State ex rel. H. B.

381 A.2d 759, 75 N.J. 243, 1977 N.J. LEXIS 275

• Court: Supreme Court of New Jersey
• Decided: December 2, 1977
• Status: Published

Opinions

The opinion of the court was delivered by

Hughes, C. J.

The appellant was adjudicated a juvenile delinquent for possession of a revolver in violation of N. J. 8. A. 2A:151-41, an offense which, had he been an adult, would have constituted a high misdemeanor. His appeal, here as of right under B. 2:2-1 (a) (2), challenges the majority decision of the Appellate Division upholding that adjudication after approving the trial court denial of the motion to suppress evidence on which it depended.

The sound opinion of the majority, which we affirm and specifically adopt and incorporate herein, would ordinarily suffice without more. We deem some added discussion necessary, if only to emphasize the need for a realistic State approach to the dangers presented by the modern proliferation of handguns in the possession of millions of citizens including, of course, many violent criminals. The fact and relevance of this phenomenon were noted by Chief Justice Warren in the landmark case of Terry v. Ohio, 392 U. S. 1, 23-24, 88 S. Ct. 1868, 1881, 20 L. Ed. 2d 889, 907 (1968):

American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.

Continuing in a footnote, the Chief Justice mentioned:

Fifty-seven law enforcement officers were killed in the line of duty in this country in 1966, bringing the total to 335 for the seven-year period beginning with 1960. Also in 1966, there were 23,851 assaults on police officers, 9,113 of which resulted in injuries to the policemen. Fifty-five of the 57 officers killed in 1966 died from gunshot wounds, 41 of them inflicted by handguns easily secreted about the person. * * * See Federal Bureau of Investigation, Uniform Crime Reports for the United States — 1966, at 45-48, 152 and Table 51.

The easy availability of firearms to potential criminals in this country is well known and has provoked much debate. See e. g., President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 239-243 (1967). Whatever the merits of gun-control proposals, this fact is relevant to an assessment of the need for some form of self-protective search power. [392 U. S. at 24 n. 21, 88 S. Ct. at 1881, 20 L. Ed. 2d at 907].

There are projected to be no less than 40 million handguns in circulation in this country today, with about 2.5 million being added to that pool each year. United States Conference of Mayors, National Forum on Handgun Control Proceedings at 6 (forum in Los Angeles, Ca. May 27-29, 1975).

This volatile mixture, of violence and the surfeit of handguns which is its primary co-efficient, presents much danger to law-abiding society and a particular threat to the uniformed law enforcement community which is so frequently its target. This astounding situation is a factor which cannot be ignored in considering the constitutionality of the police conduct here involved.

The danger is particularly acute in an urban community such as the City of Newark, where this case arose. The Eisenhower Commission found that in large United States cities handguns assisted in 86 percent of all aggravated assaults committed with guns, 92 percent of homicides by gunfire and 96 percent of robberies committed with guns. National Commission on the Causes and Prevention' of Violence, To Hstablish Justice, To Insure Domestic Tranquility xxvi .(1969). And while a few states, including New Jersey, have strong and strictly enforced gun control laws, N. J. S. A. 2A:151-32 et seq.; N. J. S. A. 2A:151-41 et seq., their effectiveness is limited because in many states gun controls are virtually non-existent or largely ignored. As of 1971, eight states had no law against felons buying firearms, and in 35 states mentally ill persons could legally own guns. Comment, "Shooting to Kill the Handgun: Time to Martyr Another American 'Hero’,” 51 J. Urban Law 491, 512 (1974).

New Jersey, highly congested and with its share of crime and its causes, is no stranger to this national malady. Twenty-four police officers were killed by guns in this State during the ten year period ending in 1976. During 1976, there were a record five New Jersey police officers killed and 3,903 assaulted in the line of duty. Of every 100 municipal police officers, 21.5 were assaulted during 1976. New Jersey State Police, Uniform Crime Reports for the State of New Jersey — 1976, at iv. The State Police Superintendent reports that since 1971, 21,719 guns have been delivered to him for destruction, by police officials and prosecutors. These weapons were seized as a result of illegal use or possession, the vast majority having been used in the perpetration of a crime.

Such continuing trends would make even more relevant today the prophetic warning of the United States Supreme Court in Terry v. Ohio, supra, dealing with police exposure and apprehension of harm:

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. * * *

* * * [W]e cannot blind ourselves to the need for law enforcement officers to protect themselves' and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. [392 U. S. at 23-24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 907-08].

The Chief Justice went on to say:

A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U. S. 294, 310, 87 S. Ct. 1642, 1652, 18 L. Ed. 2d 782, 794 (1967) (Mr. Justice Fortas, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a “full” search, even though it remains a serious intrusion.

* * * The protective search for weapons * * * constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person. It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime. * * *

Our evaluation of the proper balance that has to be struck * * * leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the cireumstanoes would be warranted in the belief that his safety or that of others was in danger. [Id. at 25-27, 88 S. Ct. at 1882-83, 20 L. Ed. 2d at 908-09 (emphasis added)].

Accepting these rules as representing bedrock constitutional law, it remains to apply them to the factual base as stated by the Appellate Division:

On December 16, 1974 Patrolman Finn of the Newark Police was on duty in a radio car when he received a radio dispatch from police headquarters that a black individual wearing a black hat, black leather coat and checkered pants was in Bay’s Luncheonette at 407 South Orange Avenue with a gun in his possession.

Officer Finn and his partner proceeded to the location. As Finn entered the front door he saw approximately 15 persons in the luncheonette. He also observed a black man with a black hat, black leather coat, checkered pants and sneakers seated in a rear booth with three girls.

He thereupon walked up to the booth and told the male occupant, identified as defendant, to stand and put his hands on the wall. Finn then patted him down or frisked him, and as he was doing so he felt an object in the right hand coat pocket which felt like a gun. He reached into the pocket and removed a .32 caliber revolver. [139 N. J. Super, at 465].

We will assume in the absence of evidence to the contrary that the information in the radio dispatch from police headquarters was based upon no more than an anonymous “tip.” The record does establish, however, that the description therein of H.B.’s person and clothing was found to be precisely accurate; that none other of the 15 males in the luncheonette was similarly dressed or “fitted the description”; that there was nothing unusual (or suspicious in the Terry sense) in H.B.’s conduct; but that Officer Pinn, and presumably his partner, were in full uniform when they entered the premises. We regard this last fact as highly significant to the reasonableness of the conduct of the officers, in view of their exposure to risk in this somewhat crowded place, from a supposed “man with a gun.”

The “informer reliability” demanded by Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1968) and Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) is not a prerequisite here. We are not concerned in this case with a “full blown search” as mentioned in the dissent filed in the Appellate Division, but rather with the brief and limited self-protective intrusion described in Terry.

There is some verification factor in the very accuracy of the informer’s description. Although the informer in Draper v. United States, 358 U. S. 307, 309, 79 S. Ct. 329, 331, 3 L. Ed. 2d 327, 330 (1959), was known and reliable, the Court attached significance to the appearance, at the placé predicted, of a “person, having the exact physical attributes and wearing the precise clothing described * *

In reaching its conclusion that the limited intrusion in the present case was amply justified, the majority below cited People v. Taggart, 20 N. Y. 2d 335, 283 N. Y. S. 2d 1, 229 N. E. 2d 581 (Ct. App. 1967), appeal dismissed, 392 U. S. 667, 88 S. Ct. 2317, 20 L. Ed. 2d 1360 .(1968). There the Court of Appeals was dealing with a gun possession case based on a “stop and frisk” by a detective who had been alerted by an anonymous telephone call. The court gave evidential weight to the matching of the description:

As Delaney testified, the description of defendant given to him by the informer matched “perfectly” with his own observations. To that extent, then, the information was correct, and this substantiation justified Delaney’s suspicion that the remainder of the information might also be correct. In acting upon this assumption, Delaney was “exercising a reasonable and necessary police power fop the prevention of crime and the preservation of the public order” — a power which was recognized at common law * * * [283 N. Y. S. 2d at 5, 229 N. E. 2d at 584].

The Taggart court believed, as we do in the circumstances of the present case, that “for the police to have ignored the information received is not an acceptable thesis, despite the anonymity and, therefore, the undetermined reliability of the source.” 283 N. Y. S. 2d at 6, 229 N. E. 2d at 584. We think that the police here would have been derelict in the performance of their duties had they not made such a limited weapons search.

Appellant urges that People v. La Pene, 40 N. Y. 2d 210, 386 N. Y. S. 2d 375, 352 N. E. 2d 562 (Ct. App. 1976) and People v. Wynn, 54 A. D. 2d 366, 388 N. Y. S. 2d 922 (App. Dir. 1976), decided subsequent to the decision of the Appellate Division in this case, overrule Taggart sub silentio. We find nothing in either case to warrant rejection of the reasoning in Taggart. The “precipitate frisk” in La Pene was based on information “couched in vague and general terms” (black man in red shirt); no attempt was made to ascertain whether others present fit this description; and the court specifically found no “exigency” justifying a limited protective frisk. In Wynn also the information was ambiguous, concerning a man walking on the street “possibly armed with a gun,” there being “no report that the man had a gun.” 388 N. Y. S. 2d at 925. Although the court in Wynn also noted the absence of any indication that any such gun had been used in the commission of a crime, we specifically reject this factor as not important in the circumstances of the present case, in the face of the handgun crisis we have described and its immediate threat of violence to society in general and to uniformed police officers in particular. We deem La Pene and Wynn of no aid to appellant.

As to People v. Stewart, 41 N. Y. 2d 65, 390 N. Y. S. 2d 870, 359 N. E. 2d 379 (Ct. App. 1976) and People v. McLaurin, 56 A. D. 2d 80, 392 N. Y. S. 2d 1 (App. Div. 1977), however these cases may be considered as eroding the authority of Taggart, they are yet distinguishable from the facts.here, if only because of the comparative vulnerability of the policemen involved, a factor we deem highly relevant to the justification of the police conduct.

The concept of exigency is important in this type of case. As Justice Brennan stated in Warden v. Hayden, 387 U. S. 294, 87 3. Ct. 1642, 18 L. Ed. 2d 782 (1967): «The Pourth Amendment does not require police officers to delay in the course of an investigation if to do so would endanger their lives or the lives of others.” Id. at 289-90, 87 S. Ct. at 1646, 18 L. Ed. 2d at 787.

• [2] The thread of logic in these cases projects the element of «reasonableness” as justifying the limited intrusion described by Justice Jacobs for this Court in State v. Billey, 49 N. J. 460 ,(1967). He recalled the Terry rationale that «the officer who frisks a person he considers dangerous does so, not because he is seeking evidence, but because he wants to-protect himself.” Id. at 469.

Reasonable suspicion «involves a significantly lower degree of objective evidentiary justification than does probable cause to arrest.” Survey of the 1973 Supreme Court Term, 27 Rutgers L. Rev. 465, 579 (1974). We have no doubt that such degree of reasonable justification existed in the case before us, for we believe with the Appellate Division here that:

Where a weapon or explosive is involved it would be folly to say that the police should be compelled to ignore information, though from an anonymous source, and do nothing to protect the public under penalty of the suppression of evidence if they do what their duty reasonably demands.

By the same token, we intend our decision here, justifying a protective frisk, to be narrow enough to be understood as comprehending only such lethal material, vis-a-vis gambling paraphernalia or narcotic contraband, for instance, although they too would evidence criminal activity. We would not include in the thrust of this opinion material such as the glassine envelopes containing heroin which were discovered in the search dealt with in In re State in the Interest of D.S., 63 N. J. 541 (1973).

To the end of such emphasis we repeat and adopt the language of the Appellate Division:

[T]he principles applied herein are viable only in cases where the frisk or search is essential for the protection of life and limb of the police officer and exposed members of the public. It is this present danger which cloaks such police action with the reasonableness required by the Fourth Amendment.

While this Court has not been reticent in going beyond naked constitutional right as defined by the United States Supreme Court,¹ we think we should not so act in the circumstances here. To do so in the face of the violent climate of the times and the universal threat of handguns, particularly to the policeman as he carries out official duties, would seem foolhardy and wrong, and needlessly expose society and the police community to serious risk of death or injury.

We are therefore content with the sensitive and sensible balancing of constitutional imperatives enunciated by Chief Justice Warren in Terry v. Ohio, supra. We conclude that the police action here was justified and that the motion to suppress was rightly denied.

Affirmed.

1 State v. Deatore, 70 N. J. 100 (1976); State v. Johnson, 68 N. J. 349 (1975); Avant v. Clifford, 67 N. J. 496 (1975); Donaldson v. Board of Ed. of No. Wildwood, 65 N. J. 236 (1974); Rodriguez v. Rosenblatt, 58 N. J. 281 (1971); Monks v. New Jersey State Parole Bd., 58 N. J. 238 (1971); cf. White v. Parole Board, 17 N. J. Super. 580 (App. Div. 1952).