# Opposition Brief — Sheffield v. New Jersey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0685%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1973 - **Citation:** 414 U.S. 876 ## Text EES ey PMR Ri I 88M MN NER AIEEE A MAREE Cie HES TABLE OF CONTENTS Pee ee eee ee ee ee oe ee eee 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 6,7 9 6,9 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 -l- 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 -6- | | ‘ 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 wares eee | DRA nds SRE A SARS RR FIN POOMGE OA YEO SERCO! pete aT Re Mon ary: Bie hes 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 -10— --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0685%3A1. Public record. Not legal advice.