State v. Lurdes Rosario (077420) (Monmouth and Statewide) , 229 N.J. 263 ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Lurdes Rosario (A-91-15) (077420)
Argued February 28, 2017 -- Decided June 6, 2017
LaVecchia, J., writing for the Court.
In this appeal, the Court addresses whether and at what point defendant’s interaction with the police officer
escalated from a field inquiry into an investigative detention. The Court then assesses whether reasonable
articulable suspicion supported the detention’s restriction on defendant’s freedom of movement.
The Colts Neck Police Department received an anonymous tip, on April 27, 2013, that defendant Lurdes
Rosario was selling heroin from her home, located in a residential development known as “the Grande,” as well as
out of her “older burg[undy] Chevy Lumina.” On May 1, 2013, at about 11:30 p.m., Officer Campan was patrolling
in the Grande, and his attention was drawn to a moving silhouette in a parked burgundy Chevy Lumina.
Campan testified that he pulled up and parked his patrol car seven to ten feet behind defendant’s vehicle
and at a perpendicular angle. The cruiser’s positioning blocked in defendant’s car. Campan turned on the patrol
car’s rooftop, right alley light aimed at the parked vehicle, but not the siren or emergency lights. The alley light
revealed a woman sitting in the driver’s seat of the Lumina. Campan testified that the woman, later identified as
defendant, looked back at him and then leaned toward the passenger’s seat and was “scuffling around” with
something there. He exited his car and approached her vehicle, going directly to the driver’s-side door. Finding the
driver’s window half-open, he addressed defendant by asking for “identification and driver’s license.” After she
produced them, he recognized her as the subject of the anonymous tip. Campan testified that he also recalled, at that
moment, that he had arrested defendant on drug-related charges approximately six months earlier.
Campan asked defendant what she was doing, and she replied that she was smoking a cigarette. Campan
testified that he did not observe a cigarette or cigarette butt. Campan asked her why she began to scuffle around the
passenger-seat area when he pulled his car up behind hers. Defendant replied that she had been applying makeup
and was putting it away in her purse. When Campan asked how she could apply makeup in the dark, she did not
reply. Campan then asked defendant whether there was “anything he should know about” in the vehicle. According
to Campan, defendant responded by stating something along the lines of “yes . . . it’s the same thing you arrested me
for before in the past.” Then, according to Campan, defendant, unprompted, reached over to the passenger seat and
produced an eyeglass case. Defendant opened the eyeglass case and Capman observed a white powdery substance
that he identified as drugs. Campan ordered defendant out of the vehicle and placed her under arrest.
Defendant was charged with third-degree possession of a controlled dangerous substance. The motion
court denied defendant’s motion to suppress, concluding that the encounter did not escalate into an investigatory
stop until Campan asked defendant whether she had anything in the car he should know about. By that point, the
court found, the brief detention was supported by the officer’s reasonable and articulable suspicion due to
defendant’s implausible responses to the officer’s questions and his prior knowledge of her criminal activity. The
court also rejected defendant’s Miranda argument, determining that defendant voluntarily relinquished the drugs,
volunteered statements to the officer, and was not in custody prior to her arrest. Defendant pled guilty. The
Appellate Division affirmed, and the Court granted defendant’s petition for certification, 227 N.J. 22 (2016).
HELD: Defendant was faced with an investigative detention once the officer blocked in her vehicle, directed the patrol
car’s alley light to shine into her car, and then approached her driver’s-side window to address her. Under the totality
of the circumstances, a reasonable person would feel the constraints on her freedom of movement from having become
the focus of law enforcement attention. Accordingly, an investigative detention had begun. Reasonable articulable
suspicion did not ripen prior to the officer’s subsequent exchanges with defendant.
1. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated.” U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Warrantless searches and
seizures presumptively violate those protections, but not all police-citizen encounters constitute searches or seizures
for purposes of the warrant requirement. (p. 9)
2. Three categories of encounters with police have been identified by the courts: (1) field inquiry; (2) investigative
detention; and (3) arrest. The test of a field inquiry is whether a defendant, under all of the attendant circumstances,
reasonably believed he could walk away without answering any of the officer’s questions. In contrast to a field
inquiry, an investigative detention, also called a Terry stop or an investigatory stop, occurs during a police encounter
when an objectively reasonable person would feel that his or her right to move has been restricted. Because an
investigative detention is a temporary seizure that restricts a person’s movement, it must be based on an officer’s
reasonable and particularized suspicion that an individual has just engaged in, or was about to engage in, criminal
activity. An arrest requires probable cause and generally is supported through an arrest warrant or by demonstration
of grounds that would have justified one. (pp. 9-11)
3. The key issue in this case lies in the distinction between a field inquiry and an investigative detention. The
difference between a field inquiry and an investigative detention always comes down to whether an objectively
reasonable person would have felt free to leave or terminate the encounter with police. The encounter is measured
from a defendant’s perspective. (p. 11)
4. A person sitting in a lawfully parked car outside her home who suddenly finds herself blocked in by a patrol car
that shines a flood light into the vehicle, only to have the officer exit his marked car and approach the driver’s side
of the vehicle, would not reasonably feel free to leave. Here, the officer immediately asked for defendant’s
identification. Although not determinative, that fact only reinforces that this was an investigative detention. It
defies typical human experience to believe that one who is ordered to produce identification in such circumstances
would feel free to leave. That conduct is not a garden-variety, non-intrusive, conversational interaction between an
officer and an individual. (pp. 11-16)
5. Because it was an investigative detention from the point that Campan took those directed actions toward
defendant, the Court must consider whether, based on a totality of the circumstances, the encounter was “justified at
its inception” by a reasonable and articulable suspicion of criminal activity. An anonymous tip, standing alone,
inherently lacks the reliability necessary to support reasonable suspicion. Mere furtive gestures of an occupant of an
automobile do not give rise to an articulable suspicion suggesting criminal activity. The suspicious behavior
identified by the State in defendant’s later responses to Campan’s questioning occurred after the investigative
detention had begun. Neither those responses, nor her blurted-out incriminatory statements, nor the surrendered
contraband can be used, post hoc, to establish the reasonable and articulable suspicion required at the outset of the
investigative detention that here began earlier in time. (pp. 16-18)
6. Reasonable articulable suspicion was not present when this investigative detention began. Therefore, the
statements and evidence obtained thereafter must be suppressed, and it is unnecessary to address the Miranda
arguments advanced by the parties. (p. 18)
The judgment of the Appellate Division is REVERSED.
JUSTICE SOLOMON, DISSENTING, agrees with the majority that the encounter did not implicate
Miranda, but views New Jersey jurisprudence to mandate a different holding as to when the encounter became an
investigative detention and concludes that the interaction evolved from a field inquiry into an investigative detention
when Campan asked whether there was anything in the vehicle he should know about. In Justice Solomon’s view,
the detention was lawful and the trial court properly denied defendant’s motion to suppress. The majority’s holding
unreasonably and unnecessarily limits an officer’s ability to explore a suspicious scenario and ensure that the
community and officers are safe, and no crime is being committed, according to Justice Solomon.
CHIEF JUSTICE RABNER and JUSTICES ALBIN and TIMPONE join in JUSTICE LaVECCHIA’s
opinion. JUSTICE SOLOMON filed a separate, dissenting opinion, in which JUSTICES PATTERSON and
FERNANDEZ-VINA join.
2
SUPREME COURT OF NEW JERSEY
A-91 September Term 2015
077420
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LURDES ROSARIO,
Defendant-Appellant.
Argued February 28, 2017 – Decided June 6, 2017
On certification to the Superior Court,
Appellate Division.
Laura B. Lasota, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Al Glimis, Assistant Deputy Public
Defender, on the brief).
Monica do Outeiro, Assistant Prosecutor,
argued the cause for respondent (Christopher
J. Gramiccioni, Monmouth County Prosecutor,
attorney; Paul H. Heinzel, Special Deputy
Attorney General/Acting Assistant
Prosecutor, of counsel; Mark W. Morris,
Legal Assistant, on the brief).
Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Edward L. Barocas, Legal
Director, attorney; Mr. Shalom, Mr. Barocas,
Ronald K. Chen, Jeanne LoCicero, and Andrew
Gimigliano, attorney of counsel, on the
brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
1
Defendant Lurdes Rosario pled guilty to third-degree
possession of a controlled dangerous substance. She appealed,
claiming error in the trial court’s denial of her motion to
suppress contraband found in her possession and statements that
she made during her encounter with a Colts Neck police officer.
After defendant’s unsuccessful appeal to the Appellate Division,
we agreed to review her suppression issues.
First and foremost, we must address whether and at what
point defendant’s interaction with the police officer escalated
from a field inquiry into an investigative detention. Then we
must assess whether reasonable and articulable suspicion
supported the detention’s restriction on defendant’s freedom of
movement.
The encounter took place on a May evening when defendant
was in her car, which was parked lawfully, head-on in a lined
parking space directly outside her apartment. The car’s engine
was off. The officer positioned his patrol car perpendicularly
behind defendant’s to box in defendant’s car and engaged his
vehicle’s rooftop, right-side “alley” light to shine at her car.
The officer then exited his patrol car and approached the
driver’s-side door of defendant’s car to address her. We
conclude that no objectively reasonable person in those
circumstances would have felt free to leave. Under the totality
of the circumstances, a reasonable person would feel the
2
constraints on her freedom of movement from having become the
focus of law enforcement attention. Accordingly, we hold that
an investigative detention had begun.
Because we also conclude that reasonable and articulable
suspicion did not ripen prior to the officer’s subsequent
exchanges with defendant, we reverse the judgment under review.
I.
The facts as presented are derived from the testimony at
the suppression hearing. Officer Gabriel Campan of the Colts
Neck Police Department was the only witness to testify.
The officer explained that, before he encountered defendant
in her car, the police had received an anonymous tip, on April
27, 2013, that defendant was selling heroin from her home at 6
Parker Pass, located in a residential development known as “the
Grande,” as well as out of her “older burg[undy] Chevy Lumina.”
The caller stated that defendant was making trips in the Lumina
to drop off and pick up heroin from an address in Jackson
Township. The officer testified that he became aware of the
tipster’s information through a “patrol notice” shared with
officers at the beginning of each shift on April 27th.
A few days later, on May 1, 2013, at about 11:30 p.m.,
Campan was patrolling in the Grande. Campan testified that he
turned onto Parker Pass and his attention was drawn to a moving
silhouette in a parked burgundy Chevy Lumina. Campan later
3
testified that although he did not make an immediate connection
between the parked car and the anonymous tip that had been
called into the police, he did make that connection when he
realized that the Lumina was parked in front of 6 Parker Pass.
Campan testified that he pulled up and parked his patrol
car seven to ten feet behind defendant’s vehicle and at a
perpendicular angle. The Lumina was parked, front-end forward,
in a space facing a curved curb. As a result, the cruiser’s
positioning blocked in defendant’s car. According to Campan,
because it was dark and neither the lights nor the engine of the
Lumina were activated, he turned on the patrol car’s rooftop,
right alley light aimed at the parked vehicle. He did not turn
on the siren or emergency lights. The alley light revealed a
woman sitting in the driver’s seat of the Lumina. Campan
testified that the woman, later identified as defendant, looked
back at him and then leaned toward the passenger’s seat and was
“scuffling around” with something there.
Campan testified that defendant’s movement in the dark
vehicle made him suspicious. He exited his car and approached
her vehicle, going directly to the driver’s-side door. Finding
the driver’s window half-open, he addressed defendant by asking
for “identification and driver’s license.” After she produced
them, he recognized her as the subject of the anonymous tip.
Campan testified that he also recalled, at that moment, that he
4
had arrested defendant on drug-related charges approximately six
months earlier.
Thereafter, the following exchanges took place.
Campan asked defendant what she was doing, and she replied
that she was smoking a cigarette. Campan testified that he did
not observe a cigarette or cigarette butt.
Campan asked her why she began to scuffle around the
passenger-seat area when he pulled his car up behind hers.
Defendant replied that she had been applying makeup and was
putting it away in her purse. When Campan asked how she could
apply makeup in the dark, she did not reply. He testified that
he did not think her story made sense.
Campan then asked defendant whether there was “anything he
should know about” in the vehicle. Campan testified that the
question was intended to refer to anything illegal that might be
in the car.
According to Campan, defendant responded by stating
something along the lines of “yes . . . it’s the same thing you
arrested me [for] before in the past.” Then, according to
Campan, defendant, unprompted, reached over to the passenger
seat and pulled out a mitten from which she produced an eyeglass
case. Defendant opened the eyeglass case and Campan observed a
white powdery substance that he identified as drugs -- either
5
cocaine or heroin -- and drug paraphernalia. Campan ordered
defendant out of the vehicle and placed her under arrest.
Defendant was charged with third-degree possession of a
controlled dangerous substance, in violation of N.J.S.A. 2C:35-
10(a)(1). At the April 3, 2014, suppression hearing, defense
counsel argued that Campan’s encounter with defendant was from
the outset an investigatory stop unsupported by reasonable and
articulable suspicion. The defense also argued that defendant
was in custody and entitled to Miranda1 warnings when Campan
began to question her and that her statements were involuntary.
The State argued that the entire encounter was a field inquiry,
or alternatively, that if the encounter had escalated to an
investigative detention when Campan asked whether defendant had
anything he should know about, the officer had reasonable and
articulable suspicion of criminal activity. The State also
maintained that no custodial interrogation took place
implicating the requirement of Miranda warnings and that
defendant’s statements were voluntary.
The motion court denied defendant’s motion to suppress,
concluding that the encounter did not escalate into an
investigatory stop until Campan asked defendant whether she had
anything in the car he should know about, insinuating that
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
6
defendant might have contraband in her possession. By that
point, the court found, the brief detention was supported by the
officer’s reasonable and articulable suspicion due to
defendant’s implausible responses to the officer’s questions and
his prior knowledge of her criminal activity. Notably, the
court did not rely on the uncorroborated anonymous tip to
support its finding of reasonable and articulable suspicion.
The court also rejected defendant’s Miranda argument,
determining that defendant voluntarily relinquished the drugs,
volunteered statements to the officer, and was not in custody
for Miranda purposes prior to her arrest.
Defendant pled guilty to the third-degree possession charge
and was sentenced to two years of probation. The Appellate
Division affirmed in an unpublished opinion. The panel agreed
with the trial court’s outcome because it found sufficient
evidentiary support for the determination that defendant’s
detention was based on reasonable suspicion. More particularly,
the panel determined that an investigative detention began when
Campan asked defendant whether there was anything in the vehicle
he should be aware of. Prior to that point, the panel
concluded, she was free to leave. The panel held that by the
time the officer posed the question that altered the encounter,
turning it from a field inquiry into an investigative detention,
he had reasonable and articulable suspicion to support his
7
action based on defendant’s strange answers about smoking and
putting on makeup, the time of day, the officer’s recognition of
defendant as someone he had previously arrested for drugs, and
her scurrying around by the passenger seat. According to the
panel, that totality provided the officer with a particularized
and objective basis for suspecting criminal behavior. The panel
also rejected defendant’s Miranda arguments.
We granted defendant’s petition for certification. 227
N.J. 22 (2016). We also granted the motion of the American
Civil Liberties Union of New Jersey (ACLU-NJ) for leave to
participate as amicus curiae.
In their arguments before us, the parties embellish on
their positions advanced before the trial and appellate courts.
Arguing for reversal along with defendant, the ACLU-NJ
maintains that an investigative detention had begun when Campan
blocked defendant’s vehicle, used his alley light to illuminate
her car, and then approached her vehicle, because defendant
would not reasonably have felt free to leave. At the very
latest, amicus contends that when Campan made his request for
identification, defendant was clearly subjected to an
investigative detention. Alternatively, the ACLU-NJ argues that
the encounter turned into a search when Campan asked defendant
if there was contraband in the car, rendering this Court’s
consent-search jurisprudence controlling.
8
II.
The Fourth Amendment of the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution both
provide that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” U.S. Const.
amend. IV; N.J. Const. art. I, ¶ 7. Warrantless searches and
seizures presumptively violate those protections, State v.
Elders, 192 N.J. 224, 246 (2007), but “[n]ot all police-citizen
encounters constitute searches or seizures for purposes of the
warrant requirement,” State v. Rodriguez, 172 N.J. 117, 125
(2002).
In escalating order of intrusiveness upon a citizen’s
rights, three categories of encounters with police have been
identified by the courts: (1) field inquiry; (2) investigative
detention; and (3) arrest. We address each in turn.
A field inquiry is essentially a voluntary encounter
between the police and a member of the public in which the
police ask questions and do not compel an individual to answer.
See State v. Maryland, 167 N.J. 471, 483 (2001) (citing Florida
v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed.
2d 229, 236 (1983)). The individual does not even have to
listen to the officer’s questions and may simply proceed on her
own way. See Royer, supra, 460 U.S. at 497-98, 103 S. Ct. at
9
1324, 75 L. Ed. 2d at 236. The test of a field inquiry is
“whether [a] defendant, under all of the attendant
circumstances, reasonably believed he could walk away without
answering any of [the officer’s] questions.” Maryland, supra,
167 N.J. at 483. Because a field inquiry is voluntary and does
not effect a seizure in constitutional terms, no particular
suspicion of criminal activity is necessary on the part of an
officer conducting such an inquiry. Elders, supra, 192 N.J. at
246.
In contrast to a field inquiry, an investigative detention,
also called a Terry2 stop or an investigatory stop, occurs during
a police encounter when “an objectively reasonable person” would
feel “that his or her right to move has been restricted.”
Rodriguez, supra, 172 N.J. at 126; see United States v.
Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed.
2d 497, 509 (1980) (plurality opinion) (concluding that person
is seized for Fourth Amendment purposes when, “in view of all of
the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave”). Because an
investigative detention is a temporary seizure that restricts a
person’s movement, it must be based on an officer’s “reasonable
and particularized suspicion . . . that an individual has just
2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
10
engaged in, or was about to engage in, criminal activity.”
State v. Stovall, 170 N.J. 346, 356 (2002).
An arrest -- the most significant type of seizure by police
-- requires probable cause and generally is supported by an
arrest warrant or by demonstration of grounds that would have
justified one. See State v. Brown, 205 N.J. 133, 144 (2011);
see also State v. Dickey, 152 N.J. 468, 478-79 (1998)
(distinguishing between investigative detention and arrest).
The key issue in this case lies in the distinction between
a field inquiry and an investigative detention.
III.
A.
The difference between a field inquiry and an investigative
detention always comes down to whether an objectively reasonable
person would have felt free to leave or to terminate the
encounter with police. The encounter is measured from a
defendant’s perspective. Maryland, supra, 167 N.J. at 483. The
trial court and the appellate panel both believed an objectively
reasonable person in defendant’s position would have felt free
to leave, at least up until the point when defendant was asked
directly whether she had anything in her vehicle that Campan
should know about. The Appellate Division accepted the State’s
argument that because defendant was right outside her residence,
she could have left her vehicle, walked away from Campan, and
11
entered her home. Under the totality of the circumstances, we
are compelled to disagree.
A person sitting in a lawfully parked car outside her home
who suddenly finds herself blocked in by a patrol car that
shines a flood light into the vehicle, only to have the officer
exit his marked car and approach the driver’s side of the
vehicle, would not reasonably feel free to leave. That
conclusion is consistent with ordinary notions of how a
reasonable person responds to a demonstration of police
authority. See Rodriguez, supra, 172 N.J. at 129 (“[A]s a
practical matter, citizens almost never feel free to end an
encounter initiated by the police.”). Rather, such police
activity reasonably would, and should, prompt a person to think
that she must stay put and submit to whatever interaction with
the police officer was about to come.
Here, the officer immediately asked for defendant’s
identification. Although not determinative, that fact only
reinforces that this was an investigative detention. It defies
typical human experience to believe that one who is ordered to
produce identification in such circumstances would feel free to
leave. See, e.g., State v. Egan, 325 N.J. Super. 402, 410-11
(App. Div. 1999) (holding that officer’s immediate demand for
“driving credentials” upon approaching defendant’s parked van
elevated field inquiry into constitutional seizure).
12
Moreover, this matter is not analogous to the few cases in
this state addressing an officer’s less dramatically begun, more
casual and conversational interactions with a person in a parked
car, which have generally been viewed as field inquiries
involving a lesser degree of intrusiveness than a motor vehicle
stop. See, e.g., State v. Adubato, 420 N.J. Super. 167, 180-81
(App. Div. 2011), certif. denied, 209 N.J. 430 (2012); State v.
Stampone, 341 N.J. Super. 247, 252-53 (App. Div. 2001).
Defendant rightfully distinguishes that precedent by emphasizing
the totality of circumstances in this instance, particularly
that Campan began the encounter by partially blocking in her car
from the rear, activating the alley light in order to flood the
area with light, and exiting and proceeding directly to
defendant to address her. That conduct is not a garden-variety,
non-intrusive, conversational interaction between an officer and
an individual. See Rodriguez, supra, 172 N.J. at 126 (noting
that encounter could be treated as field inquiry “if [an
officer’s] questions were put in a conversational manner, if he
did not make demands or issue orders, and if his questions were
not overbearing or harassing in nature” (quoting State v. Davis,
104 N.J. 490, 497 n.6 (1986))). The differentiating feature of
a field inquiry is that, from the perspective of the person
approached by an officer, the interaction is voluntary. See
Maryland, supra, 167 N.J. at 483 (emphasizing that hallmark of
13
field inquiry is that person “need not answer any question put
to him[,] . . . may decline to listen to the questions at all
and may go on his way” (quoting Royer, supra, 460 U.S. at 497,
103 S. Ct. at 1324, 75 L. Ed. 2d at 236)).
The show of law enforcement attention focused on defendant
that occurred here should result in a person’s staying put and
engaging with the officer who has exhibited such a pointed
intention to interact with that person. Our case law instructs
members of the public to submit to a police officer’s show of
authority, not to look for an exit. Case law tells people to
obey words and deeds of law enforcement that communicate demands
for directed behavior and to raise constitutional objections
thereafter. See State v. Crawley, 187 N.J. 440, 443-44
(“Defendant’s obligation to comply with [an officer’s] command
did not depend on how a court at some later time might decide
the overall constitutionality of the street encounter.”), cert.
denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006);
Rodriguez, supra, 172 N.J. at 128 (explaining that “tenor of the
officer’s actions” affects totality of circumstances analysis
into whether investigative detention took place); Davis, supra,
104 N.J. at 498 (depending on factual circumstances, detaining
individual by blocking path in public place can be sufficient
for finding investigative detention).
14
The total effect of the interaction must be assessed -- and
assessed from its likely effect on a reasonable person -- in
order to determine whether an individual is being subjected to a
field inquiry or an investigative detention. Unlike the
dissent, we do not parse this encounter based on the
reasonableness of Campan’s actions viewed from his perspective.
The overall impact of the encounter must be evaluated based on
its effect on an individual in defendant’s position and whether
she reasonably would have felt free to extract herself from
Campan’s focused demonstration of authority toward her. See
Rodriguez, supra, 172 N.J. at 129; accord Michigan v.
Chesternut, 486 U.S. 567, 573-74, 108 S. Ct. 1975, 1979-80, 100
L. Ed. 2d 565, 572 (1988) (explaining that “reasonable person”
test is designed to evaluate effect of officer conduct “taken as
a whole, rather than to focus on particular details of that
conduct in isolation”).
In fact, this appeal presents two distinct “totality of the
circumstances” inquiries. The first is whether a reasonable
person faced with the circumstances in which defendant was
approached by Campan would feel free to leave. If not, the
encounter is an investigative detention. In the circumstances
presented here, we conclude that defendant was faced with an
investigative detention once Campan blocked in her vehicle,
directed the patrol car’s alley light to shine into her car, and
15
then approached her driver’s side window to address her.
Because we conclude that it was an investigative detention from
the point that Campan took those directed actions toward
defendant, we then must consider the second question of whether,
based on a totality of the circumstances, the encounter was
“justified at its inception” by a reasonable and articulable
suspicion of criminal activity. Dickey, supra, 152 N.J. at 476
(quoting Terry, supra, 392 U.S. at 20, 88 S. Ct. at 1879, 20 L.
Ed. 2d at 905).
B.
In considering whether the reasonable and articulable
suspicion standard was met here, we note that the State has
conceded that the anonymous tip accusing defendant of drug
distribution is entitled to little weight in our analysis. We
have long recognized that an anonymous tip, standing alone,
inherently lacks the reliability necessary to support reasonable
suspicion because the informant’s “veracity . . . is by
hypothesis largely unknown, and unknowable.” Rodriguez, supra,
172 N.J. at 127-28 (quoting Alabama v. White, 496 U.S. 325, 329,
110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990) (internal
quotation marks omitted)). The fact that the tip accurately
identified defendant and her vehicle 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
16
criminal activity.” Florida v. J.L., 529 U.S. 266, 272, 120 S.
Ct. 1375, 1379, 146 L. Ed. 2d 254, 261 (2000).
Here, we have no corroborated criminal activity. We have
only Campan observing defendant (identified later in the
exchange) in her own car parked in front of her residence. His
recognition that the location was connected to the anonymous tip
does not support reasonable and articulable suspicion. The
officer’s observation, upon shining a light in defendant’s
vehicle, that defendant was “scuffling around” and leaning
toward the passenger seat also does not provide a reasonable
basis to suspect criminality. The Court has held that “there
are some cases in which ‘furtive’ movements or gestures by a
motorist, accompanied by other circumstances, will ripen into a
reasonable suspicion that the person may be armed and dangerous
or probable cause to believe that the person possesses criminal
contraband.” State v. Lund, 119 N.J. 35, 48 (1990); see also
State v. Gamble, 218 N.J. 412, 431 (2014); cf. State v. Bacome,
154 N.J. 94, 107-08 (2017) (noting that during detention arising
from legitimate traffic stop, furtive gestures may support
heightened caution). However, an officer’s safety concerns
based on the asserted “furtive” movements by defendant cannot
provide reasonable and articulable suspicion to support a
detention in the first instance. Nervousness and excited
movements are common responses to unanticipated encounters with
17
police officers on the road, and “[m]ere furtive gestures of an
occupant of an automobile do not give rise to an articulable
suspicion suggesting criminal activity.” Lund, supra, 119 N.J.
at 47 (alteration in original) (quoting State v. Schlosser, 774
P.2d 1132, 1137 (Utah 1989)).
The suspicious behavior identified by the State in
defendant’s later responses to Campan’s questioning occurred
after the investigative detention had begun. Neither those
responses, nor her blurted-out incriminatory statements, nor the
surrendered contraband can be used, post hoc, to establish the
reasonable and articulable suspicion required at the outset of
the investigative detention that here began earlier in time. We
conclude that reasonable and articulable suspicion was not
present when this investigative detention began. Therefore, we
hold that the statements and evidence obtained thereafter must
be suppressed. See State v. Herrerra, 211 N.J. 308, 330 (2012)
(explaining exclusionary rule barring introduction into evidence
of “fruits” of illegal search or seizure).
As a result of our determination, it is unnecessary for us
to address the Miranda arguments advanced by the parties.
IV.
The judgment of the Appellate Division is reversed.
18
CHIEF JUSTICE RABNER and JUSTICES ALBIN and TIMPONE join in
JUSTICE LaVECCHIA’s opinion. JUSTICE SOLOMON filed a separate,
dissenting opinion, in which JUSTICES PATTERSON and FERNANDEZ-VINA
join.
19
SUPREME COURT OF NEW JERSEY
A-91 September Term 2015
077420
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LURDES ROSARIO,
Defendant-Appellant.
JUSTICE SOLOMON, dissenting.
I agree with the majority that the encounter between
defendant and Patrolman Gabriel Campan did not implicate
Miranda. However, I view our State’s jurisprudence to mandate a
different holding than that reached by the majority as to when
the encounter became an investigative detention. I conclude, as
did the lower courts, that the interaction evolved from a field
inquiry into an investigative detention when Campan asked
whether there was anything in the vehicle he should know about.
Furthermore, at the moment he asked that question, Campan had a
“reasonable and articulable suspicion to believe” that defendant
“just engaged in, or was about to engage in, criminal activity,”
and so his detention was lawful and the trial court properly
denied defendant’s motion to suppress. State v. Stovall, 170
N.J. 346, 356 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88
1
S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). For those
reasons, I respectfully dissent.
I.
At the outset, I stress the importance of avoiding an
unreasonable expansion of the investigative detention principle.
As the majority aptly recognizes, the critical distinction
between a field inquiry and an investigative detention is
whether an objectively reasonable person would have felt free to
leave. State v. Rodriguez, 172 N.J. 117, 128 (2002); State v.
Maryland, 167 N.J. 471, 483 (2001). The majority finds that a
reasonable person would not have felt free to leave -- and thus
an investigative detention began -- once Campan parked behind
defendant’s vehicle, shined the alley light into her car, and
approached the driver’s-side window. Given the circumstances,
however, I consider that moment to be a part of Campan’s lawful
field inquiry.
First, although Campan suspended defendant’s ability to
drive away when he parked his vehicle behind hers, I do not find
this act indicated an intention to detain defendant, or that a
reasonable person would have felt as though she were unable to
leave. This Court has held that when a police officer blocks an
individual’s path, an investigative detention is underway.
State v. Tucker, 136 N.J. 158, 166 (1994); State v. Davis, 104
N.J. 490, 498 (1986). However, in Davis and Tucker, the
2
defendants were in transit when police stopped their motion and
blocked any available escape route. Tucker, supra, 136 N.J. at
162; Davis, supra, 104 N.J. at 498. Therefore, officers showed
an intention to capture the defendants, rather than simply to
engage in a brief discussion. See Tucker, supra, 136 N.J. at
166; see also Terry, supra, 392 U.S. at 16, 88 S. Ct. at 1877,
20 L. Ed. 2d at 903 (“It must be recognized that whenever a
police officer accosts an individual and restrains his freedom
to walk away, he has ‘seized’ that person.”).
While Campan’s vehicle was parked close enough to deny
defendant the ability to drive away, she was parked in front of
her own house when the officer stopped behind her. Her engine
and headlights were off. Defendant was not in motion and did
not manifest any intention to move her vehicle prior to and
during the encounter. It is also evident that defendant was
able to exit her vehicle without restriction and enter her home,
or walk down the street.
Second, Campan’s act of shining his alley light into
defendant’s car cannot rationally be considered an impediment to
defendant’s movement or conduct that would make a reasonable
person feel unable to leave. When an officer comes upon an
individual sitting in a car at night, with the motor and lights
off, in an area that “has its days” of crime, it is reasonable
for him or her to use a light to accurately assess the
3
surroundings. That does not convert a field inquiry into an
investigative detention.
Third, Campan’s approach of defendant’s vehicle was to
investigate the scene, and nothing suggests the officer did so
in a way to make defendant reasonably feel as though she were
not allowed to exit her vehicle. Including this conduct of
Campan in the majority’s finding of an investigative detention
severely restricts an officer’s ability to safely and
appropriately explore a suspicious situation.
In Davis, supra, this Court made clear that a police
officer does not violate the Fourth Amendment by “merely
approaching an individual on the street . . . , by asking him if
he is willing to answer some questions, [or] by putting
questions to him if the person is willing to listen.” 104 N.J.
at 497 (quoting Royer, supra, 460 U.S. at 497, 103 S. Ct. at
1324, 75 L. Ed. 2d at 236). Campan’s conduct, up to the point
at which the majority finds an investigative detention began,
fits squarely within this jurisprudence on permissible field
inquiries. Moreover, the United States Supreme Court provided
the following examples as circumstances in which an
investigative detention may be found: “the threatening presence
of several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with the
4
officer’s request might be compelled.” United States v.
Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed.
2d 497, 509 (1980). Here, there was no similar expression of
dominance or authority at the point where Campan approached
defendant’s vehicle.
The majority also considers the fact that Campan asked
defendant for identification as proof that she was detained.
However, this request is typical of a field inquiry and cannot,
on its own, elevate the officer’s conduct to the degree we find
necessary for an investigative detention. See State v.
Sirianni, 347 N.J. Super. 382, 391 (App. Div.) (“[A] request for
identification does not, in and of itself, transform a field
inquiry into a Terry stop.”), certif. denied, 172 N.J. 178
(2002). Because it is independently insufficient to transform
the situation into an investigative detention, and the other
factors that existed at that point are unpersuasive, I find no
merit in viewing this inquiry as reinforcement for the
majority’s finding.
The majority attempts to distinguish this case from State
v. Adubato, 420 N.J. Super. 167 (App. Div. 2011), certif.
denied, 209 N.J. 430 (2012), and State v. Stampone, 341 N.J.
Super. 247 (App. Div. 2001), on the ground that Campan’s conduct
was not “a garden-variety, non-intrusive, conversational
interaction between an officer and an individual.” Ante at ___
5
(slip op. at 13). I fail to see how an officer’s mere approach
of an already parked vehicle is intrusive, nor do I find any
basis for concluding Campan’s conduct up to that point was
anything more than casual considering no dialogue had yet taken
place. See State v. Nishina, 175 N.J. 502, 510 (2003) (“A
permissible inquiry occurs when an officer questions a citizen
in a conversational manner that is not harassing, overbearing,
or accusatory in nature.”). Moreover, both Adubato and Stampone
confirm that an investigative detention did not begin at any
point before Campan and defendant engaged in conversation.
In Adubato, supra, the officers activated their emergency
flashers, pulled behind the parked vehicle -- which was also
parked in front of the defendant’s home -- and immediately
approached the driver’s-side window; that conduct is identical
to the officer’s conduct in this case. 420 N.J. Super. at 174.
The Adubato panel first reasoned that the officer was justified
in making further inquiry because he “observed the car stopped
on the side of the road, with the engine running, the lights on,
and the driver speaking loudly on a cell phone,” and “did not
know whether he was dealing with an intoxicated driver . . .
[or] someone who was looking around the neighborhood for
opportunities to engage in criminal conduct.” Id. at 179-80.
Further, the Adubato panel found that an officer’s use of
flashers when pulling behind a parked car did not elevate the
6
inquiry to an investigative detention, particularly where it is
routine for officers to use their flashers when “rendering
roadside assistance” and where it enhances the officers’ safety.
Id. at 180-81. Also instructive is the panel’s ultimate finding
that the situation did not escalate to an investigative
detention until after the officer approached the driver’s-side
window and a conversation began in which the defendant admitted
to having been drinking. Id. at 182.
Here, I find Campan equally justified in making a further
inquiry because defendant was engaged in even more suspicious
behavior than the defendant in Adubato. Defendant sat in her
car in the middle of the night with both the engine and lights
off and, when the car was illuminated, made furtive movements in
the front seat. In addition, given the time of day and
location, it was reasonable for safety reasons for Campan to
illuminate the area. Accordingly, I agree with the Adubato
panel’s reasoning and cannot find justification in qualifying
Campan’s mere approach of the vehicle as determinative.
In Stampone, the panel was tasked with determining whether
the trial court had appropriately convicted the defendant of
committing a disorderly persons offense. Stampone, supra, 341
N.J. Super. at 253. While the appeal did not turn on “the law
of search and seizure,” the panel noted that the defendant was
detained, at the very earliest, when the officer instructed him
7
not to leave. Ibid. Notably, that was well after the officer
stopped his patrol vehicle and approached the defendant. Id. at
249-50, 253. Further, as here, the officer came upon a
suspicious situation, parked his vehicle, and approached the
driver’s-side window of the car in question. Ibid. Those
circumstances were not held to mark the beginning of a detention
in Stampone and neither should they here.
I believe that the encounter escalated into an
investigative detention when Officer Campan asked if there was
anything in the vehicle that he should know about, referring to
contraband. At that point, defendant knew the officer was
investigating possible criminal activity, and a reasonable
person under the circumstances would not have felt “free to
leave.” Stovall, supra, 170 N.J. at 355 (quoting Mendenhall,
supra, 446 U.S. at 554, 100 S. Ct. at 1877, 64 L. Ed. 2d at
509). This position is in line with our State’s jurisprudence.
See, e.g., State in Interest of J.G., 320 N.J. Super. 21, 31
(App. Div. 1999) (finding when police officer asks individual
whether he is carrying “anything on him that he shouldn’t have,”
question converts field inquiry into detention).
II.
Not only do I find that an investigative detention occurred
when Campan inquired about any potential contraband, but I also
find that the investigative detention itself was lawful because,
8
at that moment, based upon all of the facts and circumstances,
Campan had a “reasonable and particularized suspicion to believe
that [defendant had] just engaged in, or was about to engage in,
criminal activity.” Stovall, supra, 170 N.J. at 356 (citing
Terry, supra, 390 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at
906). While no clear “mathematical formula” is needed to come
to this logical conclusion, see Davis, supra, 104 N.J. at 505, I
find the following compelling.
The encounter between defendant and Campan took place
during the late hours of the night, when it was dark, in a
location that the officer suggested “has its days” as a high-
crime area. When Campan shined his alley light into the
vehicle, he saw defendant look back at him and then scuffle
around in the passenger seat. After the officer checked
defendant’s identification, he recognized her from a prior
arrest and realized that she was the subject of the anonymous
phone tip. Upon ordinary questioning about her furtive
movements, defendant gave responses that were seemingly
nonsensical. Defendant claimed to have been smoking, but there
were no cigarettes. Defendant also told the officer that she
was leaning towards the passenger side of the vehicle because
she had just applied makeup and was putting it away, yet it was
dark and no lights were on. I find that these responses by
9
defendant reasonably raised the officer’s suspicion of criminal
conduct. State v. Carvajal, 202 N.J. 214, 228 (2010).
III.
In sum, the critical difference between my view of the
encounter between defendant and Campan and that of the majority
is the point at which the encounter evolved into an
investigative detention. The majority’s holding unreasonably
and unnecessarily limits an officer’s ability to explore a
suspicious scenario and ensure that the community and officers
are safe, and no crime is being committed. As this Court stated
in State v. Gray, “police officers are trained in the prevention
and detection of crime. Events which would go unnoticed by a
layman ofttimes serve as an indication to the trained eye that
something amiss might be taking place or is about to take
place.” 59 N.J. 563, 567-59 (1971). Indeed, as we stated in
that case, “[t]he police would be derelict in their duties if
they did not investigate such events.” Id. at 58. Having
identified a different point in time to mark the beginning of
the investigative detention, I also conclude that the detention
itself was lawful.
For those reasons, I would affirm the judgment of the
Appellate Division.
10