Police Could Not Lift Up Shirt for Terry Frisk. State v. Privott 203 NJ 16 (2010)
Based on the totality of the circumstances, there were specific and particularized reasons for the officer to conduct an investigatory stop and to frisk defendant Privott. However, the officer’s conduct in lifting defendant’s shirt exceeded the scope of a reasonable intrusion that is permitted as part of a Terry stop.
The issue before the Court is whether the police had a reasonable suspicion to subject defendant, Tysen R. Privott, to an investigatory detention and, if so, whether the resultant search was conducted in a reasonable manner.
A Union County Grand Jury indicted defendant for third-degree possession of cocaine, third-degree possession of cocaine with intent to distribute, and second-degree possession to distribute cocaine within 500 feet of a public park. Defendant moved to suppress the drugs seized from his person at the time of his arrest. At the suppression hearing, Officer Jeffrey Plum was the sole witness on behalf of the State. He testified that on May 13, 2003, while on routine patrol with his partner, Officer Plum received a radio call from a police dispatcher that an anonymous caller reported a man with a handgun at the corner of Plainfield Avenue and West Third Street. The anonymous caller had described the individual as a tall, thin, dark-skinned male wearing a black jacket and a black and red cap. Officer Plum quickly arrived at the location and observed three men standing on the corner, one of whom was wearing a red jacket and a black and red cap. Officer Plum also noticed that the man was wearing a red jacket instead of a black jacket the anonymous caller described. Officer Plum observed that the man, later identified as defendant Privott, matched the physical description relayed by the dispatcher. Privott's jacket was open and he wore a long white tee-shirt that hung well below his jacket.
Officer Plum further testified that he pulled the car up on the sidewalk next to where defendant stood with the other two men. Officer Plum knew defendant from prior narcotics investigations and arrests. The officer also knew that defendant lived in the area and associated with a local violent gang that had been involved in shootings in the area. Upon seeing Officer Plum approaching in the patrol car, the men began to walk away. The officer observed that defendant appeared nervous and saw defendant move his hand toward his waistband as he was turning to walk away. From his experience, the officer was aware that suspects hide their weapons in their waistbands and, therefore, he believed that defendant was hiding a gun there. Officer Plum exited the patrol car, approached defendant, and had him place his hands on a nearby chain-link fence. Defendant fully cooperated. Officer Plum then lifted defendant's shirt in the immediate area of his waistband where a gun might be concealed. The search uncovered a bag containing what was suspected to be crack cocaine. Defendant also testified, denying that he made any motion with his hand to lift his tee-shirt. He said that the officer had him put his hands on the fence, patted him down, came back to his waist, and then lifted his shirt.
The trial court denied defendant's motion to suppress the evidence seized in the search, finding that there was reasonable suspicion to conduct an investigatory stop and that the officer's actions in lifting the tee-shirt were appropriate under the circumstances presented. The matter was subsequently tried before a jury and defendant was found guilty only on the count charging third-degree possession of cocaine. He was sentenced to five years in prison with a two-year period of parole ineligibility.
On appeal, the Appellate Division reversed the conviction, concluding that an investigatory stop was not justified because the anonymous tip of a man with a gun was not corroborated.
The Supreme Court granted the State's petition for certification.
HELD: Based on the totality of the circumstances, there were specific and particularized reasons for the officer to conduct an investigatory stop and to frisk defendant Tysen R. Privott. However, the officer's conduct in lifting defendant's shirt exceeded the scope of a reasonable intrusion that is permitted as part of a Terry stop.
1. The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures. An investigatory stop, also know as a "Terry" stop or a "stop and frisk," can be made by police without a search warrant if there are articulable facts which, taken together with rational inferences from those facts, reasonably justify an intrusion to search for a concealed weapon. Terry is narrowly drawn to permit only a reasonable search for weapons not for the purpose of discovering evidence of a crime but for the purpose of protecting the police officer where the officer has reason to believe that he is dealing with an armed and dangerous person. The search must be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of a police officer. (Pp. 7-10)
2. A reviewing court must evaluate the totality of the circumstances surrounding the Terry stop, balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions. Thus, in an attempt to uncover weapons which might be used to assault him, a police officer may conduct a carefully limited search or pat down of the outer clothing of a person the officer has an objectively reasonable suspicion may be armed and dangerous. Where an anonymous tip is involved, additional factors must be considered to generate the requisite level of reasonable and articulable suspicion, including: the tipster's veracity, reliability and basis of knowledge. The police must verify that the tip is reliable by some independent corroborative effort. (Pp. 10-14)
3. In this case, under the totality of the circumstances, there was a specific and particularized basis to support an investigatory stop of defendant. The relevant circumstances extend beyond the isolated anonymous tip of a man with a gun at a particular location. Here, defendant partially matched the description given by the anonymous informant, the officer recognized defendant from prior narcotics arrests, and defendant was associated with violent gangs that were responsible for shootings in the area. In addition, defendant began walking away when he saw the patrol car, appeared nervous, and moved his hand toward his waistband, an area commonly used by armed persons to conceal a weapon. When defendant walked away and placed his hands near his waistband, a reasonable officer with the background knowledge of the conditions in that area, and who had received an anonymous tip of a man with a gun, would have an objectively reasonable concern for his safety. Therefore, the totality of the circumstances justified the officer's decision to frisk defendant. (Pp. 14-18)
4. The investigative methods employed in a Terry stop should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. In addition, the frisk must be sufficiently limited in scope and duration. In this case, defendant was cooperative at all times. He had placed his hands against a fence as instructed by police. A reasonable search, as well as the least intrusive maneuver needed to protect the safety of the officer against a possible weapon, would have been a traditional pat-down search of defendant's outer clothing. That did not occur. Rather, the officer lifted defendant's tee-shirt to expose his stomach, and in doing so, a plastic bag of cocaine in the waistband of his pants. That maneuver exceeded the scope of the pat-down search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search. (Pp. 18-21)
Judgment of the Appellate Division is AFFIRMED, but for different reasons.
JUSTICE ALBIN, DISSENTING, in which JUSTICE RIVERA-SOTO joins, is of the view that when there is a reasonable and articulable belief that a suspect is armed with a weapon concealed in a precise location on the suspect's body, neither the Federal nor State Constitutions impose an inflexible regime of pat-down first when doing so will jeopardize the life of a police officer. Here, the officer believed that lifting the shirt was the best means of gaining control of a gun that might be hidden in defendant's waistband. Therefore, it cannot be concluded that the officer in this case conducted an unreasonable search.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, and HOENS join in JUSTICE WALLACE'S opinion. JUSTICE ALBIN filed a separate dissenting opinion, in which JUSTICE RIVERA-SOTO joins.
