When cops stop and frisk folks without sufficient evidence to support a finding of reasonable suspicion, "all the evidence seized is fruit of the poisonous tree and must be tossed right out," the Appellate Division once again declared, reminding cops that they are not free to disregard the rules.
"An officer's hunch or subjective good faith - even if correct in the end - cannot justify an investigatory stop or detention," the court stated, tossing a five-count indictment with drug and weapons charges.
On November 19, 2021, at about 8:50 a.m., Camden County Police Department Detective William Grasso "was conducting an undercover surveillance operation" on the 1300 block of Browning Street in Camden. The surveillance was initiated in response to Grasso's receipt of "specific information from a confidential source" who had "previously provided information to law enforcement" leading to "narcotics and weapons arrests."
According to the source, "a heavy set black male wearing a large black jacket with fur on the hood was standing on the 1300 block of Browning Street and . . . had a handgun concealed on his person." Grasso also knew that "the 1300 block of Browning Street was an open air drug set where illegal narcotics were sold" and "violent crimes including shootings and homicides" occurred.
While "conducting . . . surveillance . . . of the area," Detective Fabbroni of the Narcotics Gang Unit (NGU) observed "a heavy set Black male wearing a large black jacket with fur on the hood standing on the sidewalk on the 1300 block of Browning Street" with "several other unidentified males." The individual, later identified as Ronell J. Almorales, was "the only male observed wearing a black jacket with fur on the hood," and the other males were the only individuals observed on the 1300 block. Based on the tip, the time of day, the area's reputation, and Almorales's heavy clothing, Grasso believed defendant was carrying a firearm. Consequently, Grasso notified NGU detectives of his observations and advised that Almorales would be stopped.
Grasso proceeded to the 1300 block of Browning Street and exited his vehicle along with Fabbroni and Diaz, another NGU detective.
The detectives detained defendant, and conducted "a Terry frisk . . . for weapons." (A Terry stop is a procedure that involves a relatively brief detention by police during which a person's movement is restricted.) "While checking the right front pocket of Almorales's jacket," Diaz "felt an object consistent with . . . a handgun," and retrieved "a 9mm Black Taurus G2C" firearm containing a magazine with "nine ball point rounds of ammunition [and] . . . one ball point round in the chamber." During a search incident to arrest, the detectives found on Almorales "sixty-three clear plastic vials" containing a "white powder suspected to be cocaine," as well as $254 in U.S. currency.
Almorales was subsequently charged in a five-count indictment with third-degree possession of a controlled dangerous substance (CDS), third-degree possession of CDS with intent to distribute, second-degree unlawful possession of a weapon, second-degree possession of a weapon during a CDS offense, and second-degree certain persons not to have weapons.
On February 6, 2023, Almorales filed a motion to suppress the items seized, arguing that the informant's tip "was insufficient to establish the requisite veracity and basis of knowledge to support his detention and frisk."
On March 29, 2023, the motion judge granted the suppression motion, concluding the detectives "lacked reasonable suspicion to stop and frisk defendant because they did not sufficiently corroborate any criminal activity based on the confidential informant's tip." Critically, the judge noted "defendant's body-type, clothing, and location were the only facts the police were able to corroborate." The judge pointed out that the detectives "did not observe any activity, like Almorales adjusting his waist band; or any observable indicia, like a bulge in defendant's pocket; to raise a suspicion that defendant was concealing a handgun."
As such, the judge found that "all the police had to go on . . . was the bare report of an unnamed informant who neither explained how [he or she] knew about the gun nor supplied any basis for believing [he or she] had inside information about Almorales." According to the judge, "when viewed in its totality, the information provided by the informant lacked the requisite detail to establish a basis of knowledge to support the reliability of the tip and justify an investigative detention." Because the detectives had "insufficient evidence to support a finding of reasonable suspicion to warrant an investigatory detention," the judge concluded that "all the evidence seized from defendant's person [was] fruit of the poisonous tree and must be excluded."
The Camden County Prosecutor's Office appealed this ruling.
Judges Gilson and Gooden Brown were not the slightest bit persuaded.
In a written ruling just released, the judges affirmed the trial court's ruling.
A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement. State v. Gamble.
The State bears the burden of proving by a preponderance of the evidence that the warrantless search or seizure fell within one of the exceptions. State v. Goldsmith.
Here, the exception at issue is an investigative stop, also known as a Terry stop, which is a procedure that involves a relatively brief detention by police during which a person's movement is restricted. An investigative stop or detention is permissible 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. The standard for this form of brief stop or detention is less than the probable cause showing necessary to justify an arrest. However, an officer's hunch or subjective good faith - even if correct in the end - cannot justify an investigatory stop or detention.
Pursuant to Terry and its progeny, in addition to an investigative stop, a police officer may conduct a protective search or pat-down without a warrant when the officer believes the individual detained is armed and dangerous.
This exception allows a law enforcement officer to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. State v. Roach. Specifically, the officer may conduct a carefully limited search of the outer clothing to determine whether weapons are present. Like an investigatory stop, in order to conduct a protective search, an officer must have a 'specific and particularized basis for an objectively reasonable suspicion that defendant was armed and dangerous.
"Determining whether reasonable and articulable suspicion exists for an investigatory stop is a highly fact-intensive inquiry that demands evaluation of 'the totality of circumstances surrounding the police-citizen encounter, balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions.'" Goldsmith, quoting State v. Privott. The inquiry "takes into consideration numerous factors, including officer experience and knowledge."
With regard to presence in an area where criminal activity is prevalent, although the reputation of an area may be relevant to the analysis, our Supreme Court has held that just because a location to which police officers are dispatched is a high-crime area does not mean that the residents in that area have lesser constitutional protection from random stops. ("An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime... The words 'high crime area' should not be invoked talismanically by police officers to justify a Terry stop that would not pass constitutional muster in any other location."). Although "officers need not ignore the relevant characteristics of a neighborhood, . . . more is required to find reasonable suspicion." Goldsmith, citing Wardlow.
When an informant's tip factors into the analysis, an informant's "veracity" and "basis of knowledge" are two highly relevant factors under the totality of the circumstances. A deficiency in one of those factors "may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." An informant's veracity may be established in a variety of ways. For example, the informant's past reliability will contribute to the informant's veracity. With regard to the informant's basis of knowledge, if the informant does not identify the basis of knowledge, a reliable basis of knowledge may nonetheless be inferred from the level of detail and amount of hard-to-know information disclosed in the tip. Finally, independent corroboration of hard-to-know details in the informant's tip may also greatly bolster the tip's reliability.
Even where the veracity factor is satisfied "by demonstrating that the informant has proven reliable in the past, such as providing dependable information in previous police investigations," the State must still demonstrate that the "informant obtained his [or her] information in a reliable manner." State v. Keyes. For example, information may be deemed to have come from a trustworthy source if the informant provides 'sufficient detail in the tip or recount[s] information that could not otherwise be attributed to circulating rumors or easily gleaned by a casual observer.
Applying these principles, we are satisfied that the judge correctly concluded the detectives lacked a reasonable articulable suspicion that defendant was engaged in criminal activity to justify the stop and, in turn, the frisk. Grasso believed defendant was armed based on the tip, the time of day, the prevalence of crime in the area, and defendant's heavy clothing. The time of day and prevalence of crime in the area are "non-specific, non-individualized" reasons for conducting an investigatory stop of defendant. Goldsmith.
Because neither reason is specific to defendant engaging in behavior indicative of criminal activity, it "could be used to justify the stop of virtually anyone" at that time of day "based simply on their presence on that street." We acknowledge that Grasso's awareness of the prevalence of crime in the area is a relevant factor, but it was insufficient under the circumstances to form a reasonable and articulable suspicion of criminality - even considering the other factors.
Turning to the tip and defendant's clothing, as the judge pointed out, the fact that the tip accurately described defendant's clothing and location "is of no moment because a tipster's knowledge of such innocent identifying details alone 'does not show that the tipster has knowledge of concealed criminal activity.'" State v. Rosario.
Although the tip satisfied the veracity factor because the informant had proven reliable in the past, the information provided in the tip was not information the informant could claim to know only if he or she had a reliable source of information to satisfy the basis of knowledge factor. Without knowing the facts that led the informant to believe defendant was engaged in illegal activity, we cannot make an independent determination of whether that conclusion was reasonable.
Further, there were no police observations of defendant engaging in behavior indicative of criminal activity or awareness of defendant engaging in criminal activity in the past to corroborate the tip and cure its deficiencies. Although the detectives corroborated defendant's body-type, clothing, and location, those facts, combined with the others, were still insufficient to establish an objectively reasonable suspicion that defendant was armed and dangerous. See Thomas, (concluding officer was justified in making an investigatory stop based on a tip that "included a detailed description of the appearance, name, and location of a person allegedly in possession of illegal drugs," which facts were corroborated by the officer observing the defendant at the location and matching the description as well as the officer's recognition of the defendant "from a prior arrest for drug possession.")
In sum, we are convinced the State failed to meet the constitutional threshold of individualized reasonable suspicion' that this particular defendant was engaged in criminal activity.
Therefore, we discern no error in the judge's decision granting defendant's motion to suppress, the Appellate panel concluded.
Almorales was represented by Assistant Deputy Public Defender Douglas R. Helman.
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