State v. Sheffield

303 A.2d 68, 62 N.J. 441, 1973 N.J. LEXIS 258

Opinions

The opinion of the court was delivered by

Sullivan, J.

This appeal involves the issue of whether a police officer has the right in appropriate circumstances to seek to question a person on the street about possible criminal behavior, even though the officer has no probable cause to make an arrest.

Defendant was convicted of the unlawful possession of heroin and was sentenced to two years probation and fined. On appeal, the Appellate Division reversed the conviction on the ground that defendant’s pretrial motion to suppress the evidence consisting of 14 decks of heroin seized at the time of his arrest should have been granted. The court held that it did not find in the evidence adduced on the motion hearing “the existence of such ffiighly suspicious’ activities on defendant’s part as would justify the police in stopping and questioning him in the manner that they did.” We granted the State’s petition for certification. 62 N. J. 188 (1972).

Since this case turns on the facts surrounding defendant’s apprehension and the seizure of the 14 decks of heroin, a summary of the evidence presented at the hearing on the motion to suppress is in order.

The only witness called by the State was Detective Gordon El, a member of the Newark Narcotics Squad.

El testified that on Eebruary 2, 1971, at about 3:30 p.m., he was on duty with Detectives McNulty and Delaney. The officers were in an unmarked squad car and were wearing regular street clothes. While patrolling on 15th Avenue near Bruce Street in Newark, a narcotics area, El observed defendant “a known narcotics’ pusher and dealer” whom El had previously arrested on a narcotics charge and whom El described as “card carrying.”

Footnotes

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* El had seen defendant in the area on some 40 occasions.

As the car approached defendant, who was walking along the street, El called him by name over to the car. Defendant did not respond and started to walk quickly in the opposite direction towards a tavern. (El said that defendant knew who the officers were.)

The officer got out of the car and went after defendant again calling him by name. When he was about two feet in back of defendant, El saw defendant put his right hand to his mouth. (El said that based on his experience on the narcotics squad defendant’s gesture indicated he was attempting to conceal narcotics evidence.) Just as El caught up with defendant, defendant turned and pushed the detective away. El then attempted to arrest defendant for assault. A struggle ensued during the course of which defendant fell to the ground and 14 decks of heroin wrapped with a rubber band fell out of defendant’s mouth.

On cross-examination El clarified his testimony about having previously arrested defendant on a narcotics charge by admitting that he had not arrested defendant himself, but had been present when defendant was arrested by another officer.

Defendant did not testify. The only evidence he offered was his arrest record maintained by the Newark Police Department. This record did not show a prior narcotics arrest.

The trial court found it unnecessary to decide whether Detective El was mistaken in his testimony as to defendant’s prior narcotics arrest or whether the Newark arrest record was not complete. The court was satisfied that defendant was known to the officer who, under the circum stances, had the right to question defendant and when defendant turned away and made a gesture to his mouth the officer had probable- cause to suspect criminal activity on defendant’s part.

As heretofore noted, the Appellate Division held that the circumstances were not such as to justify the police attempt to stop and question defendant. Accordingly, it ordered the heroin evidence suppressed, apparently on the basis it was the “fruit” of illegal police action. Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

We disagree. A narcotics officer is especially qualified to detect traffic in narcotic drugs. He learns through experience how to spot an addict or pusher, how an addict or pusher acts and reacts, and where the areas of narcotics activity are. When an officer applies his expertise in a narcotics situation, it should not be given grudging recognition when assaying the existence of cause to take police action.

Here the trial court’s findings were supported by credible proofs. It accepted Detective El’s testimony that he knew defendant. This was a narcotics area. El had seen defendant in the area on some 40 prior occasions. Defendant was a known narcotics pusher and dealer according to the officer. While the record does not indicate why El called defendant over to the car, it is reasonable to assume that he wanted to question defendant on the subject of narcotics. In view of defendant’s 'known background, this was not unreasonable police action. There was no indication that defendant was to be detained.

Defendant responded to being called by name by walking rapidly away. The officer said that defendant knew who the officers were. This is confirmed by defendant’s own conduct, his walking away and the actual placing of the heroin in his mouth. This furtive attempt to conceal the drug supports El’s testimony that defendant knew the men in the car were police officers.

After defendant started walking away El got out of the ear and went after him. It was while El was trying to catch up with defendant that the officer saw him make a gesture to his mouth with his right hand. Defendant was not under any kind of police restraint at the time this act, highly suspicious to the experienced narcotics officer, was committed by defendant. At this point El had probable cause to arrest defendant. However, as we have mentioned above, the officer did not attempt to make an arrest until after defendant turned and pushed the officer away.

This is not a stop-and-frisk situation such as was considered in State v. Dilley, 49 N. J. 460 (1967). As far as the record shows the officer intended merely to question defendant. There is nothing illegal in this. The concurring opinion of Mr. Justice White in Terry v. Ohio, 392 U. S. 1, 34, 88 S. Ct. 1868, 1886, 20 L. Ed. 2d 889, 913 (1968), also a stop-and-frisk ease, states:

“There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. * * * Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.”

The Appellate Division went wide of the mark when it limited the right of a police officer to question a person to a situation involving “highly suspicious activities.” A police officer charged with the duty of crime prevention and detection and protection of the public safety must deal with a rich diversity of street encounters with citizens. In a given situation, even though a citizen’s behavior does not reach the level of “highly suspicious activities,” the officer’s experience may indicate that some investigation is in order. Depending on the circumstances, street interrogation may be most reasonable and proper. Adams v. Williams, 407 U. S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612, 616-617 (1972).

This is not to say that a court, while recognizing the need for effective crime prevention and detection, should not be vigilant to strike down an abuse of the street questioning of a citizen by the police. However, there is no indication that the conduct of the officer in attempting to question defendant was overbearing or harassing in nature. As noted in the majority opinion in Terry v. Ohio, supra, 392 U. S. at 22, 88 S. Ct. at 1880, 20 L. Ed. 2d 906-907.

“* * * a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.”

The dissent herein is bottomed on the assumption that field interrogation by a police officer usually involves a “detention” of the person and has Eourth Amendment implications. The dissent, therefore, would limit such interrogation to a situation where the officer has “a reasonable suspicion of criminal activity.” This would practically require an officer to have grounds for an arrest before he could interrogate a person on the street, a test specifically rejected by the Supreme Court in Terry. Our conclusion is that mere field interrogation, without more, by a police officer does not involve “detention” in the constitutional sense so long as the officer does not deny the individual the right to move. Nor, if the dissent so intends, could we accept the view that whenever a police officer, without some suspicion of criminal activity, approaches an individual to ask him a question, there is a constitutional wrong which would require the suppression of contraband which the individual discards in response to the approach of the officer.

We conclude that there was nothing improper in Detective El’s seeking to question defendant. Defendant’s furtive conduct thereafter, including his motion towards his mouth, gave El probable cause to suspect criminal activity on defendant’s part. The resultant seizure of the 14 decks of heroin after it fell out of defendant’s mouth was not the “fruit” of illegal police activity.

The judgment of the Appellate Division is reversed and the judgment of conviction is hereby reinstated.

See N. J. 8. A. 2A :169A-1 et seq. Repealed L. 1971, e. 231 § 1. Effi. June 23, 1971.