Police can’t
search just because person is in no loitering area.
If no probable cause to arrest, search of
person is improper State v. Gibson 214 NJ 564 (2014)
Supreme
Court of New Jersey
January 7th, 2014
Docket Number:
A-27-12
State v.
David M. Gibson (A-27-12) (070910)
Argued
October 8, 2013 -- Decided January 7, 2014
ALBIN, J., writing for a unanimous Court.
In
this appeal, the Court considers whether there was probable cause to arrest
defendant for defiant trespass. Without probable cause to arrest, the
warrantless search of defendant at the stationhouse cannot stand.
At
about 3:20 a.m. on November 24, 2007, Officer Wayne Comegno observed,
momentarily, defendant David Gibson leaning against an upraised porch on the
Omega Community Center’s private property. In a window looking out onto the
building’s porch, a posted sign read, “no loitering.” According to Officer
Comegno, the Community Center is located in a high-crime area and its president
had requested that the police make checks due to incidents of criminal
mischief. As the patrol car approached, Gibson moved on, walking a city block
before being stopped and questioned by Officer Comegno.
The
officer asked Gibson for identification, where he was coming from, and whether
he had permission to be on the Community Center’s property. Gibson gave his
name and explained that he was coming from his child’s mother’s home, which is
located two blocks north of the Community Center, and that he was waiting for a
ride. Officer Comegno testified that Gibson appeared “very excited” and
“somewhat evasive,” and that “he was looking around as though he was attempting
to run.” The officer did not, however, elaborate on how Gibson was “evasive.”
Based on his observations and interaction with Gibson, Officer Comegno
concluded that Gibson had the intent to commit a defiant trespass, a petty
disorderly persons offense, and arrested him.
A
subsequent search of Gibson at the police station uncovered thirteen bags
containing crack cocaine. Gibson was charged with various drug crimes and
subsequently moved to suppress the drug evidence, claiming that Officer Comegno
did not have probable cause to make the arrest.
After
a suppression hearing at which only Officer Comegno testified, the trial court
found that the officer had probable cause to make an arrest for defiant
trespass and therefore was authorized to conduct a search incident to an
arrest. The Appellate Division affirmed the denial of the motion to suppress.
State v. Gibson,
425 N.J. Super. 523
(App. Div. 2012). The panel stated that Officer Comegno’s encounter with Gibson
began as a field inquiry, and then evolved into an investigative stop given the
officer’s “reasonable suspicion of criminal activity” based on “the lateness of
the hour, [Gibson’s] immediate departure from the Omega property upon seeing
the officer, and [Gibson’s] excited and evasive demeanor when questioned.”
According to the appellate
panel, the reasonable suspicion ripened into probable cause to arrest for
defiant trespass “when [Gibson] failed to assert that he was on the Omega
property with permission.” Even though the property owner posted a “no
loitering” sign instead of a “no trespassing” sign, the panel maintained that
there was probable cause to arrest for defiant trespass because the owner’s
intent to keep others off the property was reasonably conveyed. The Court
granted Gibson’s petition for certification.
212 N.J.
460 (2012).
HELD: There was insufficient
evidence in the record to support a finding that Officer Comegno had probable
cause to arrest Gibson for defiant trespass; therefore, the subsequent search
at the stationhouse was unconstitutional and the drug evidence seized during
the search must be suppressed.
1. Under N.J.S.A. 2C:18-3(b), a person
commits the petty disorderly persons offense of defiant trespass “if, knowing
that he is not licensed or privileged to do so, he enters or remains in any
place as to which notice against trespass is given . . . in a manner . . .
reasonably likely to come to the attention of intruders . . . .” This case
deals only with the “enters” portion of the statute, which has no temporal
requirement for a completed trespass. Provided sufficient notice is given
against trespass, even a brief willful entry onto another’s property may
constitute a violation of N.J.S.A. 2C:18-3(b). The relevant inquiry here is
whether Gibson was given “notice against trespass” in a manner “reasonably
likely to come to [his] attention” and in a form so that he knew that he was
not “licensed or privileged” to set even a foot on Omega’s property or to lean
against its porch. The answer depends on whether the
1 “no loitering” sign gave sufficient notice to make a reasonable person
aware that even a slight and brief incursion on the property was a prosecutable
offense.
2. “No loitering” does not
convey the same meaning as “no trespassing.” As commonly understood and
defined, “loitering” means remaining or lingering at a particular location for
some indefinite period of time for no apparent purpose. On the other hand,
trespass--particularly as used in the defiant trespass statute--prohibits the
mere entering in a place when one is not licensed or privileged to do so.
Unlike loitering, the “enters” portion of the trespass statute has no temporal
element. Based on these commonly accepted definitions, it is fair to say that
the “no loitering” sign in the porch window of the Omega Community Center
communicated that a person should not be idly remaining or loafing on its
property.
3. The constitutionality of
the arrest in this case, and the legitimacy of the subsequent stationhouse
search, depends on whether there was probable cause to believe that Gibson was
a defiant trespasser. Probable cause is a well- grounded suspicion that a crime
has been or is being committed. In determining whether probable cause exists, a
court must look to the totality of the circumstances, and view those
circumstances from the standpoint of an objectively reasonable police officer.
In addition, the State bears the burden of proving by a preponderance of the
evidence that the officer had probable cause to make the arrest. Although the
trial court’s credibility assessments are entitled to deference, the Court is
not obliged to defer to the ultimate finding of probable cause when the facts
and inferences do not support that conclusion.
4. According to the record, Gibson was seen
leaning on the porch for no more than a few moments before he began walking. As
soon as the officer saw Gibson, Gibson moved on, but did not take flight or
dart between buildings. Although Officer Comegno claimed that Gibson was
“evasive” and looked as though he might “run,” he gave no factual support for
those subjective feelings. In addition, although the officer cited, as one
basis for making the arrest, Gibson’s failure to give “lawful reasons” for
leaning on the porch, Gibson explained why he was on the street at that hour.
The notice on the Omega property did not suggest that leaning on the porch for
a very brief period of time would subject Gibson to a defiant trespass
prosecution. Gibson was instead warned against loitering, which has a
distinctly different meaning than trespass. Momentarily leaning against a
building, or an upraised porch, on a city block, would not be considered
loitering to an objectively reasonable citizen. If Gibson was not loitering,
then Officer Comegno could not have formed a well-grounded suspicion that
Gibson was defiantly trespassing. Therefore, the record does not support that
Officer Comegno had probable cause to arrest Gibson for defiant trespass. The
police station search cannot stand because it was incident to an
unconstitutional seizure.
The judgment of the Appellate Division is
REVERSED, and the matter is REMANDED for proceedings consistent with this
opinion. CHIEF JUSTICE RABNER,
JUSTICES LaVECCHIA and PATTERSON, and JUDGES RODRÍGUEZ and CUFF (both
temporarily assigned) join in JUSTICE ALBIN’s opinion.
2 SUPREME
COURT OF NEW JERSEY A-27
September Term 2012
070910 STATE OF NEW JERSEY, Plaintiff-Respondent, v.
DAVID M. GIBSON
Defendant-Appellant.
Argued October 8, 2013 -- Decided January 7, 2014.
On certification to the Superior Court, Appellate Division, whose opinion
is reported at
(2012). Alyssa A. Aiello, Assistant Deputy
Public Defender, argued the
cause for appellant (Joseph E.
Krakora, Public Defender,
attorney). Steven A. Yomtov, Deputy Attorney
General, argued the cause for
respondent (John J. Hoffman,
Acting Attorney General, attorney).
JUSTICE
ALBIN delivered the opinion of the Court.
The right to walk freely on the streets of a city without fear of arbitrary arrest is one of the
guarantees protected by the Fourth
Amendment of the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution. A person
cannot be arrested unless there is probable cause to believe that he has committed or is committing an
offense. An arrest without probable cause is an unreasonable
seizure in violation of both the Federal
and State Constitutions. In the
early morning hours of November 24, 2007, a police officer on vehicular patrol observed,
momentarily, defendant David Gibson
leaning against a building’s upraised porch on a street corner in the City of Burlington. In a window looking out onto the building’s porch, a posted sign
read, “no loitering.” Gibson moved on, walking a whole city block
before he was stopped and questioned by
the officer. According to the officer, the ground on which Gibson stood as
he leaned against the porch was private
property. On that basis, in addition
to Gibson’s nervous demeanor after the
stop, the officer concluded that Gibson
had the intent to commit a defiant trespass, a petty disorderly persons offense, and arrested him. Gibson moved to suppress drug evidence
discovered during a search at the
stationhouse because, as he claims, the officer
did not have probable cause to make the arrest. After a hearing at which the arresting officer testified, the
trial court denied the suppression
motion, and the Appellate Division affirmed. Even given our deferential standard of
review, the court cannot hold that there
is sufficient credible evidence in the record to support the trial court’s finding that the
officer had probable cause to believe
that Gibson was a defiant trespasser.
Because the court conclude that
the trial court’s finding of probable cause was clearly mistaken, the court
must reverse the Appellate Division and
remand for entry of an order suppressing the evidence. I. Defendant was charged in a Burlington
County indictment with second-degree
possession of a controlled dangerous
substance (CDS), namely cocaine, with intent to distribute within 500 feet of certain public property,
N.J.S.A. 2C:35-7.1; third-degree
possession of CDS with intent to distribute within 1,000 feet of school property, N.J.S.A.
2C:35-7; third-degree possession of CDS
with intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and -5(b)(3); and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1). Gibson moved to suppress CDS evidence discovered on him after his arrest for
defiant trespass. He claimed that his arrest was an
unconstitutional seizure and therefore
the following search invalid, requiring suppression of the evidence under the exclusionary
rule. At the suppression hearing in
Superior Court, Burlington County, only
one witness testified, Officer Wayne Comegno of the Burlington City Police Department. The factual record consists entirely of the testimony of Officer
Comegno. A. At about 3:20 a.m. on November 24, 2007,
Officer Comegno, a four-year veteran,
was patrolling in a squad car in the New Yorkshire area -- a historic section
of the city also known to him for its
history of violent crimes and drug activity.
The president of the Omega
Community Center had asked the police to
check the property “because of incidents of criminal mischief.” The Community Center is a three-story
building that “sits on the corner of
York and Jones Avenue.” On the York
Street side, the building has an
upraised porch -- two feet off ground level --
with two windows facing off the porch.
In the upper half of one of the
windows was a “no loitering” sign.
As Officer Comegno drove south on York Street, he noticed David Gibson “leaning against the porch of
the Omega Community Center.” Officer Comegno concluded that the ground on
which Gibson was standing, as he leaned
against the porch, was the private
property of the Community Center. The
record does not reveal how many feet or
inches Gibson stood off the sidewalk or
street onto Omega’s property by Officer Comegno’s reckoning. According to the officer, the area was
illuminated and the “no loitering” sign,
which he could see from his car, was
approximately two feet from where Gibson was standing. As the patrol car approached him, Gibson
began walking south on York Street. This was apparently just moments after Officer Comegno first caught sight of
him. As Gibson crossed over Jones Avenue and headed towards Green
Street, Officer Comegno did not pull his
patrol car over and attempt to stop him.
Instead, the officer drove around the block. After Gibson
walked the full length of the block and reached the intersection of York Street and Green Street, Officer
Comegno rounded the corner and
“intercepted” him. The officer exited
his patrol car and asked Gibson for
identification. He also asked Gibson
where he was coming from and whether he
had permission to be on Omega’s
property. Gibson gave his name and
explained that he was coming from “his
child’s mother’s home located at 200 East
Broad Street,” which is located two blocks north of the Omega Community Center. He told the officer that “[h]e was
waiting for a ride, something along
those lines.” To Officer Comegno, Gibson appeared “very excited” and “somewhat
evasive,” and the officer thought “he
was looking around as though he was
attempting to run.” The officer
did not elaborate on how Gibson was
“evasive,” and Gibson did not flee.
Officer Comegno “felt that there was an intent to trespass at the Omega Community Center” based on his
observations and interaction with Gibson
and therefore “placed him under arrest.”
Only after he spoke with Gibson did he conclude that Gibson had “the intent to trespass.” Officer Comegno admitted that he did not see Gibson involved in any criminal activity
while he leaned against the Community
Center’s porch, but offered that one of
the reasons for making the arrest was Gibson’s failure to give “lawful reasons” for leaning on the
porch.
Officer
Comegno handcuffed Gibson and searched him before placing him in the patrol car. No weapons or contraband were found on his person at that time. At the Burlington City police station, a more thorough search of Gibson
uncovered thirteen clear plastic bags
containing crack cocaine. Officer
Comegno explained that arresting Gibson for the
petty disorderly persons offense of defiant trespass, as opposed to issuing a summons at the scene, was part
of normal procedure. He conceded that,
at times, he issued summonses for offenses,
but only when directed by a supervisor, and he did not contact a supervisor that night.
B. The
trial court denied the motion to suppress based on Officer Comegno’s testimony. The court recounted that Officer Comegno, an experienced officer familiar with
the area, “observed a black male . . .
David Gibson standing on the property of
the Omega Community Center . . . leaning on the
front porch” at a time when the Community Center was not open to the public.
The court stressed that a “no trespassing sign was posted at porch level in the window.” The
court also noted that Officer Comegno
thought that Gibson was “acting furtively” and
“was going to run away.” The
court found that the officer had
probable cause to make an arrest for defiant trespass and therefore was authorized to conduct a search
incident to an arrest.
The court emphasized it did not read our decision in State v. Dangerfield,
171 N.J. 446 (2002), to limit the
scope of a search incident to an arrest
to a weapons search -- a safety search
-- when the charge is for the petty disorderly persons offense of defiant trespass. C. After the denial of his suppression
motion, in accordance with a plea
agreement, Gibson pled guilty to third-degree
possession with intent to distribute CDS. The court sentenced Gibson on that charge to a term of eight
years in State Prison with a four-year
parole disqualifier and imposed all requisite
fines and penalties.1 The remaining charges in the indictment were dismissed. II. The Appellate Division affirmed the
denial of the motion to suppress. State v. Gibson, 425 N.J. Super. 523
(App. Div. 2012). The panel stated that Officer Comegno’s
encounter with Gibson began as a field
inquiry, id. at 527 n.1, and then
evolved into an investigative stop given the officer’s “reasonable suspicion of criminal activity”
based on “the 1 The
judgment of conviction does not explain the basis for sentencing Gibson in the
range of a second-degree crime for a third-degree offense. Perhaps Gibson was
sentenced to an extended term; the court do not know from this record. lateness
of the hour, [Gibson’s] immediate departure from the Omega property upon seeing the officer, and
[Gibson’s] excited and evasive demeanor
when questioned,” id. at 527.
According to the appellate panel,
the reasonable suspicion for the
investigative stop ripened into probable cause to arrest for defiant trespass “when [Gibson] failed to
assert that he was on the Omega property
with permission.” Id. at 527-28. The panel maintained that Officer
Comegno had probable cause to arrest
under the defiant trespass statute, N.J.S.A.
2C:18-3(b), “even though the property owner posted a ‘no loitering’ sign instead of a ‘no trespassing’
sign.” Id. at 528.
“[S]o long as the owner’s intent to keep others off the property is reasonably conveyed,” the panel
reasoned, the statute’s notice
requirement is met. Id. at 529. In the
panel’s view, “‘no loitering’ is a message sufficient to convey the same meaning as ‘no trespassing.’” Ibid.
The panel concluded that the “no
loitering” sign gave the officer a
reasonable basis to conclude that Gibson “was engaged in criminal activity by leaning against the
porch of the Omega property.” Id. at 530.2 2
The panel did not find sufficient merit to discuss Gibson’s argument
that he should have been given the opportunity to post bail before he was
searched at the stationhouse. Id. at 526.
The court granted Gibson’s petition for certification. State v.
Gibson, 212 N.J. 460 (2012).
III. A. Gibson argues that his arrest was
unconstitutional because it was not
supported by probable cause and therefore the search incident to the arrest was invalid as
well. He also contends that “a ‘no loitering sign’ cannot adequately
warn against trespass because
‘loitering’ and ‘trespassing’ denote different
types of conduct.” Gibson points
out that “‘loitering’ is commonly
understood to mean presence in a place for a prolonged period of time, with no aim or purpose,”
whereas a defiant trespass means an
unprivileged entry onto another’s property
where there is adequate notice against trespass. The
distinction between the two, Gibson claims, is critical. He
submits that “the ‘no loitering’ sign adequately warned [him] that he could not idly remain on Omega
property for a prolonged time,” but that
the sign did not adequately warn him that he
would be subject to prosecution for “briefly leaning] against the porch as he waited for a ride.” He cautions that clothing the police with the authority to arrest under
circumstances such as here, “creates
[the] grave potential for official
harassment.”
Gibson
also claims that the police violated his Fourth
Amendment rights by conducting a warrantless search at the stationhouse. He posits that “the stationhouse search was
not a search incident to an arrest”
because the arrest and search occurred
at the scene and further that “the police did not have authority to conduct an inventory search
before releasing [him] on his own
recognizance or giving him an opportunity to post bail.”
B. The
State submits that, given the totality of the
circumstances, Officer Comegno had a well-grounded suspicion, and therefore probable cause, to arrest
Gibson for the petty disorderly persons
offense of defiant trespass. . . The
circumstances warranting an objectively reasonable police officer finding probable cause for defiant
trespass, according to the State,
include Gibson’s leaning on the porch of the Omega property, the officer’s knowledge that the
property was in a high-crime area, prior
complaints of the property owner about
trespassers, the officer’s observation that Gibson appeared to be “very excited” and “somewhat evasive” when
questioned, and Gibson’s failure to
provide a “lawful reason” for “leaning against
the raised porch.” The State insists
that the “no loitering” sign was
sufficient to give Gibson notice against
trespassing on Omega’s property, for the reasons expressed by the
Appellate Division. Alternatively, it
submits that even if the notice element
of defiant trespass was not satisfied,
“[Gibson’s] relief should not be suppression of the evidence under the exclusionary rule,” but dismissal
of the defiant trespassing charge “on
legal sufficiency grounds.”
The
State also argues that the police conducted a
permissible search of Gibson at the stationhouse. It proffers
that “because Officer Comegno could only perform a limited search incident to arrest at the scene, it
was entirely appropriate . . . to
continue the search at the police station
so that a full search incident to arrest could be conducted there.”
Citing Dangerfield, supra, 171 N.J. 446 , the State submits that there is no legitimate authority
for Gibson’s position that he is
“‘presumptively entitled to be released upon
the issuance of a summons, rather than being arrested.’”
IV.
The decisive issue before us is whether Officer Comegno had probable cause to arrest Gibson for defiant
trespass. In the absence of probable cause to arrest, the
search at the scene and the search at
the stationhouse cannot pass constitutional
muster. To determine whether the
officer had a constitutional basis to
arrest Gibson, the court first must understand the statutory requirements of defiant trespass.
A
person commits the petty disorderly persons offense of defiant trespass, if, knowing that he is not licensed
or privileged to do so, he
enters or remains in any place
as to which notice against trespass is given by: (1) Actual communication to
the actor; or (2) Posting in a manner
prescribed by law or
reasonably likely to come to the
attention of intruders; or (3) Fencing
or other enclosure manifestly designed
to exclude intruders. [N.J.S.A. 2C:18-3(b).]3 This case deals only with the “enters”
portion of the statute, which has no
temporal requirement for a completed trespass.
Provided sufficient notice is given against trespass, even a brief willful entry onto another’s property
may constitute a violation of N.J.S.A.
2C:18-3(b). In contrast, under
the “remains” portion of the statute, a
person who is privileged or licensed to
enter onto property may be prosecuted for defiant trespass if he refuses to leave after he is
told to do so. There, the duration of
the incursion -- how long he “remains”
unwelcome on the property -- is a factor. See, e.g., State v. 3 A
person convicted of a petty disorderly persons offense may be sentenced to a
term of imprisonment not to exceed thirty days. N.J.S.A. 2C:43-8. Slobin, 294 N.J. Super. 154,
156 (App. Div. 1996) (affirming conviction
where defendants “sat at [a] table for a period of forty minutes after being asked to leave and
refused] to do so”); State v. Dargon, 165 N.J. Super. 500,
503-04 (App. Div. 1978) (holding, under
predecessor statute, that although
defendants were permitted entry, “their deliberate and persistent refusal to leave pursuant to the
several requests rendered them willful
trespassers”). The heart of N.J.S.A.
2C:18-3(b) is the notice provision. See
II The New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission § 2C:18-3
cmt. 2, at 212 (1971) (“The theory of
this Section is that where a landowner wishes to assert his right to exclude from open land
and to have the backing of the criminal
law, it is not too much to ask him to
give notice.”). The questions
here are whether Gibson was given “notice
against trespass” in a manner “reasonably likely to come to [his] attention” and in a form so that he
knew that he was not “licensed or
privileged” to set one foot on the curtilage of
Omega’s property or to lean against its porch. N.J.S.A. 2C:18- 3(b).
In other words, did Gibson know -- or for that matter would any reasonable person have known --
that by leaning against the upraised
porch, even momentarily, he would commit
the offense of defiant trespass?
That all depends on whether the “no
loitering” sign in the window overlooking the Community Center’s porch gave sufficient notice to make
a reasonable person aware that even a
slight and brief incursion on the
property was a prosecutable offense.
The Appellate Division expressed the opinion
that “‘no loitering’ is a message sufficient
to convey the same meaning as ‘no
trespassing.’” Gibson, supra, 425 N.J.
Super. at 529. At least in the circumstances of this case, the court
cannot agree with that proposition. As commonly understood, loitering
suggests remaining or lingering in a
location for some indefinite period for no
apparent purpose. See Webster’s
Third International Dictionary 1331
(1981) (defining “loiter” as “2 a : to remain in or near a place in an idle or apparently idle manner:
hang around aimlessly or as if aimlessly
”); The American Heritage Dictionary 740-41 (2d
College ed. 1991) (defining “loiter” as “1. To stand idly about; linger aimlessly. 2.
To proceed slowly or with many
stops. 3. To delay or dawdle”); Black’s Law Dictionary
1027 (9th ed. 2009) (defining
“loitering” as “[t]he criminal offense
of remaining in a certain place (such as a public street) for no apparent reason”). Under the New Jersey Code of Criminal
Justice, a person commits the disorderly
persons offense of “[loitering for [the purpose of illegally using, possessing
or selling controlled substance,”
N.J.S.A. 2C:33-2.1, if “he wanders, remains or
prowls in a public place with the purpose of unlawfully obtaining or distributing” CDS, N.J.S.A.
2C:33-2.1(b)(1). In Camarco v. City of Orange, the Appellate
Division addressed a challenge to the
constitutionality of a municipal loitering
statute that defined loitering as “remaining idle in essentially one location,” “spending time idly loafing or
walking,” and “‘hanging around.’” 116 N.J. Super. 531,
533 (App. Div. 1971), aff’d, 61 N.J. 463
(1972).
See also Chicago v. Morales, 527 U.S. 41, 51 n.14, 119 S.
Ct. 1849, 1856 n.14, (1999) (referencing Chicago ordinance
defining “‘loiter’ to mean ‘to remain in
any one place with no apparent purpose’”).
All of these definitions and applications of loitering convey something more than a temporary or
brief respite at a particular
location. On the other hand, trespass
-- particularly as used in the defiant
trespass statute -- has a distinctly
different meaning. N.J.S.A. 2C:18-3(b)
prohibits the mere entering -- not just
idly remaining -- in a place, when one
is not licensed or privileged to do so.
Unlike loitering, the “enters”
portion of the trespass statute has no temporal
element. It is fair to say,
given the commonly accepted definitions
of loitering, that the “no loitering” sign in the porch window of the
Omega Community Center communicated nothing more than that a person should not be idly remaining or
loafing on its property.4 Through the commonly understood meaning of
loitering and the requirements of the
defiant trespass statute, the court must
judge whether Officer Comegno had probable cause to arrest Gibson.
V.
The central issue is not whether Officer Comegno was authorized to conduct a field inquiry or an
investigative stop of Gibson, but rather
whether he had probable cause to make an
arrest. A. A field inquiry “occurs when a police
officer approaches an individual and
asks ‘if the person is willing to answer some
questions.’” State v. Pineiro, 181 N.J. 13, 20 (2004)
(quoting State v. Nishina, 175 N.J. 502, 510 (2003))
(alteration omitted). So long as the questioning “is not
harassing, 4 Although the court are not dealing with a
loitering statute in this case, it bears mentioning that such statutes have
been subject to constitutional challenge on vagueness grounds. Some loitering
statutes have been notorious for “failing] to provide the kind of notice that
will enable ordinary people to understand what conduct it prohibits” and for “authorizing]
and even encouraging] arbitrary and discriminatory enforcement.” See Morales,
supra, 527 U.S. at 56, 119 S. Ct. at 1859, 144 L. Ed. 2d at 80. overbearing, or
accusatory in nature,” Nishina, supra, 175 N.J.
at 510, and the person is free to refuse to answer and “‘go on his way,’” Florida v. Royer, 460 U.S. 491, 498, 103 S.
Ct. 1319, 1324,
(1983) (citations omitted), the
person’s Fourth Amendment rights are not implicated, ibid. A police officer may conduct an
investigative stop when, “based on
specific and articulable facts,” he has a reasonable suspicion that a person is engaged in criminal
activity. Pineiro, supra, 181 N.J. at 20
(citations omitted). An investigative stop occurs when “a reasonable
person would have believed that he was
not free to leave” and constitutes a
“seizure” under the Fourth Amendment.
United States v. Mendenhall, 100 S.
Ct. 1870, 1877 An officer’s
subjective, good-faith hunch does not
justify an investigatory stop -- even if that hunch proves correct. See State v. Arthur, 149 N.J. 1
, 8 (1997).
The duration of an investigative
stop must be limited in time and scope
to the purpose that justified the stop in the first place. Royer, supra, 460 U.S. at 500, 103 S. Ct. at
1325, 75 L. Ed. 2d at 238. There is no question that Officer Comegno
had the right to ask questions of Gibson
-- that is, to conduct a field inquiry. The
court need not resolve whether Gibson was subject to an investigative stop because the officer placed
him under arrest immediately
after questioning him. The legitimacy
of the stationhouse search depends
simply on whether Officer Comegno had
probable cause to make the arrest.
B.
Both the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey
Constitution provide for “[t]he right of
the people to be secure in their persons
. . . against unreasonable searches and seizures.” In
the absence of probable cause to believe that a person has committed or is committing an offense, an
arrest is an unreasonable seizure in
violation of our Federal and State
Constitutions. See Dangerfield,
supra, 171 N.J. at 455-56. The lawfulness of the arrest in this case depends
on whether Officer Comegno had probable
cause to believe that Gibson had committed
a defiant trespass on the property of the Omega Community Center.
Probable cause has been defined as “a well grounded suspicion that a crime has been or is being
committed,” State v. Sullivan, 169 N.J. 204, 211 (2001) (citation
and internal quotation marks omitted),
and as “a reasonable ground for belief of
guilt,” Brinegar v. United States, 338 U.S. 160, 175, 69 S.
Ct. 1302, 1310, (1949) (citations
and internal quotation marks
omitted). It “is more than a mere suspicion of guilt, [but] less than the
evidence necessary to convict a defendant of a crime in a court of law.” State v.
Basil,
202 N.J.
570
, 585 (2010) (citing Brinegar, supra, 338 U.S. at 175, 69 S. Ct. at 1310, 93 L. Ed. at
1890). It “is a fluid concept -- turning on the assessment of
probabilities in particular factual
contexts” and addresses “‘the factual and
practical considerations of everyday life on which reasonable and prudent men, not legal technicians,
act.’” Illinois v. Gates, 462 U.S. 213, 231-32, 103 S.
Ct. 2317, 2328-29, 76 L. Ed. 2d 527, 544 (1983) (citation omitted). Last, “[in determining whether there was probable cause to make an
arrest, a court must look to the
totality of the circumstances, and view those
circumstances from the standpoint of an objectively reasonable police officer.” Basil, supra, 202 N.J. at 585 (citation
and internal quotations marks
omitted).
C. The default position in our
constitutional jurisprudence is that
warrantless searches are presumptively invalid. State v.
Frankel,
543 U.S.
876(2004), overruled in part by State v. Edmunds,
211 N.J.
117 (2012); see also Kentucky v. King,
563 U.S. __, __, 131 S.
Ct. 1849, 1856, (2011). For that reason, the State bears the burden
of proving by a preponderance of the
evidence that a warrantless search falls
within one of the “‘well-delineated exceptions’ to the warrant requirement” of
the Fourth Amendment and Article I,
Paragraph 7 of our State Constitution. Frankel, supra, 179 N.J. at 598 (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct.
2408, 2412 (1978)).
In this case, the State claims
that the warrantless search of Gibson at the
stationhouse was incident to his arrest. See State v. Moore, 181 N.J. 40, 45 (2004) (citing
Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct.
2034, 2040,
(1969)) (holding that search
incident to arrest is exception to warrant
requirement). The validity of
the search, however, depends on the
constitutionality of the arrest. See
ibid. Therefore, the State bears the burden of showing that
Officer Comegno had probable cause to
make the arrest. At the suppression
hearing, the trial court heard testimony
from Officer Comegno and determined that he had probable cause to arrest Gibson for defiant trespass. Inasmuch as that finding is based on the court’s credibility
assessment of Officer Comegno, the only
witness who testified, it is entitled to
deference -- but not blind deference.
This Court is not obliged to
defer to clearly mistaken findings -- findings that are not supported by sufficient credible evidence in
the record. See State v. Elders,
192 N.J. 224, 245 (2007) (noting
that trial court’s “findings were
entitled to deference unless they were
‘clearly mistaken’ or ‘so wide of the mark’ that the interests of
justice required appellate intervention.” (citing N.J. Div. of Youth & Family Servs. v. M.M.,
42 N.J. 146, 162 (1964) (stating that
aim of appellate review is “to determine
whether the findings made could
reasonably have been reached on sufficient credible evidence present in the record”). Nor is the Court obliged to defer to the ultimate finding of probable
cause when the facts and inferences do
not support that conclusion. For
example, in State ex rel. J.M.,
339 N.J. Super. 244, 256-57 (App. Div. 2001), the Appellate
Division overturned the trial court’s
denial of a motion to suppress because the trial court clearly erred in finding that a police
officer had probable cause to arrest the
defendant for defiant trespass.
In
J.M., one evening, a resident told a police officer that “she was having a problem with people ‘hanging
out’ on her porch and dealing
drugs.” Id. at 246. The officer testified that “the police had received complaints about
trespassers and narcotics activity in
that area” and that he had personally “made arrests at that location.” Id. at 247. That same evening, the officer observed three people on the resident’s
porch, none of whom appeared to be
engaged in criminal activity.
Ibid. The officer spoke with the resident, who advised him that
two of the people on the porch were her
relatives and that she did not know the
third person -- the juvenile defendant. Ibid.
When the officer asked the defendant why he was on the porch, he
responded that he was “hanging
out.” Ibid.
Although the resident did not ask
that the defendant be removed, the officer pointed out to the defendant the “‘no trespassing’ sign in the
window of the house” and arrested him
for defiant trespass. Ibid. A search of the defendant at the police station uncovered
drugs on his person. Ibid. The Appellate Division in J.M. found the
evidence insufficient to support the trial
court’s finding of probable cause to
arrest. Id. at 248. It determined that “it belies common sense that [the defendant] just
wandered off the street to join two
other young people who were not trespassers,” that it was “highly unlikely” that one of the
resident’s relatives had not invited him
to be there, and that the police failed “to
make a good faith evaluation of the circumstances presented . . . before effectuating an
arrest.” Id. at 248-49. Also significant to our analysis is
Dangerfield, supra,
171 N.J. 446. There, the court determined that the State
failed to show that, under the totality
of the circumstances, a detective had a
well-grounded suspicion -- or, in other words, probable cause -- to arrest the defendant for defiant
trespass. Id. at 457. Thus, the court affirmed a suppression motion
because the search was incident to an
unlawful arrest. Id. at 458. In Dangerfield, a police detective observed the defendant
sitting on a bicycle in a public
housing project, where “no trespassing” signs were posted.
Id. at 457. The detective had
encountered the defendant on two
previous occasions, on each of which the
defendant gave a “legitimate and lawful” explanation for his presence.
Ibid. On this occasion, the
defendant saw the detective and another
detective and “rode away on his bicycle.”
Ibid. The detectives stopped the
defendant and questioned him about his
flight. Ibid. He explained that he was “doing nothing.”
Id. at 451. The defendant
was arrested for defiant
trespassing. Ibid.
This Court emphasized that the defendant was never “asked whether he knew or was
visiting anyone at the complex,”
although such questioning was part of established protocol for “approaching suspected
trespassers.” Id. at 457. This Court also pointedly stated that “flight
alone does not create reasonable
suspicion for a stop, let alone probable
cause.” Ibid. (citing State v.
Tucker,
136 N.J. 158, 168-69 (1994)).
Both J.M. and Dangerfield demonstrate that courts carefully assess whether the probable-cause
justification for an arrest for defiant
trespass is supported by the fair inferences that can be drawn from the record. The court now must determine
whether, viewed through the eyes of an
objectively reasonable police officer,
there was sufficient credible evidence to support the arrest of Gibson for defiant trespass. VI.
Even under our deferential standard of review, the court cannot find an objectively reasonable basis for
Gibson’s arrest. At 3:20 a.m., while in his patrol car, Officer
Comegno observed a black male -- whom he
later learned was David Gibson -- leaning
against the upraised porch of the Omega Community Center. In a
window facing the porch was posted a “no loitering” sign. Whether the sign was directed to those who
ventured onto the porch or those
lingering in the outermost part of the property
or curtilage -- or even the sidewalk -- is not evident from the record.
Based on the record, and given the limited time for the officer’s observations, it appears that
Gibson was seen leaning on the porch for
no more than a few moments, and may not have
been standing more than a foot on Omega’s property, before he began walking south on York Street. The State presented no evidence regarding the degree of encroachment
on Omega’s property, whether inches or
feet, or how long the encroachment
lasted, whether seconds or longer.
The State bore the burden of
proving by a preponderance of the evidence that Officer Comegno had probable cause to arrest Gibson. The officer did not see Gibson engaged in
any illegal activity. As soon as the officer saw Gibson, Gibson
moved on. Gibson’s observed conduct
hardly fits the commonly understood meaning of loitering -- remaining in a
place in an idle manner, hanging around,
lingering aimlessly, or loafing.
Although Officer Comegno was driving south in the same direction in which Gibson was walking, he did
not stop Gibson immediately. Instead, he drove around the block and
intercepted Gibson after Gibson had
walked the length of York between Jones
Avenue and Green Street. Gibson
did not take flight, or dart between
buildings, after he spotted the patrol car.
No one can quarrel with the officer’s decision to approach Gibson and ask him some questions. Gibson identified himself and stated that he had been visiting his
child’s mother, who lived two blocks
north of the Omega Community Center, and that
he had been “waiting for a ride.”
Although Officer Comegno claimed
that Gibson was “evasive” and looked as though he might “run,” he gave no factual support for those
subjective feelings. The officer cited,
as one basis for making the arrest, Gibson’s
failure to give “lawful reasons” for leaning on the porch, but Gibson explained why he was on the street at
that hour. The court accept the trial court’s credibility
findings concerning Officer Comegno’s
testimony. The court accept that the
Omega Community Center is located in a
high-crime area and that the Community
Center’s president had asked the police to make checks because there had been incidents of criminal
mischief. The court cannot accept, however, the inferences drawn by
the officer because they are not
objectively reasonable. The
constitutional right to be free from arbitrary arrest is not suspended in high-crime neighborhoods
where ordinary citizens live and walk at
all hours of the day and night.
Momentarily leaning against a building, or an upraised porch, on a city block, would not be considered
loitering to an objectively reasonable citizen. That would be so even if the passerby was standing a foot or two on the
curtilage of the building’s property. If Gibson was not loitering, as the term
is conventionally understood, then how
could Officer Comegno have formed a well-
grounded suspicion that Gibson was defiantly trespassing on Omega’s property? As the court explained earlier, trespass
and loitering are terms with distinctly
different meanings. The notice on the Omega property did not suggest
that leaning on the porch for a very
brief period would subject the offender to a
defiant trespass prosecution.
The “notice against trespass” had
to be communicated in a manner that would have made a reasonable person aware that setting even a foot on the
curtilage or leaning against the porch
was unlawful. N.J.S.A.
2C:18-3(b). It bears mentioning that
the trial court, in reciting its factual
findings, mistakenly referred to a “no trespassing” sign in the porch window. The court do not know whether this was a slip
of
the tongue or a mistaken belief that may have affected the resulting legal conclusion. Nevertheless, this error ultimately is of little moment in our analysis. The court do not suggest that a “notice
against trespass” must be phrased in
some talismanic form. There are a
multitude of ways in which the message
can be conveyed. Had Gibson
remained idly leaning on the porch for
an extended period of time, perhaps
Gibson’s conduct would have had the appearance of loitering, and Officer Comegno might then have had a
reasonable suspicion of defiant
trespassing. But that is not the case
here. The State argues that Gibson’s
walking away from the Omega Community
Center gave rise to reasonable suspicion on the part of Officer Comegno. But had he remained where he had stood Gibson surely would have been loitering. This type of Catch-22 scenario cannot support a probable cause
determination. Even flight, standing alone, will not support a
well-grounded suspicion for a defiant
trespass arrest. See
Dangerfield, supra, 171 N.J. at 457. The defiant trespass statute cannot be
used as an instrument for random stops
and arrests. That was made clear in both Dangerfield and J.M. The State had the burden of justifying the warrantless arrest in this
case. The court must view the propriety of Officer Comegno’s actions
through the lens of the objectively
reasonable police officer. The
court conclude that even under
the deferential standard that guides appellate
review, the State has failed to show that Officer Comegno had probable cause to arrest Gibson for defiant
trespass. In short, there is insufficient evidence in the record
to support a finding of probable
cause. The search at headquarters
cannot stand because it was incident to
an unconstitutional seizure. See State
v. Badessa,
, 416, 9 L.
Ed. 2d 441, 454 (1963)).
For that reason, the court are compelled
to suppress the fruits of that
search. The court need not reach
Gibson’s second argument: that he
should have been given the opportunity
to post bail before the stationhouse
search. However, the court do not
hesitate to offer that once an officer
lawfully arrests a suspect, he has the right and duty to search him for weapons and contraband
before placing him in a patrol car. See Chimel, supra, 395 U.S. at 762-63, 89
S. Ct. at 2040, 23 L. Ed. 2d at
694. It also follows that the police have the authority to ensure, at
headquarters, that a person under arrest
is not armed with a weapon.
VII. For the reasons given, the court reverse
the judgment of the Appellate Division
and suppress the evidence seized during the
stationhouse search. The court remand
for proceedings consistent with this
opinion. CHIEF JUSTICE RABNER,
JUSTICES LaVECCHIA and PATTERSON, and JUDGES RODRÍGUEZ and CUFF (both
temporarily assigned) join in JUSTICE ALBIN’s opinion.
SUPREME COURT OF NEW JERSEY NO.
A-27 SEPTEMBER
TERM 2012 ON CERTIFICATION TO Appellate Division, Superior
Court STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID M. GIBSON, Defendant-Appellant. DECIDED January 7, 2014 Chief Justice Rabner PRESIDING OPINION BY Justice Albin CONCURRING/DISSENTING
OPINIONS BY DISSENTING OPINION BY REVERSE AND
CHECKLIST
REMAND CHIEF JUSTICE RABNER X JUSTICE LaVECCHIA X JUSTICE ALBIN X JUSTICE PATTERSON X JUDGE RODRÍGUEZ (t/a) X JUDGE CUFF (t/a) X TOTALS 6
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