Opposition Brief — Sheffield v. New Jersey

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TABLE OF CONTENTS

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ARGUMENT

POINT I

NO DETENTION OR SEIZURE OCCURRED IN

THIS CASE AND NO CONFLICT OF DECISIONS

EXISTS AS TO THE CONSTITUTIONAL

PROPRIETY OF BRIEF, ON THE STREET

QUESTIONING OF CITIZENS BY POLICE

DURING THE COURSE OF THEIR IN-

VESTIGATORY DUTIES ---+*s******°°°"

POINT II

THE PROPRIETY OF BRIEF, ON THE STREET

INVESTIGATORY QUESTIONING DOES NOT

POSE A SUBSTANTIAL CONSTITUTIONAL

8a od ak ho a ek ke

eT Te eT eS Oe CE ETE Tee

CASESCITED

ADAMS v. WILLIAMS, 407 U.S. 143 (1972) ........

AGUILAR v. TEXAS, 378 U.S. 108 (1964) .........

BATTS v. SUPERIOR COURT OF ORANGE COUNTY,

100 Cal. Rptr. 181, 23 Cal. App. 3d 435

NS eG Se ae ee ee

COMMONWEALTH v. BERRIOS, 437 Pa. 338,

OO eT ee eee ee ee

‘COMMONWEALTH v. HICKS, 434 Pa. 153,A. 2d 276

ee ee ee ee ee ee a ee

CORNLEY v. COCHRAN, 369 U.S. 506 (1962) ......

GAINES v. CRAVEN, 448 F. 2d 1236 (9th Cir. 1971) ..

GIDEON v. WAINWRIGHT, 372 U.S. 335 (1972 .....

GILBERT v. CALIFORNIA, 388 U.S. 263 (1967) .....

PALMER OIL CORP. v. AMERADA PETROLEUM

OORP.,. 343 US. B90 (1952)... cece ccc ccces

PEOPLE vy. HENZE, 61 Cal. Rptr. 545, 547, 253 Cal.

ne a

PEOPLE v. LINGO, 3 Cal. App. 3d 661, 83 Cal. Rptr.

755 (Ct. App. 1970)

PEOPLE v. MANIS, 74 Cal. Rptr. 423, 268 Cal. App.

2d 653 (Ci. App. 1969)... ec cre cece veccecs

POINTER v. TEXAS, 380 U.S. 400 (1965) eR we

PEOPLE v. RIVERA, 14 N.Y. 2d 441, 445, 201 N.E.

2d 32, 252 N.Y.S. 2d 458 (1964), cert. denied, 379

oS ef ee ee a ee ee ee ee ee

PEOPLE v. ROSEMOND, 26 N.Y. 2d 101, 257 NE.

_ - & Bir ee | |... Perrvererrrretrere

PEOPLE v. SARTAIN, 73 Cal. Rptr. 799, 268 Cal. App.

Sa 406 (Cy. Ape. ISG) . wc ccc cee cresese

PEOPLE v. SIEGENTHALER, 7 Cal. 3d 465, 499 P.

2d 499, 103 Cal. Rptr. 243 (1972) .....2 2. ee eee

PEOPLE v. THOMAS, 16 Cal. App. 3d 231, 93 Cal.

Rptr. 877 (Ct. App. 1971)... ee ee eevee eevee

STATE v. DILLEY, 49 N.J. 460, 467-468 (1967) ....

STATE v. FISH, 280 Minn. 163, 159 N.W. 2d 786

(1968) Sp aligiate to eietekeretne ore on enenele nel « eter enewere le

(1969) a ea eae eee 6a be ewe ee eee

STATE v. RATER, 453 P. 2d 680 (Ore. 1969) ....

STATE v. SHEFFIELD, 62 N.J. 441 (1973) ........

TERY se. GOD SOB US. 1 (EGER). wc cece ec etee

UNITED STATES v. DAVIS, 459 F. 2d 458 (9th Cir.

re ee eee eae ere ee

UNITED STATES v. SASER EEE, "205 F. Supp. 1312

ee ee ee a ee eee

UNITED STATES y. RIGGS, 347 F. rn 1098 .

(E.D.N.Y. 1972)

YOUNG v. UNITED STATES, 435 F. 2d 405,

408 (D.C. Cir. 1970) . . ~~... 2 ss oe eo oe

ZUCHT v. KING, 260 U.S. 174 (1922)

STATUTE CITED

N.J.S. 2A:21-20 (a) (1). 2. © 2 2 ew we ew ew ew ww

PAGE

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9

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RRA GR HUET Ll ata neh OS LA NE

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1972

Docket No.

SAMUEL SHEFFIELD,

Petitioner,

-VS-

STATE OF NEW JERSEY,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

QUESTION PRESENTED

Whether, in the instant case, the activities of petitioner

Sheffield, coupled with the knowledge possessed by the police

officers gave rise to a situation in which it was proper for the

officers to attempt to stop and question him?

STATEMENT OF THE CASE

Petitioner seeks a writ of certiorari to review an April 4,

1973 decision of the Supreme Court of New Jersey reversing a

judgment of the Superior Court, Appellate Division and rein-

stating the judgment of conviction originally entered by the trial

court. After denial of a pretrial motion to suppress evidence,

petitioner pleaded not guilty to accusation number A-3593-70,

filed March 18, 1971, charging him with possession of a narcotic

drug contrary to N.J.S. 2A:21-20 (a) (1). After waiver of trial by

jury, petitioner was tried and found guilty by the Honorable

Joseph B. Sugure, J.S.C. on September 29, 1971. The court im-

posed a term of two years probation and fined the petitioner two

dollars per week.

At the hearing on the motion to suppress evidence, the

following record was developed. At approximately 3:30 P.M. on

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February 2, 1971 Detectives Gordon El, McNulty and Delaney of

the Newark Narcotics Squad were patrolling a high crime area of

Newark, New Jersey in plain clothes and in an unmarked car.

They observed petitioner, known to them as a narcotics pusher

and dealer from their past experience in the area, walking along

Bruce Street and Fifteenth Avenue (Ta*5-23 to Ta 6-3; Ta6-12 to

18; Ta26-15 to 20). When the car was approximately three feet

from Sheffield, Detective Gordon El, without identifying

himself, called to him by name to come over to the car. Sheffield

ignored him and went off in the opposite direction toward a

tavern. At this point Gordon El got out of the car and, as he ap-

proached him from behind, observed Sheffield go to his mouth

with his right hand (Ta 7-3 to 5). Gordon El could not see the

complete gesture because petitioner's back was turned; he was

also unable to see exactly what Sheffield had stuffed into his

mouth but he did notice that petitioner was unable to speak (Ta

14: 12-15). However, Gordon El testified from his experience on

the narcotics squad that swallowing narcotics is a common

method of attempting to avoid arrest utilized by narcotics law

violators (Ta 11-4 to Ta 12-16).

After observing the above gesture, Gordon El again called

Sheffield who continued to ignore him and proceeded in the

opposite direction. When Gordon El caught up to him, Sheffield

pushed him away (Ta 7-10 to 14). A struggle ensued; Gordon El

then attempted to arrest Sheffield and petitioner was knocked to

the ground (Ta 7-15 to 16; Ta 9-6 to 13). As Sheffield fell, Gordon

El observed an object fall from his mouth which upon inspection

turned out to be fourteen bags of heroin (Ta 9-21 to 25; Ta 10-10

to 18).

At the suppression hearing, Gordon El testified extensively

(Ta 6-12 to 20; Ta 18-12 to 19-2; Ta 24-2 to 27-15) concerning his

knowledge of the petitioner. Gordon El stated that petitioner was

a known narcotics dealer in the area, that he himself had arrested

petitioner once before for possession of narcotics, that petitioner

had been in the Narcotics Squad office several times and that

petitioner was a “card carrying” addict. On recross-examination,

Gordon E1 altered his testimony to the effect that although he had

not arrested petitioner he had been in petitioner's prescence

*Ta refers to the transcript of the motion to suppress held on April 8 ard 30,

1971. T refers to the transcript of the trial held on September 29, 1971.

nie

PDO OR ASE CIEE OP BIE GAA bm ie oe Slt AE

DA Aten « BGS DT a) 0 eS a eer or asks

while he was being arrested by someone else. Gordon El also

based his knowledge of Sheffield on his familiarity with the

narcotics traffic in the area.

Fred Purcell, an identification officer for the Newark Police

Department and custodian of the arrest records, was the only

defense witness (Ta 28-5 to 19). Petitioner's arrest record was

introduced into evidence and it revealed that he had never before

been arrested on a narcotics offense (Ta 29-13 to 19).

In denying the motion to suppress, the court specifically

accepted Gordon El's account of the events in question despite

the ambiguity surrounding defendant's prior arrests. He found

that Gordon El knew Sheffield regardless of his prior narcotics

arrests or lack of them; he also found that Sheffield placed

something in his mouth while fleeing. The court held that in a

high narcotics area, petitioner's actions in failing to respond to

the officer's call and gesturing towards his mouth while quickly

walking away constituted probable cause (Ta 33-5 to 34-13).

Accordingly, the motion to suppress was denied.

Sheffield was subsequently brought to trial and found

guilty of possession of narcotics. At trial, defense counsel

stipulated that the substance which fell from the defendant's

mouth was heroin and that the chain of possession was unbroken

(T3-3 to T4-6). Detective Hugh McNulty of the Newark Narcotics

Squad testified and his account paralleled that related by Gordon

E] at the suppression hearing. The evidence was then introduced

and upon that record, the defendant was found guilty.

On September 28, 1972 the New Jersey Superior Court,

Appellate Division, reversed the trial court and held that the

police, under the circumstances of the case, had no right to at-

tempt to stop and question the defendant. Relying upon Terry v.

Ohio, 392 U.S. 1 (1968) and State v. Dilley, 49 N.J. 460, 467-468

(1967) the Appellate Division held that highly suspicious ac-

tivities on the part of the defendant were a prerequisite to the

right of the police to stop and question him in the manner em-

ployed in this instance.

On certification, the Supreme Court of New Jersey reversed

the Appellate Division and reinstated the judgment of the trial

court. The opinion of the Supreme Court of New Jersey is

reported in 62 N.J. 441 (1973). Emphasizing the importance of

police expertise in the narcotics area, the Supreme Court held

that the police conduct in question was reasonable and that there

atin

3

APSE TLL IOAN LLG ABIES TTS TAS Bed oP

was nothing illegal in the mere attempt to question Sheffield. The

Court specifically rejected the “highly suspicious cir-

cumstances” limitation on the right to question. Relying on the

recent decision of Adams v. Williams, 407 U.S. 143 (1972), the

court stressed the role of the police in crime prevention and

detection and stated that when the police officer's experience

indicated that some investigation is in order, although the

citizen’s behavior falls short of being highly suspicious, street

interrogation may be the most reasonable and proper course to

pursue. Noting that any evidence of harrassment was absent in

this case, the court concluded that mere field interrogation does

not amount to detention in the constitutional sense unless the

police officer curtails the individual's freedom of movement.

es ae a ee ae

COPS wa NOR AE UNS AIE e+ EIN

ARGUMENT

POINT I

NO DETENTION OR SEIZURE OCCURRED IN THIS CASE

AND NO CONFLICT OF DECISIONS EXISTS AS TO THE

CONSTITUTIONAL PROPRIETY OF BRIEF, ON THE

STREET QUESTIONING OF CITIZENS BY POLICE DURING

THE COURSE OF THEIR INVESTIGATORY DUTIES.

In urging the issuance of a writ of certiorari, peitioner

alleges a conflict among decisions of the various jurisdictions

which have treated the issue of on the street police attempts to

question citizens. However, an analysis of the cases cited by

petitioner indicates that such a conflict is non-existent. Petitioner

relies upon inapplicable stop and frisk cases and misinterprets

dicta in Terry v. Ohio, 392 U.S. 1 (1968) in his attempt to

characterize the circumstances of this case as a seizure violative

of the Fourth Amendment.

To support his assertion that a seizure occurred at the point

when Gordon El called out to petitioner, he states (Petitioner's

brief for certiorari at 20) that the trial court found that he was

effectively stopped or apprehended by the officer. That “seizure”

refers only to the incident which took place after petitioner

walked away from Gordon El for the second time and gestured

to his mouth, Contrary to petitioner's assertion, the trial court

did not find that Gordon El had seized petitioner by a mere

attempt to question him (Ta 33-11 to 20).

Terry, supra, at 20 n. 16 indicated that a seizure in the

constitutional sense occurs only when a police officer restrains

the liberty of a citizen through physical force or a show of

authority. Measured against this standard, the encounter involved

herein may more properly be called a police-citizen contact

instead of a seizure or detention. Such a distinction highlights the

inapplicability of the numerous stop and frisk cases relied upon

by petitioner in his petition for writ of certiorari.

Case law dealing with investigatory police-citizen contacts

does not conflict with the recent decision of the New Jersey

Supreme Court in the instant case. The courts of California, New

York and several other jurisdictions have authorized the type of

verbal inquiry utilized by the officers in this case and have ar-

ticulated standards similar to that expressed by the New

Jersey Court.

The Supreme Court of California approved similar police

conduct in People v. Siegenthaler, 7 Cal. 3d 465, 499 P. 2d 499,

103 Cal. Rptr. 243 (1972). There, police officers attempted to

question individuals who fled and dropped certain objects in the

process. The court held that no infringement of protected rights

occurred in the initial attempt to question. People v. Manis, 74

Cal. Rptr. 423, 268 Cal. App. 2d 653 (Ct. App. 1969) also supports

brief questioning as does People v. Sartain, 73 Cal. Rptr. 799, 268

Cal. App. 2d 486 (Ct. App. 1968). In Manis, the court construed

Terry to support questioning when an individual's conduct, in

light of the area and circumstances, suggests that investigation is

appropriate. 74 Cal Rptr. at 427-429. Accord, People v. Henze, 61

Cal. Rptr. 545, 547, 253 Cal. App. 2d 986 (Ct. App. 1967).

Batts v. Superior Court of Orange County, 100 Cal. Rptr.

181, 23 Cal. App. 3d 435 (Ct. App. 1972) clearly distinguished

between police-citizen contacts having nothing to do with crime

but from which evidence of crime may result and on the street

detentions:

Innumerable contacts between police and citizens

are intrusions into the citizen's privacy but these

contacts have nothing to do with suspicion of

criminal activity. They arise from the police of-

ficer's duty to maintain peace and security, to

protect citizens from harm or annoyance and to do

all those innumerable miscellaneous tasks which

society calls upon the police to do which have

nothing to do with the detection of crime. 100 Cal.

Rptr. at 183.

Respondent submits that a police officer's obligation to keep

informed of street activity mandates just the kind of verbal

inquiry recognized by the California courts. See also Young v.

United States, 435 F.2d 405, 408 (D.C. Cir. 1970); Gaines v.

Craven, 448 F.2d 1236 (9th Cir. 1971); United States v. Riggs, 347

F.Supp. 1098 (E.D.N.Y. 1972); State v. Fish, 289 Minn. 163, 159

N.W. 2d 786 (1968); State v. Lewis, 80 N.M. 274, 454 P.2d 360

(1969).

The premise underlying many of these decision is well

stated by the New York Court of Appeals in People v. Rosemond,

26 N.Y.2d 101, 257 N.E.2d 23, 308 N.Y.S.2d 836 (1970) which

recognized that many grounds other than a reasonable suspicion

of criminal behavior will justify such limited police inquiry as

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exemplified by the instant case. Knowledge and awareness of

street activity is essential to competent and effective police work.

Often, what is unusual enough to call for an inquirty must rest in

the professional experience of the police. 26 N. Y. 2d at 104.

A narcotics detective is a trained professional. Undercover

work is vital to his task of detecting and investigating possible

violations of New Jersey's narcotics laws. In the course of this

work officers are often confronted with seemingly innocuous

situations. In this instance, three experienced narcotics detec-

tives with an intimate knowledge of both the narcotics traffic in

ge~eral and its aberrations in this particular area were cruising in

a high crime area of Newark. They recognized petitioner as a

local narcotics pusher, if not from his prior record, then from

their knowledge of the neighborhood drug traffic.

The court, at the motion to suppress, specifically found that

the petitioner was known to the officers, whether from prior

arrests or not (Ta 33-9 to 11). It is the job of narcotics detectives

to know the local drug activity; obviously, one of their functions

is to know the identity of the local addicts, pushers, and dealers.

As in this case, spotting a person like petitioner often leads them

to investigate. Initiation of this type of investigation usually

begins with the questioning of the individual involved. People v.

Manis, supra 74 Cal. Rptr. at 428. To forbid this type of police

work, as petitioner urges, would choke off a vital tool in the in-

vestigation of narcotics activity and would be tantamount to

completely discounting the importance of police expertise and

experience in this area. Noteworthy is the restraint exercised by

the police under the circumstances. Initially, Gordon El did not

try to stop, arrest, or search the petitioner. He did not even alight

from the car until petitioner ignored his call and walked off.

Respondent urges that Detective Gordon El had both the right

and the obligation to attempt to question petitoner.

By the use of inapplicable cases dealing with stop and frisk

and unreasonable police conduct United States v. Davis, 459 F.2d

458 (9th Cir. 1972); United States v. Hostetter, 295 F. Supp. 1312

(D. Del. 1969); People v. Thomas, 16 Cal. App. 3d 231, 93 Cal.

Rptr. 877 (Ct. App. 1971); Commonwealth v. Berrios, 437 Pa.

338, 263 A.2d 342 (1970); Commonwealth v. Hicks, 434 Pa. 153,

253 A2d 276 (1969): State v. Rater, 453 P.2d 680 (Ore. 1969);

People v. Lingo, 3 Cal. App. 3d 661, 83 Cal. Rptr. 755 (Ct.App.

ay

Ste atte Bk BP ho a

1970), petitoner has attempted to base certiorari jurisdiction on

an alleged conflict of decisions treating the issue involved in this

case. Additionally, petitioner has distorted the issue at bar both

in his petition and in the courts below. Petitioner labels the issue

involved as an “on the street stop and detention of a person”

(Petitioner's brief for certiorari at 2) for investigatory purposes.

This is a total mistatement of the facts as they occurred. At issue

is a mere attempt to question an individual know to the police as a

narcotics pusher from their experience in the area. No stop,

seizure or detention existed in the mere attempt to question

petitioner. Because petitioner has distorted the issue and relied

upon inapplicable cases, respondent urges that the writ of cer-

tiorari be denied.

POINT Il

THE PROPRIETY OF BRIEF ON THE STREET IN-

VESTIGATORY QUESTIONING DOES NOT POSE A SUB-

STANTIAL CONSTITUTIONAL QUESTION.

In order for a writ of certiorari to issue, petitioner must

raise a substantial constitutional issue before this Court. The

question presented must not be devoid of merit nor must it be

foreclosed by previous judicial decisions. Zucht v. King, 260

U.S.174 (1922); Palmer Oil Corp. v. Amerada Petroleum Corp.,

343 U.S. 390 (1952). In the past, certiorari has been granted in

criminal cases involving vital constitutional issues affecting the

administration of criminal justice, not merely the individual

litigants. Gideon v. Wainwright, 372 U.S.335 (1972); Cornley v.

Cochran, 369 U.S. 506 (1962); Gilbert v. California, 388 U.S.263

(1967); Pointer v. Texas, 380 U.S.400 (1965) and Aguilar v.

Texas, 378 U.S.108 (1964) are representative of the type of cases

deserving adjudication by this Court. Respondent respectfully

submits that the instant case presents no issue of similar con-

stitutional magnitude and that a writ of certiorari should,

therefore, be denied.

The courts have adopted flexible guidelines governing

police practices in this area. Effective law enforcement policies

mitigate against codification or precise delineation of the many

situations demanding police inquiry. The best method of

determining the propriety of such inquiries, which have been

taken almost as a matter of course by the New York Court of

Appeals, is a case by case determination. People v. Rosemond,

supra, at 104. People v. Rivera, 14 N.Y. 2d441, 445, 201 N.E.2d

32, 252 N.¥.S.2d 458 (1964), cert. denied, 379 U.S. 978 (1965);

Adams v. Williams, 407 U.S.143 (1972); Young v. United States,

435 F.2d 405, 408 (D.C. Cir. 1970).

Former Chief Justice Warren warned against a rigid ap-

plication of the exclusionary rule to situations not involving

unreasonable police conduct. Not to do so, according to the

former Chief Justice, would “exact a high toll in human injury

and frustration of efforts to prevent crime.” 392 U.S. at 15. Since

the instant record reveals only legitimate and restrained police

activity, no important constitutional question appears.

NOE ERT IST nS an ESE WEE RIOR SEE

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POOMGE OA YEO SERCO! pete aT Re Mon

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Pier serine ccna aa ih Ra 8 ANEMIA Le N TANTS AE

Despite petitioner's attempt to create a constitutional question

by distorting the issue, respondent submits that a thorough

examination of the record in this case reveals a complete lack of

any substantial constitutional issue, as well as an absence of

conflicting decisions in this area.

CONCLUSION

For the reasons stated herein, respondent respectfully urges

that the petition for a writ of certiorari be denied.

Respectfully submitted,

JOSEPH P. LORDI

ESSEX COUNTY PROSECUTOR

By

R. Benjamin Cohen

Assistant Prosecutor

Francis J. Badach

Assistant Prosecutor

Mary B. Rogers

Legal Assistant

On the Brief

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