEY v. TERRANCE TYLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1938-06T51938-06T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

TERRANCE TYLER,

Defendant-Respondent.

__________________________________

 

Submitted April 18, 2007 - Decided

Before Judges Lefelt and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No.

06-05-0875-I.

Luis A. Valentin, Monmouth County Prosecutor, attorney for appellant (Danielle Zanzuccki, Assistant

Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Ruth Bove Carlucci, Assistant Deputy

Public Defender, of counsel and on the brief).

PER CURIAM

The State appeals, on leave granted, from the motion judge's order suppressing evidence seized without a warrant. We affirm.

These are the salient facts. On February 9, 2006, at around 1:00 p.m., Officer William Kirchner, an eleven-year veteran of the Neptune Police Department assigned to its Quality of Life detail, was conducting routine surveillance in an unmarked car with another officer in a high narcotics trafficking area. The location was the intersection of Milton Avenue and State Highway 35, where a number of businesses operate, including an auto parts store and a Popeye's Chicken Restaurant and parking lot, situated directly across from each other. Popeye's had just opened two weeks ago, having replaced a Quick Pick convenience store, whose parking lot was the subject of numerous complaints of drug activity from area businesses and residents. However, since that location changed hands, there were no similar reports.

Kirchner and his partner parked on Milton Avenue, adjacent to Popeye's parking lot, and "had a view to [their] right of everything that was in Popeye's." Kirchner observed a white Dodge Caravan enter Popeye's parking lot. The driver, later identified as defendant Terrance Tyler, got out of the van and entered the south side door of the restaurant. Meanwhile, a male passenger remained in the van and reclined his seat all the way back. Throughout, Kirchner maintained visual contact through the large plate glass windows on the front and side of the restaurant building. Defendant did not order food, but sat down and talked with a man seated at a table by the door. The two men spoke for about two or three minutes and Kirchner observed nothing unusual occurring.

The two men exited the same door through which defendant had entered the restaurant. They walked down the southern wall of the building in a westerly direction, on the sidewalk of a drive-through lane immediately adjacent to a traffic lane in Popeye's southern parking lot where their cars were parked. The two men walked past a drive-through window and a delivery window to the corner of the building where a mural was painted on the wall. They then turned their backs facing the wall, briefly conversed, shook hands, and departed their separate ways. Kirchner did not observe them exchange anything.

Defendant walked to his van, and the other man entered a small black vehicle, which was parked closer to the Highway 35 entrance, and drove north on Highway 35. Upon defendant's return to the van, the passenger returned his seat to the upright position, and the two briefly spoke to each other before exiting the parking lot and driving west on Milton Avenue.

Based on these observations and his belief that it was common practice for those involved in drug transactions to use business parking lots to conduct their deals because these sites are busy, high traffic areas where such activity goes unnoticed, Kirchner believed that a narcotics transaction had just taken place. Consequently, Kirchner and his partner stopped defendant's vehicle in the area of Stratford Avenue and Neptune Boulevard. Kirchner approached the vehicle, identified himself as a police officer, and asked defendant for his license and registration. Defendant was very cooperative, provided the registration and insurance card for the vehicle, but was unable to produce a license. At the time, defendant falsely identified himself as Caron Law.

While speaking with defendant, Kirchner observed in plain view a yellow zip-lock bag containing a vegetative substance, which he recognized as marijuana, on the dashboard of the vehicle. Defendant was ordered out of the vehicle and escorted to the rear of the vehicle.

Defendant then informed Kirchner that his real name was Terrance Tyler, he had a warrant out for his arrest, and that he was also in possession of cocaine and additional marijuana. As a result, defendant was arrested and handcuffed. Kirchner then searched defendant and discovered five orange Ziploc bags containing crack cocaine, and six yellow Ziploc bags and one orange Ziploc bag containing marijuana. The passenger was also ordered out of the vehicle and arrested for the marijuana in the vehicle.

Defendant was indicted for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). He subsequently moved to suppress evidence of the drugs, and the judge granted the motion, reasoning:

Here the issue is presence in an area known for high narcotic trafficking. That doesn't necessarily satisfy the government's burden. See In Re State in the Interest of D.S., 63 N.J. 541 at 542 (1973). The Court in D.S. acknowledged that mere presence in a high crime or narcotic area does not give the police reasonable grounds for an investigatory stop and frisk where the conduct of the suspect itself added nothing to justify police intrusion.

Here we had a known narcotic area

. . . . And a number of reports at the new Popeye Restaurant. The actions of the defendant in parking his car, going into a restaurant, sitting and talking to someone, walking outside with someone, turning his back and then shaking hands, there could be any number of explanations for that kind of conduct. Clearly the officer, Ptlm. Kirchner had a hunch and it was a good hunch. Because there was a lot of drugs that were recovered, both from defendant and the passenger.

But I don't think that's sufficient in this case . . . I don't believe there was reasonable suspicion that permitted the stop in this case. There was no hand to hand, there was no money seen. And so the Court finds that it was not reasonable at this point based on the defendant's conduct to stop him based on reasonable suspicion. There were no packages exchanged. So the fact that in broad daylight at a restaurant two people meet, walk outside and shake hands, is not in this Court's analysis of the case law, sufficient. And the Court will grant the motion to suppress.

On appeal, the State argues that the investigatory stop of defendant's van was valid as supported by adequate reasonable and particularized suspicion. We disagree.

Police-citizen encounters generally occur at three distinct levels, but only two require constitutional justification. State v. Nishina, 175 N.J. 502 (2003). Thus, police may arrest only if they have probable cause; may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds or suspicion. Florida v. Royer, 460 U.S. 491, 497-99, 103 S. Ct. 1319, 1324-25, 75 L. Ed. 2d 229, 236-37 (1983) (plurality opinion); State v. Maryland, 167 N.J. 471, 482-84, 486-87 (2001); State v. Alexander, 191 N.J. Super. 573, 576 (App. Div. 1983), certif. denied, 96 N.J. 267 (1984). Specifically, for present purposes, the police are permitted to make an investigatory stop without a warrant and without probable cause. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 906 (1968); State v. Davis, 104 N.J. 490, 499 (1986). By the same token, police may lawfully stop a motor vehicle for investigatory purposes if the police have "a 'particularized suspicion' based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing." State v. Gavazzi, 332 N.J. Super. 348, 354 (App. Div. 2000) (quoting Davis, supra, 104 N.J. at 504); see also State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Murphy, 238 N.J. Super. 546, 554 (App. Div. 1990)).

As noted, an investigatory stop is valid "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." Nishina, supra, 175 N.J. at 510-11 (citation and internal quotations marked omitted). The standard by which the reasonableness of police conduct involving an investigatory stop is measured is an objective one. State v. Pineiro, 181 N.J. 13, 22 (2004); State v. Stovall, 170 N.J. 346, 356 (2002). There must be "some objective manifestation that the person [detained] is, or is about to be engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 628 (1981). In other words, "would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?" State v. Arthur, 149 N.J. 1, 7-8 (1997).

A determination of reasonable suspicion is fact-sensitive. Nishina, supra, 175 N.J. at 511. The objectivity of the police officer's observations is determined by the totality of the circumstances. Pineiro, supra, 181 N.J. at 22; Davis, supra, 104 N.J. at 504. Moreover, when determining if the officer's actions were reasonable, consideration must be given "to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Arthur, supra, 149 N.J. at 8. Thus, an officer's experience and knowledge are factors courts should consider in applying the totality of the circumstances test. Davis, supra, 104 N.J. at 504. So too, "[t]he fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as 'a reasonable person would find the actions are consistent with guilt.'" Pineiro, supra, 181 N.J. at 25 (quoting State v. Citarella, 154 N.J. 272, 279-80 (1998)).

However, "some minimum level of objective justification" must exist. United States v. Sokolov, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989); Arthur, supra, 149 N.J. at 8. On this score, "mere presence in a high crime or narcotic area does not give the police reasonable grounds for an investigatory stop and frisk where the conduct of the suspect itself added nothing to justify the police intrusion." State in the Interest of D.S., 125 N.J. Super. 278, 286 (App. Div.) (Botter, J.A.D. dissenting), rev'd, 63 N.J. 541 (1973).

For instance, in D.S., defendant and his companion were standing on a street corner outside a tavern in a well-lighted area at 10:00 p.m., when a third youth came out of the tavern to join them. Two officers decided to investigate although they had heard nothing and had seen nothing pass among the three youths, who were not known to arresting officers as narcotics violators, who came over to the police car at the officers' request, and there was no indication that the youths were armed and dangerous. 125 N.J. Super. at 283. All three teenagers were then patted down and defendant was found in possession of heroin. Ibid. The Court, adopting Judge Botter's dissent, found that neither the investigatory stop nor the pat-down search were authorized, and therefore evidence discovered was inadmissible even though taverns in that area were known for narcotics traffic. 63 N.J. at 542.

In State v. Tucker, 136 N.J. 158 (1994), the sole basis for police action was the youth's flight upon seeing a marked patrol car. Id. at 168-69. Without more, the Court held that seizure of the defendant was invalid under our State constitution, ibid., quoting from our decision below:

[W]hat this record does not show is also highly persuasive; no observed criminal activity; no particularized suspicious conduct, such as the possession of suspicious packages or the exchanging of money; no reports of recent nearby crimes; no descriptions of recent crime suspects; no nearby potential or [actual] victims of crimes; no nearby vehicle matching a description of a vehicle involved in a recent crime, or the like.

[Id. at 169, affirming 265 N.J. Super. 358, 360 (App. Div. 1993).]

Similarly, in State v. Kuhn, 213 N.J. Super. 275 (App. Div. 1986), the only basis articulated by the police officer for the stop of the defendant's vehicle was that there were two Hispanics and one Caucasian in a location he considered to be a "high crime" area. Id. at 278, 281. However, the officer observed no narcotics and no money changing hands. There had been no report of recent crime nearby. Defendant and his companions fit no description of suspects in recent crime; there were no potential or likely victims of crimes observed nearby; there had been no informant's tip that a crime or a drug transaction was about to occur; and defendant's vehicle matched no description of a vehicle involved in any crime. Id. at 278-79. We held that no rational inference of criminal activity may be drawn under the circumstances, including that the location was a high crime or high drug area. Id. at 281.

We are similarly persuaded that present circumstances admit of no reasonable inference of criminal activity. Although the parking lot of the previous business establishment was considered the site of numerous drug arrests, defendant's activity both inside and outside the building was innocent and innocuous. He encountered another individual in a restaurant, exited as he entered in the direction of his parked car, chatted briefly, shook hands, and departed. Surely, his presence alone at the location under surveillance is not a ground for concluding that defendant himself was engaged in criminal activity.

Much is made by the State of the fact that as defendant exited the building, he sought a secluded area before finally departing the scene. On the contrary, he exited on the south side of the building where his car was parked and walked in the open along a drive-through lane immediately adjacent to a traffic lane in full view not only of the surveillance team, but the public in general. We find nothing in this behavior inconsistent with innocence.

To be sure, "police may rely on behavior that is consistent with innocence as well as guilt in finding reasonable and articulable suspicion to conduct an investigatory stop." Pineiro, supra, 181 N.J. at 25. Yet, there must be some "minimum level of objective justification," Arthur, supra, 149 N.J. at 8; some "particularized" suspicion, Davis, supra, 104 N.J. at 504, to validate an investigatory stop. We find none here. Nothing in defendant's behavior is suggestive of guilt. No exchange of money or items was ever seen, either while in the restaurant or thereafter shaking hands outside, in open plain view and in broad daylight. There was no furtive or clandestine behavior on defendant's part. Indeed, Kirchner himself detected nothing unusual while the two conversed in the restaurant. Moreover, defendant was unknown to the police and fit no description of suspects in recent crime. There was no informant's tip that a drug transaction was about to occur. And although the surrounding vicinity may have been considered a high drug traffic area, there were no complaints or reports of narcotics activity at the site since Popeye's restaurant opened. And even if there were, defendant's conduct added nothing to justify the police intrusion.

Under the circumstances, we are satisfied that the officers' investigatory stop of defendant's vehicle was not supported by reasonable and articulable suspicion, and is therefore invalid. The stop being without constitutional basis, all that followed is tainted and consequently the fruit of that police activity must be suppressed. Davis, supra, 104 N.J. at 497; see also Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

Affirmed.

 

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A-1938-06T5

May 9, 2007