State v. Pineiro

Justice ALBIN,

concurring.

The mere passing of a cigarette pack between two individuals is an unremarkable occurrence that does not suggest criminal activi *30 ty, whether in a high crime area or any other locale. Such ordinary behavior does not lose its innocent character, in my estimation, even if engaged in by a paroled drug offender. For that reason, I cannot agree with my colleagues that the passing of a cigarette pack from one person to another without the exchange of money in a high crime area by people with suspected drug backgrounds gave the police officers a reasonable and articulable suspicion to stop and detain the individuals.

The handing of a cigarette pack from one person to another at a Starbucks in Westfield or outside the Bridgewater Commons Mall would not attract anyone’s attention or give a police officer cause for a second thought because such conduct, standing alone, does not suggest that criminal activity is afoot. Such innocuous conduct is not transformed into a criminal enterprise, justifying a Terry-type detention and questioning, merely because it occurs in a police-designated high crime area. The police officer’s possession of vague “intelligence reports”—of unknown reliability—“indicating defendant was a suspected drug dealer” and his recollection that he “possibly” arrested the other individual for a drug offense should not alter the calculus.

There are tens of thousands of previous drug offenders in this state who are on parole, probation, or who have completed the terms of their sentences. Many of those people live in communities that are designated high crime areas. In my opinion, the Court’s holding goes too far and subjects those individuals to a Terry stop whenever they hand a cigarette pack to another person.

Although the detective stated at the suppression motion that cigarette packs are sometimes used to conceal drug transactions, there was no testimony concerning the percentage of times a packet of cigarettes is used for such illicit purposes. In State v. Demeter, 124 N.J. 374, 378 , 590 A.2d 1179, 1181 (1991), the police stopped a van because of a defective license-plate light. While standing outside the vehicle, the officer noticed a black, cylindrical shaped 35-millimeter film container lying on the front console. *31 Ibid. The officer directed the defendant to hand him the container and inside the container he found a small amount of marijuana. Ibid. At a suppression hearing, the arresting officer testified that “in his seven years of experience as a police officer he had investigated at least forty narcotics incidents with ‘at least half of them’ involving the use of 35-millimeter film containers to hold drugs.” Id. at 379 , 590 A.2d at 1182 . The stop in that case “did not occur in a high-crime area nor did the police have any tips regarding suspected drug activity by defendant.” Id. at 379 , 590 A.2d at 1182 . Although we took into account “the specialized experience and work-a-day knowledge of [the] police officer[ ],” we did not find that the seizure met an objective standard of reasonableness. Id. at 384, 385 , 590 A.2d at 1184, 1185 (internal quotation marks and citation omitted). On that occasion, we stated,

[h]ad there been proof here ... of regularized police experience that objects such as the film canister are the probable containers of drugs, we would have a different case. But here the evidence was the experience of only one officer and even that evidence supplied no information about what percentage of observed containers held drugs.

[Id. at 385-86, 590 A.2d at 1185 .]

The cigarette pack in this case was as “intrinsically innocent” as the film container in Demeter. See id. at 382, 590 A.2d at 1183 .

The words “high crime area” should not be invoked talismanieally by police officers to justify a Terry stop that would not pass constitutional muster in any other location. See State v. Carter, 69 Ohio St.3d 57 , 630 N.E.2d 355, 362 (1994) (finding that high crime area alone was not sufficient to warrant investigative stop, and noting that “[t]o hold otherwise would result in the wholesale loss of personal liberty of those with the misfortune of living in high crime areas”); Ransome v. State, 373 Md. 99 , 816 A.2d 901, 908 (2003) (stating that factors such as person’s presence in high crime area, bulging pocket, and nervous behavior when suddenly approached by plain clothes officers were insufficient basis for Terry stop and frisk, otherwise “there would, indeed, be little Fourth Amendment protection left for those men who live or have occasion to visit high-crime areas”); see also Brown v. Texas, 443 U.S. 47, 52 , 99 S.Ct. 2637, 2641 , 61 L.Ed.2d 357, 362-63 (1979) (holding *32 presence of appellant in “neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct”); Margaret Raymond, Down on the Corner, Out in the Street: Considering the Character of the Neighborhood in Evaluating Reasonable Suspicion, 60 Ohio St. L.J. 99 , 143 (1999) (arguing that “the character of the neighborhood for criminality should be considered only where the behavior that is relied upon to establish reasonable suspicion is behavior not commonly observed among law-abiding persons at the time and place observed”).

Whether they have drug backgrounds or not, those who live in high crime areas—a geographical designation that may include a whole neighborhood in an urban area—should not be subject to a lesser expectation of privacy under the State and Federal Constitutions. This is not a case in which the police over a period of time observed singularly suspicious activity, such as an individual handing out a number of cigarette packs to others or accepting money for individual cigarettes or packs of cigarettes. In this case, a police officer merely happened onto a scene in which he made the mundane observation of one individual passing a pack of cigarettes to another. That alone, regardless of the backgrounds of the individuals involved, did not warrant a stop and detention. Vigorous enforcement of the law through a heightened police presence in a high crime area does not require the sacrifice of constitutional protections under the Fourth Amendment and Article 1, Paragraph 7.

The analysis of the majority has not departed from, but merely followed, a set of precedents on the boundary line of our Fourth Amendment jurisprudence. See, e.g., State v. Citarella, 154 N.J. 272, 280-81 , 712 A.2d at 1100-01 (1998) (upholding investigatory stop when police officer observed defendant riding bicycle across George Washington Bridge into Fort Lee and, on encountering officer, defendant appeared nervous, increased speed, jumped off bicycle, and placed it in truck); State v. Arthur, 149 N.J. 1, 10-12 , 691 A.2d 808, 812-13 (1997) (upholding stop and search of defen *33 dant’s car when police observed woman enter car parked in area of high narcotics activity, and leave shortly thereafter carrying paper bag and acting “furtively”). 1

In the war against drugs, the justification of one questionable search as the basis for the next questionable search, and the next one, is slowly leading to the erosion of our Fourth Amendment protections. This process occurs almost imperceptibly in much the same way that light fades into dusk and dusk into darkness. It is in this twilight period when changes are barely discernable that we must be most vigilant to guard against the unintended surrender of our valued rights. I am concerned that the incremental extension of precedents on the outer perimeter of our Fourth Amendment jurisprudence will sanction unreasonable searches.

I would not extend Arthur and Citarella to permit a finding of a reasonable and articulable suspicion of criminal activity on the basis of the seemingly innocent passing of a cigarette pack from one individual to another without any exchange of money—even if the cigarette pack passes between individuals with suspected drug backgrounds in a high crime area. I concur with the majority that the actual seizure of the cigarette pack was not supported by probable cause and, therefore, I join the judgment of the Court.

The majority also cites State v. Valentine, 134 N.J. 536 , 636 A.2d 505 (1994), in support of its holding today. In Valentine , the Court upheld a police officer’s pat down search of a defendant known to the officer to have an extensive criminal history. Id. at 539 , 636 A.2d at 506 . The officer was patrolling a high crime area when he observed the defendant duck behind a tree, then walk towards the officer with his hands in his pockets. Id. at 539-40 , 636 A.2d at 506 . When questioned by the officer, the defendant answered evasively, appeared nervous, and would not make eye contact with the officer. Id. at 540 , 636 A.2d at 507 . I suggest that Valentine , in which the Court held that the police officer had reasonably concluded that the defendant might be armed and dangerous, is easily distinguished from Arthur, Citarella, and the case now before us. See id. at 553-54 , 636 A.2d at 513-14 . Those three are all drug cases, in which the police had no reason to suspect that the defendants were armed and dangerous.