State v. Stovall

COLEMAN, J.,

concurring in part and dissenting in part.

I agree with the majority that Detective Benoit’s detention of defendant constituted a seizure. Ante at 358, 788 A.2d at 753. That seizure was part of an investigatory stop that “permits law enforcement officers to detain an individual temporarily for questioning.” State v. Maryland, 167 N.J. 471, 486 , 771 A.2d 1220 (2001). “[A]n investigatory stop directly implicates the Fourth Amendment because it involves a seizure in the constitutional sense.” Ibid. Although the Fourth Amendment warrant and probable cause requirements are relaxed for an investigatory stop, such a seizure is constitutional only if, under the totality of circumstances, “there is a reasonable and particularized suspicion to believe that an individual has just engaged in, or is about to engage in, criminal activity.” Id. at 487 , 771 A.2d 1220 ; State v. Davis, 104 N.J. 490, 504 , 517 A.2d 859 (1986). I disagree with the Court’s holding that the record in this case, inclusive of the alleged drug courier profile information, establishes the constitutionally required reasonable and particularized suspicion that defendant possessed illegal drugs. Hence, I dissent.

I.

The starting point for evaluating the reasonableness of police conduct is the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. Those provisions protect citizens against unreasonable police *372 searches and seizures by requiring warrants issued on probable cause unless the search or seizure falls within one of the “few specifically established and well-delineated exceptions” to the warrant requirement. Schneckloth v. Bustamante, 412 U.S. 218, 219 , 93 S.Ct. 2041, 2043 , 36 L.Ed.2d 854, 858 (1973); State v. Maryland, supra, 167 N.J. at 482 , 771 A.2d 1220 ; State v. Citarella, 154 N.J. 272, 278 , 712 A.2d 1096 (1998); State v. Hill, 115 N.J. 169,173-74 , 557 A.2d 322 (1989). The exception to the warrant and probable cause requirements involved in this case is the investigatory stop, which permits law enforcement officers to detain an individual temporarily for questioning. Terry v. Ohio, 392 U.S. 1, 22 , 88 S.Ct. 1868, 1880 , 20 L.Ed.2d 889, 906 (1968); State v. Davis, supra, 104 N.J. at 504 , 517 A.2d 859 .

Under a Fourth Amendment analysis, the reasonableness of the police action in conducting an investigatory stop generally can be assessed by “ ‘balancing the need to search (or seize) against the invasion which the search (or seizure) entails.’ ” Terry, supra, 392 U.S. at 21 , 88 S.Ct. at 1879 , 20 L.Ed.2d at 905 (quoting Camara v. Municipal Court, 387 U.S. 523, 534-35, 536-37 , 87 S.Ct. 1727, 1735 , 18 L.Ed.2d 930, 940 (1967)); State v. Arthur, 149 N.J. 1, 7-8 , 691 A.2d 808 (1997). The facts used in that balancing test are to be judged objectively: “would the facts available to the officer at the moment of the seizure or the search [justify] a man of reasonable caution in the belief that the action taken was appropriate?” Terry, supra, 392 U.S. at 21-22 , 88 S.Ct. at 1880 , 20 L.Ed. 2d at 906 (internal quotations omitted). Thus, when determining whether Detective Benoit’s and the other officers’ actions were reasonable, consideration must be given “to the specific reasonable inferences which [they were] entitled to draw from the facts in light of [their] experience.” Id. at 27 , 88 S.Ct. at 1883 , 20 L.Ed.2d at 909 ; State v. Arthur, supra, 149 N.J. at 7-8 , 691 A.2d 808 . “Neither ‘inarticulate hunches’ nor an arresting officer’s subjective good faith can justify an infringement of a citizen’s constitutionally guaranteed rights.” State v. Arthur, supra, 149 N.J. at 7-8 , 691 A.2d 808 . “Rather, the officer ‘must be able to point to specific and articulable facts which, taken together with *373 rational inferences from those facts, reasonably warrant [the] intrusion.’ ” Id. at 8 , 691 A.2d 808 (quoting Terry, supra, 392 U.S. at 21 , 88 S.Ct. at 1880 , 20 L.Ed.2d at 906 ).

The level of reasonable suspicion necessary to justify an investigatory stop is “ ‘something less than the probable cause standard needed to support an arrest.’ ” State v. Arthur, supra, 149 N.J. at 8 , 691 A.2d 808 (quoting State v. Thomas, 110 N.J. 673, 678 , 542 A.2d 912 (1988)); see United States v. Sokolow, 490 U.S. 1, 16 , 109 S.Ct. 1581, 1590 , 104 L.Ed.2d 1, 16 (1989). That is, there must be “some objective manifestation that the suspect was or is involved in criminal activity.” State v. Thomas, supra, 110 N.J. at 678 , 542 A.2d 912 ; State v. Arthur, supra, 149 N.J. at 8 , 691 A.2d 808 .

A.

I concur, with some reluctance, in the Court’s decision to consider the drag courier profile information when deciding whether the standard controlling investigatory stops has been met. The Court’s approval of consideration of the drug courier profile information as a factor to be considered when evaluating the totality of the circumstances to determine whether the articulable and particularized suspicion standard has been met, does not, however, alter the Court’s obligation to make sure that an investigatory stop is based on the appropriate legal standard. State v. Davis, supra, 104 N.J. at 504 , 517 A.2d 859 ; State v. Patterson, 270 N.J.Super. 550, 559-60 , 637 A.2d 593 (Law Div.1993), affd o.b., 270 N.J.Super. 562 , 637 A.2d 599 (App.Div.1994). See also State v. Costa, 327 N.J.Super. 22, 32 , 742 A.2d 599 (App.Div.1999) (holding that detention was not supported by reasonable articulable suspicion where only indication of criminal activity was the manner in which defendant and companion exited car); State v. Contreras, 326 N.J.Super. 528, 541 , 742 A.2d 154 (App.Div.1999) (finding no reasonable, articulable suspicion of criminal activity to conduct stop of two defendants who “[paid] special attention” to police officers while in the train station and acted relieved once aboard the train by “looking up at the ceiling”); State v. Egan, 325 *374 N.J.Super. 402, 408 , 739 A.2d 469 (Law Div.1999) (holding that moving one’s vehicle from one side of street to another was innocuous conduct that did not rise to level of the reasonable articulable suspicion needed to seize defendant and ask for his driving credentials); State ex rel. J.G., 320 N.J.Super. 21, 33 , 726 A.2d 948 (App.Div.1999) (finding no reasonable or articulable suspicion because police officer’s “hunch to detain the travelers was based on a drug courier profile and not upon the specific overt conduct” of the juvenile and his adult traveling companion).

The Sixth Circuit has held that the fact that a defendant fits the drug courier profile is not a relevant factor in this calculus. United States v. Lewis, 556 F.2d 385, 389 (6th Cir.1977), cert. denied sub nom., Van Lewis v. United States, 434 U.S. 1011 , 98 S.Ct. 722 , 54 L.Ed.2d 754 (1978). Rather, a court should consider the facts exhibited by the defendant that are included in the profile and those that are not, and ask “what collectively do the facts show?” Ibid. See also United States v. Berry, 670 F.2d 583, 601 (5th Cir.1982) (noting characteristic exhibited by defendant that also is part of a drug courier profile does not necessarily preclude its use in formulating reasonable suspicion for stop, but “that we will assign no characteristic greater or lesser weight merely because the characteristic happens to be present on, or absent from, the profile”). But whenever the drug courier profile information is used in formulating the requisite level of suspicion, great care must be taken to avoid the trap Justice Marshall eloquently described. He recognized a potential for inconsistency in

the profile’s “chameleon-like way of adapting to any particular set of observations.” [United States v. Sokolow, 831 F.2d 1413, 1418 (9th Cir.1987), rev’d, 490 U.S. 1 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 ]. Compare, e.g., United States v. Moore, 675 F.2d 802, 803 (6th Cir.1982) (suspect was first to deplane), cert. denied, 460 U.S. 1068 , 103 S.Ct. 1521 , 75 L.Ed.2d 945 (1983), with United States v. Mendenhall, 446 U.S. 544, 564 , 100 S.Ct. 1870, 1882 , 64 L.Ed.2d 497 (1980) (last to deplane), with United States v. Buenaventurar-Ariza, 615 F.2d 29, 31 (2d Cir.1980) (deplaned from middle); United States v. Sullivan, 625 F.2d 9, 12 (4th Cir.1980) (one-way tickets), with United States v. Craemer, 555 F.2d 594, 595 (6th Cir.1977) (round-trip tickets), with United States v. McCaleb, 552 F.2d 717, 720 (6th Cir.1977) (nonstop flight), with United States v. Sokolow, 808 F.2d 1366, 1370 (9th Cir.), vacated, 831 F.2d 1413 *375 (1987) (case below) (changed planes); [United States v.] Craemer, [ 555 F.2d 594, 595 (6th Cir.1977) ] (no luggage), with United States v. Sanford, 658 F. 2d 342, 343 (5th Cir.1981) (gym bag), cert. denied, 455 U.S. 991 , 102 S.Ct. 1618 , 71 L.Ed.2d 852 (1982), with [United States v.] Sullivan, [ 625 F.2d 9, 12 (4th Cir.1980)] (new suitcases); United States v. Smith, 574 F.2d 882, 883 (6th Cir.1978) (traveling alone), unth United States v. Fry, 622 F.2d 1218,1219 (5th Cir.1980) (traveling with companion); United States v. Andrews, 600 F.2d 563, 566 (6th Cir.1979) (acted nervously), cert. denied sub nom., Brooks v. United States, 444 U.S. 878 , 100 S.Ct. 166 , 62 L.Ed.2d 108 (1979), with United States v. Himmelwright, 551 F.2d 991, 992 (5th Cir.) (acted too calmly), cert. denied 434 U.S. 902 , 98 S.Ct. 298 , 54 L.Ed.2d 189 (1977).

[United States v. Sokolow, supra, 490 U.S. at 13-14 , 109 S.Ct. at 1588-89 , 104 L.Ed.2d at 14 (Marshall, J., dissenting).]

I am also skeptical of law enforcement officials’ reliance upon a suspected drug courier’s city of origin or destination in establishing reasonable suspicion to conduct an investigatory stop because that factor also has yielded inconsistent results. If and when used, it should be given very little weight, if any, in evaluating whether reasonable suspicion exists. Travelers have raised suspicions based on such a wide host of “source cities” that this factor could implicate virtually any individual traveling to or from any American city. E.g., Reid v. Georgia, 448 U.S. 438, 441 , 100 S.Ct. 2752, 2754 , 65 L.Ed. 2d 890, 894 (1980) (referring to appellate court’s observation that Fort Lauderdale is a principal place of origin for cocaine); United States v. $22,474.00 in U.S. Currency, 246 F.3d 1212, 1216 (9th Cir.2001) (recognizing Phoenix as drug source city); United States v. O’Neal, 17 F.3d 239, 240 (8th Cir.), cert. denied, 513 U.S. 960 , 115 S.Ct. 418 , 130 L.Ed.2d 333 (1994) (recognizing Chicago as drug source city); United States v. Ushery, 968 F.2d 575, 579 (6th Cir.1992), cert. denied, 506 U.S. 946 , 113 S.Ct. 392 , 121 L.Ed.2d 301 (1992) (recognizing San Francisco as drug source city); United States v. Forero-Rincon, 626 F.2d 218, 220 (2d Cir.1980) (recognizing Miami as drug source city); Johnson v. State, 765 A.2d 926, 929 (Del.2000) (recognizing New York as drug source city). State v. Green, 346 N.J.Super. 87, 91 , 787 A.2d 186 (App.Div.2001) (recognizing Jamaica as drug source country). “[T]housands of innocent persons travel from ‘source cities’ every day and ... nearly every major city in the country may be characterized as a source or distribution city.” United *376 States v. Sokolow, supra, 490 U.S. at 16 , 109 S.Ct. at 1590 , 104 L.Ed.2d at 16 (Marshall, J., dissenting).

Given the inauspicious inconsistencies in the drug courier profile and its “chameleon-like” characteristics, United States v. Sokolow, supra, 490 U.S. at 13 , 109 S.Ct. at 1588 , 104 L.Ed.2d at 14 (Marshall, J., dissenting), I believe courts engaged in an investigatory stop analysis should assign little weight to the shifting drug courier profile characteristics. Where a majority or any substantial number of people share a specific characteristic, that characteristic is of little or no probative value in such a particularized and context-specific analysis. United States v. Montero-Camargo, 208 F.3d 1122, 1131 (9th Cir.), cert. denied sub nom., SanchezGuillen v. United States, 531 U.S. 889 , 121 S.Ct. 211 , 148 L.Ed.2d 148 (2000). Such traits are frequently as consistent with innocence as they are with guilt.

This is not a case like State v. Citarella, supra, 154 N.J. at 280 , 712 A.2d 1096 , in which Detective Benoit recognized defendant from prior encounters or relied on specific facts from earlier encounters with defendant. Unlike the facts in Reid, supra, 448 U.S. at 439, 441 , 100 S.Ct. at 2753-54 , 65 L.Ed.2d at 894 , and State v. Citarella, supra, 154 N.J. at 276 , 712 A.2d 1096 , defendant did not attempt to flee once Detective Benoit identified himself as a police officer. Also, unlike State v. Arthur, supra, 149 N.J. at 10 , 691 A.2d 808 , Detective Benoit did not observe a drug transaction or furtive movements. Rather, this is a case in which unverified, non-specific, unreasonable, and generalized characteristics were given significant weight and used as the basis to stop defendant. Cf. State v. Kuhn, 213 N.J.Super. 275, 280-81 , 517 A.2d 162 (App.Div.1986) (noting some circumstances in which courts have found a sufficiently articulable basis to conduct a brief stop, including traffic violations, observations of narcotics or weapons, packages, objects or money changing hands between suspects, recent reports of a nearby crime, physical appearance or clothing suggestive of crime, the nearby presence of potential or likely *377 crime victims, and tips that a crime or drug transaction is about to occur).

B.

Based on the foregoing legal principles, I must ask what collectively do the facts show? My answer, unlike the majority, is that under the totality of the circumstances, there was no objective manifestation that defendant was involved in any criminal activity. The majority, I submit, has reached the wrong result by affording greater weight than is warranted to the reliability of the tip that spurred Detective Benoit into action. The record suggests that only a ticketing agent provided the initial non-criminal information to Agent Cahill. I agree with the majority that the information received from the airline representative standing alone, “does not support a finding of reasonable suspicion.” Ante at 361, 788 A.2d at 755.

The origin of defendant’s flight, the fact that her ticket had been purchased from an agency often used by drug couriers, that the ticket was of a type frequently used by drug couriers, and defendant’s use of a crew-type bag with wheels that is pulled by a handle, are facts that are entirely consistent with innocent behavior. Detective Benoit acknowledged in his testimony that bulk tickets, such as the ticket used by defendant, are not illegal. Ante at 365, 788 A.2d at 757. Although his experience reveals that some passengers using bulk tickets have later been found to carry contraband, he acknowledged that they are legal and that law-abiding citizens also use them. Nor was there any empirical data presented to demonstrate that criminals use bulk tickets more often than law-abiding citizens. The same rationale applies to the travel agency. The fact that the travel agency is a legally operated business offering its'services to law-abiding individuals who purchase bulk tickets from International Mirmar Travel, just as drug couriers might have, does not establish the required individualized suspicion.

*378 Detective Benoit testified that Agent Cahill stated that defendant was using “fraudulent” or “fake” identification; however, in his official police report, he recorded that the identification was “questionable.” Indeed, the only fact on the face of the state-issued identification card that could possibly be interpreted as “fraudulent” or “questionable” was that the expiration date had passed. It is uncontroverted that Detective Benoit subsequently discovered that Roberta Chambers, the name that was on the identification card, was not defendant’s real name. However, there is nothing in the record to indicate that either the airline representative or Agent Cahill had independently discovered or confirmed that fact before defendant was stopped. Similarly, there is no proof that the card’s Main Street address was known to have been fictitious, or that defendant did not actually live at that address, before she was stopped. “Facts learned by the authorities after the search and seizure occurs will not validate unreasonable intrusions.” State v. Bruzzese, 94 N.J. 210, 221 , 463 A.2d 320 (1983), cert. denied, 465 U.S. 1030 , 104 S.Ct. 1295 , 79 L.Ed.2d 695 (1984). Thus, I fail to see how having a recently expired identification card is remotely suggestive of criminality.

The majority mistakenly accords significance to the fact that the women boarded the plane in Los Angeles without appearing to know each other when the record does not establish any probability that they were acquainted. For example, in Reid v. Georgia, 448 U.S. 438, 439 , 100 S.Ct. 2752, 2753 , 65 L.Ed.2d 890 (1980), the defendant left a plane and proceeded through the terminal, occasionally looking backward in the direction of another man. When they reached the main lobby of the terminal, the second man caught up with the defendant and spoke briefly to him, before the two left together. Ibid. The United States Supreme Court held that the DEA agent who subsequently stopped the defendant could not reasonably have suspected the defendant of criminal activity on the basis of those observed circumstances. Id. at 441 , 100 S.Ct. at 2754.

*379 Even in the cases noted by the majority, law enforcement officials actually observed the suspects’ efforts to avoid appearing as though they knew each other. In United States v. Ushery, 968 F.2d 575, 577-78 (6th Cir.), cert. denied, 506 U.S. 946 , 113 S.Ct. 392 , 121 L.Ed. 2d 301 (1992), law enforcement officials actually observed the three suspected drug couriers not approaching one another, but making eye contact and nodding to one another prior to them flight. Upon their arrival in Cincinnati, other officials observed them as they rendezvoused and waited for a taxi cab together. Ibid. In United States v. Forero-Rincon, 626 F.2d 218, 220-21 (2d Cir.1980), an officer actually observed the suspects initially walking together, but after a whispered conversation, the two separated, briskly walked in single file as they approached a security checkpoint, scanned the area in a full circle, and ultimately met up again when they exited the terminal.

Unlike Reid, Ushery, and Forero-Rincon , where the suspects were observed trying to conceal that they were traveling together, the record in the present case does not show when defendant and the other passenger were observed allegedly trying to conceal that they knew each other or how they attempted to do so. Again, this was information provided by the airline representative, and Detective Benoit did not testify about any behavior that he actually observed to support any concealment. The women apparently boarded the airplane in Los Angeles in this fashion and disembarked similarly. If the women boarded acting as though they knew each other, and then left the plane in Newark acting as though they did not, perhaps that would have been a fact to consider in the totality of the circumstances. In this ease, the State’s assertion that the two were attempting to conceal the fact that they were traveling together is “simply too slender a reed to support the seizure” of defendant. Reid, supra, 448 U.S. at 441 , 100 S.Ct. at 2754 .

Detective Benoit also testified that defendant’s use of a small black tote bag on wheels was suspicious. That is, drug couriers prefer to carry their luggage because “check in” luggage might *380 alert K-9 units. Ante at 353, 366, 788 A.2d at 750, 758. Yet, defendant’s choice to carry her bag aboard the plane is hardly a fact suggestive that such persons are drug couriers. The proposition that it is unusual for airline passengers to choose to carry their bags, rather than check them, is not supported by any credible evidence presented in this case. Although drug couriers may have been apprehended while transporting drugs in carry-on luggage, thousands of other travelers transport perfectly legal items in tote bags with wheels pulled by handles, such as the crew-type bag in this case. E.g., United States v. Glover, 957 F.2d 1004, 1017 (2d Cir.1992) (Oakes, C.J., dissenting) (stating “[I]t is absurd, at least to anyone who has ever traveled on a bus, or an airplane for that matter, to suggest that there is something suspicious about not cheeking one’s luggage in the under-bus compartment where it can be damaged or otherwise batted about.”).

The only outward, visible sign that may have given Detective Benoit the slightest reason to suspect that defendant may have been involved in criminal activity was the fact that her hand shook as though she was nervous. When viewed in its proper context, that too, was not suggestive of criminality. The nervous hand movements occurred after Detective Benoit approached defendant and began asking her questions. The post-questioning nervousness, standing alone, does not come close to suggesting reasonable suspicion of criminality.

Although “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion[,]” Illinois v. Wardlow, 528 U.S. 119, 124 , 120 S.Ct. 673, 676 , 145 L.Ed.2d 570, 576 (2000), it is not uncommon for people to appear nervous or excited when a police officer is approaching. State v. Lund, 119 N.J. 35, 47 , 573 A.2d 1376 (1990). It is settled that mere nervous and furtive gestures are insufficient, standing alone, to rise to the level of an articulable suspicion. Ibid.; State v. Patterson, supra, 270 N.J.Super. at 561, 637 A.2d 593 . “Nervousness may mean something when combined with the discovery of drugs,” but nervous movements alone do not *381 necessarily suggest criminal activity. State v. Lund, supra, 119 N.J. at 48 , 573 A.2d 1376 . Rather, they are displayed merely because the presence of police officers “tends to make most people somewhat apprehensive.” Ibid, (citing State v. Palacio, 111 N.J. 543, 558 , 545 A.2d 764 (1988) (Stein, J., dissenting)). See also United States v. Andrews, supra, 600 F.2d at 566 (noting that nervousness may, in fact, be “entirely consistent with innocent behavior, especially at an airport where a traveler may be anticipating a long-awaited rendezvous with friends or family.”); State v. Costa, supra, 327 N.J.Super. at 32 , 742 A.2d 599 (stating a Terry stop “must be supported by more than just an awkward reaction to police presence.”)

The only reasonable conclusion to be drawn is that defendant’s nervousness was a normal reaction to police presence and questioning of her. Her nervousness, manifested only by her shaking hand, was observed only after Detective Benoit stopped her and asked for identification. The detective told defendant that he was part of the narcotics interdiction unit and that she was a suspected drug courier. Any individual confronted with such an accusatory statement would likely react similarly. Further, Detective Benoit’s testimony demonstrates that defendant did not display any furtive movements or attempt to evade his questions. Rather, she answered all of his inquiries, told him where her flight had originated, produced her airline ticket and personal identification immediately upon request, and provided details about her plans while in the New Jersey-New York area. In fact, even after defendant initially invoked her right to refuse to allow Detective Benoit to look into her bags, she remained and waited while he called for the K-9 Unit, rather than attempting to flee. Cf. State v. Citarella, supra, 154 N.J. at 281 , 712 A.2d 1096 (finding defendant’s flight from police “heightened the level of reasonable articulable suspicion already engendered by” the defendant’s actions). Nothing in the record characterizes defendant as an evasive or furtive suspect.

*382 My careful study of the evidence and reasonable inferences that can be drawn from that evidence leads me to conclude, as did the trial court and the-Appellate Division, that the State failed to establish the constitutionally required reasonable and particularized suspicion that defendant was involved in criminal activity.

II.

My conclusion that the facts do not support the Court’s holding that a reasonable and particularized suspicion existed to believe that defendant was an illegal drug courier is consistent with our past precedents. For example, in State v. Maryland, supra, 167 N.J. at 485 , 771 A.2d 1220 , the Court found that an investigatory stop predicated solely on race failed to satisfy the objective reasonableness standard. The police did not articulate a reasonable and particularized suspicion of criminal activity to support the investigatory stop of a defendant in a Railway train station. Id. at 488 , 771 A.2d 1220 . Transit officers on graffiti patrol, not narcotics surveillance duty, observed the defendant getting off a train carrying a paper bag which he placed in the waistband of his sweat pants. Ibid. The police described that act as “unusual,” leaping immediately to the conclusion that the paper bag might have contained drugs or a weapon. Ibid. We found that the record did not support a reasonable suspicion that the object was likely to be contraband. Ibid. No basis existed in the record respecting the officers’ training or experience that justifiably could transform their hunch into the legal standard of a reasonable or articulable suspicion. Ibid.

In State v. Citarella, supra, 154 N.J. at 275, 281 , 712 A.2d 1096 , the Court found, under facts much more substantial than those in the present case, that a reasonable and particularized suspicion existed when the Fort Lee police stopped a suspect whom they had arrested on twenty-eight prior occasions. On that occasion, the defendant was observed riding a bicycle in a hurried fashion over the George Washington Bridge. Id. at 275 , 712 A.2d 1096 . The arresting officer had never seen the defendant with a bicycle *383 in his multiple encounters with the defendant but knew that the defendant generally drove an older model, four-door car, the defendant lived two miles from the area in the opposite direction in which he was riding, and the defendant’s driving privileges had been suspended. Id. at 280 , 712 A.2d 1096 . After the officer identified himself, the defendant looked at him and then quickly pedaled away in an effort to elude the officer. Id. at 276 , 712 A.2d 1096 . Those facts, in conjunction with information relied on from past encounters with the defendant, provided a reasonable, articulable, and particularized suspicion that criminal activity was afoot. Id. at 276, 280 , 712 A.2d 1096 .

Under facts substantially different from those in the present case, the Court in State v. Arthur, supra, 149 N.J. at 7-8 , 691 A.2d 808 , found that the police had a reasonable and particularized suspicion to support an investigatory stop of a motor vehicle. The vehicle, with the defendant sitting in the driver’s seat, was parked in a known area of high drug traffic that the police had under surveillance. Id. at 4 , 691 A.2d 808 . The police observed a person entering the vehicle on the passenger side and sitting for a few minutes next to the defendant. Ibid. The police then observed that person leaving the vehicle carrying a paper bag. Ibid. Based on their training and experience they believed that they had witnessed a narcotics transaction. Id. at 5 , 691 A.2d 808 . We were satisfied that, in view of the totality of circumstances, their belief was more than a mere hunch and rose to the level of reasonable and articulable suspicion. Id. at 12 , 691 A.2d 808 .

III.

Based on the evidentiary record and the applicable legal principles, I conclude that collectively the facts do not demonstrate the existence of the required particularized suspicion that defendant had just engaged in, or was about to engage in, criminal activity. What occurred here was nothing more than Detective Benoit acting based on a lucky hunch engendered by generalized information. State v. Patino, 83 N.J. 1,12 , 414 A.2d 1327 (1980); see also *384 State v. Maryland, supra, 167 N.J. at 487, 488 , 771 A.2d 1220 (emphasizing that officer’s hunch, without more, cannot rise to level of reasonable and articulable suspicion in context of investigatory stop). “A search and seizure based on ‘luck and hunch’ is a ‘combination of insufficient constitutional ingredients.’ ” State v. Contreras, supra, 326 N.J.Super. at 541 , 742 A.2d 154 (quoting State v. Patino, supra, 83 N.J. at 12 , 414 A.2d 1327 ).

I would, therefore, affirm the judgment of the Appellate Division and suppress the evidence.

Justice STEIN joins in this opinion.

For reversal — Chief Justice PORITZ and Justices LaVECCHIA and ZAZZALI — 3.

Concurring in part/Dissenting in part — Justices STEIN and COLEMAN — 2.