State v. Lurdes Rosario (077420) (Monmouth and Statewide)

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