Opposition Brief — New Jersey v. Matthews (No. 08-473)

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF NEW JERSEY,

Petitioner,

v

Ve

CADREE B. MATTHEWS,

Responcent.

On Petition for a Writ of Certiorari

to the Superior Court of New Jersey,

Appellate Division

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

PcP rer

ecemcCer —

YVONNE SMITH SEGARS

Public Defender

AMIRA RAHMAN SCURATO

Assistant Deputy Public Defencer

Counsel of Record

31 Clinton Street, 9 Floor

P.O. Box 460035

Newark, NJ C710]

173-877-120

QUESTIONS PRESENTED FOR REVIEW

Whether this Court has jurisdiction to review a State Appellate

Division opinion that was plainly decided on adequate and

independent state grounds?

Whether a: anonymous tip, standing alone, 1s insufficient to justify a

Terrv v. Ohio, 393 U.S. 1 (1968), stop and frisk, as well as the resultant

search of a motor vehicle?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW. .......:sccsssssssesesesssssesecssmnnnnsneeesesneasseed

TABLE OF CONTENTS ..u.cscssssssssssssessssssssssssssssssvsssssvevssessssesscecceseesesssscesssnsasennssseel

TABLE OF AUTHORITIES. .....ssssssssssssscessssscsssssesssseeeesescessereereseserensessanssensssesenee Md

RESPONSE TO PETITION FOR A WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION...........00-4

OPINIONS BELOW .............0c..ceccssesvee ili decane

IE TLIIN ovcesscovesersscovssessossonsesnienenevesioprssneseess iammiinicnennamaa

CONSTITUTIONAL PROVISION INVOLVED . saslatesanigatiens wee

COUNTERSTATEMENT OF THE CASE... ai ecseeieneis einem

REASONS FOR DENYING THE WRIT .........:cscsscscssesessecsessssseessessenesssencesesssesnenee O

CONCLUSION 14

TABLE OF AUTHORITIES

CASES CITED: PAGE

tin

Alabama v. White, 496 U.S. 325 (1990) ......csccsssssssseccsseecssuseessnesssensssnerssneersnetion 10

Arizona v. Evans, 514 U.S. 1 (1995)... essecseeseseeneeesenensereessseneneesnsenensensenenensensres 2

Florida v. JL. 329 U.S. 266 (2000) ...cccescsseseeseeseeseenseeesereseenenesserensncenene passim

Michigan v. Long, 463 U.S. 1032 (1983)......-sssssssssssssssssssessseseeeeesresssssnsssnsnaneenssnee 2

State v. Alston, 88 N.J. 211, 440 A.2d 1311 CR soe oi ciiekevencnduscrtccuiabbaess neserunsians fs)

State v. Goree, 327 N.J. Super. 227, 742 A.2d 1039 (App. Div. 2000)............. 2, 12

State v. Matthews, 196 N.J. 344, 953 A.2d 763 (2008) .........seessesssseeessserseeeneeeens 1

State v. Matthews, 398 N.J. Super. 551, 942 A.2d 797 (App. Div. 2008)... l

State v. Richards, 351 N.J. Super. 289, 798 A. 2d 136 (App. Div. 2002)... 2, 10, 12

Terry v. Ohio, 392 U.S. 1 |, Sa EA Cer ae oe Pe Aveeno Peon? i, 11,138

United States v. Aguilera, 287 F. Supp. 2d 1204 (E.D. Cal. 201 | | SIT Rees 7

United States v. Anderson, 339 F.3d 720 (8th Cir.),

cert, denied, 157 L. Ed. 2d 762 (2008) ........ssscsssseseeesserenseeesneseerereseetsees Deere ;

United States v. Arjona-Martinez, 66 Fed. Appx. 526 (Sth Cir. I pinctscecrvonace

United States v. Blackshaw, 367 F. Supp. 2d 1165 (N.D. Ohio 2009) .........-. 9

United States v. Colon, 250 F.3d 130 (2d Cir. 2001). cece ieee? 8

Unite d States \ v. . Copening, 506 F.3d 1241 (10th Cir. 2007) cert. denied, 2008

U.S. LEXIS 4986 (2008) .......c.csccccscesssssssssssessreseeserensssseecsssesenseserenesennsnerereatorsesereee 9

United States v. Cortez, 449 U.S. 411, 101 I IS CI OF vienecseeease <xeveiores a

United States v. Elston, 479 F.3d 314 (4™ Cir), cert. denied, 1278.Ct. 2151

0, SO eee ee net Ree er eee s4

United States v. Elmore, 482 F.3d 172 (PA Cig. 2007) «.cccccccccncosecvesess 6

United States v. Harrell, 268 F.3d 141 (2d Cir. RE Iisa cay es 7

United States v. Heard, 367 F.3d 1275 (11th Cir.), cert. denied, 160 L. Ed. 2d

194.(20QA).....cccccccscccrccsscessssoscossorerersescessessssssevsnsccercenscsenensasosssacsscesseenseasenaccseseeceensess 8

United States v. Hicks, 531 F.3d 555 ( Pe iccevisvimdenvechaadansirnens 7

United States v. Holmes, 360 F.3d 1339 (D.C. Cir. 2004). cert. denied, 125 8.

Oe FI CII oeevccaxecenecdvesvecstpiassivessvevvensenvecsvens ee ce ate ee ee sane as Tad 8

United States v. Hughes, 517 F.3d 1013 ae leo eivtivausense 9

United States v. Muhammad, 463 F.3d 115 (2d Cir. | ROR 6

or s

United States v. Perkins, 363 F.3d 317 (4% Cir 2004). cert. denied. 543 U.S

RN oc esisirevsuemenovins Sa a gil cased NR SAUNMMCRED URE DE HIST THTTONENS g

United States v. Pleas, 2007 U.S. Dist. LEXIS 76237 (D. Mass. 2007) .............0 8

United States v. Reed, 220 F.3d 476 (6th Cir. 2000), cert. denied, 2001 LEXIS

UT CY aoc ciscccssccvceexsncssacscceccenstveqynesedt evaveueneevenenpuerverenssencesesanentescesennaseeveneee me

United States v. Ruidiaz, 329 F.3d 25 (1 Cir.), cert. denied,

OE Ee GE Ce en cuscsivcvsecescenscecicesvaneryvanveotatartevinreessns PEA eA A RE 6, 1]

United States v. gant 519 F.3d 1208 (10th Cir.), cert. denied

DOOS LEXIS 7262 (2008) ............scccccscccssssoesssosssvesessesccnrecseersesersesssnesresenseseessensenens 8

United States v. Terry-Crespo, 356 F. 3d 1170 (9 Cir. 2004)... eseeseeeteeteecnes 7

United States v. Torres, 534 F.3d 207 (3"¢ Cir. SN OU Set a eS a ee, 7

United States v. Ubiles, 224 F.3d 213 (8d Cir. 2000)... reeteeeeerensene 9

United States v. Wheat, 278 F.3d 722 (8% Cir. 200D) 0.0... eeeceeceeeeeeeeteeeseess 1)

United States v. Whitaker, 346 F.3d 902 (7th Cir. 2008)... eee eee

STATUTES CITED:

Wd. Stat. Ann, $20-58-4...........sssescssescsessersees.

N.J.A.C §13:20-33.7.......... ,

RESPONSE TO PETITION FOR A WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

The Respondent, Cadree B. Matthews, respectfully requests that a wnt ol

certiorari be denied to review the judgment of the Superior Court of New Jersey,

Appellate Division, entered in the aboverentitled proceeding on March 10, 2006,

Discretionary review of that opinion was denied by the New Jersey Supreme Court

on July 14, 2008.

OPINIONS BELOW

The Order of the New Jersey Supreme Court denying discretionary review In

this case 1s reported at State v. Matthews, 19b N.J. 344, 953 A 9d 763 (2008), and is

reprinted in the Petitioner's Appendix at la. The opinion and judgment of the

Superior Court of New Jersey, Appellate Division, which is the subject ot the

Petitioner's request for a writ of certiorari, 1s reported at State v. Matthews, 398

NJ. Super. 551, 942 A.2d 797 (App Div. 2008), and is reprinted in the Petitioner's

[he unreported opinion of the Superior Court of New

Qe

—

Appendix at 2a to 1lda

Jersey, Law Division, 1s reprinted in the Petitioner’s Appendix at 13a to 19a

JURISDICTION

Respondent submits that this Court lacks jurisdiction under 28 USC

to the suppression of evidence. Primary reliance was placed upon New Jersey cases

interpreting the New Jersey Constitution. As the opinion rests upon an adequate

and independent state ground, it is not subject to review by this Court. See Arizona

v. Evans, 514 US. 1, 6-7, 115 S.Ct. 1185, 1189-90 (1995); Michigan v. Long, 463

U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476-77 (1983).

The Appellate Division found dispositive the case of State v. Richards, 351

N.J. Super. 289, 303-04, 798 A.2d 136 (App. Div. 2002), in holding that an

anonymous tip, standing alone, cannot justily a stop and frisk. Additionally, the

court engaged in an extended analysis of state case law, including in particular

State v. Gorce, 327 N.J. Super. 227, 742 A.2d 1039 (App Div. 2000), in concluding

there was no articulable and reasonable basis for the stop and frisk. Goree was a

state-law ruling that preceded this Court's decision in Florida v. J.L., 529 U.S. 266,

120 $.Ct. 1375 (2000), to affirm the Florida Supreme Court's rejection of the stop

Although. in the present case, the Appellate Division also cited to J.L., this

]

state court decision does not fairly appear to rest primarily on federal law or to be

interwoven with such law Jurisdiction docs not therefore he. In the alternative

Respondent asks for a remand to the Superior Court of New Jersey, Appellate

Divisi n. 1or clariiication

CONSTITUTIONAL PROVISIONS INVOLVED

CONSTITUTION OF THE UNITED STATES AMENDMENT IV

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the persons or things to be

seized.

CONSTITUTION OF THE UNITED STATES AMENDMENT XIV

(NJor shall any State deprive any person of life, hberty, or property, without

due process of law; nor deny to any person within its jurisdiction the cqual

protection of the laws.

CONSTITUTION OF NEW JERSEY ARTICLE ], PARAGRAPH 7

he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated: and no

warrant shall issue except upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched and the papers and things to de

seized

COUNTERSTATEMENT OF THE CASE

‘ tlicers re l I I | I I

individual flashing a gun iv nurs } } 1 wit} . '

a spe hed | ck.) No testimony was p! med as | ther th format

curren from an earlier time period. T! nonvn w descript

tne su | ] ] | i I I cl

his 0) 1 rad } }

eyewll ne! l

rh } ] n i i la

was ved but the vehi lid apy ed by thre

n i r an 1 OF LU

place f and , :

The , ,

There ¥ vat t

disorderly conduct and resisting arrest. He then informed the police that the gun

belonged to him and the occupants of the vehicle did not know that he had placed

REASONS FOR DENYING THE WRIT

The Superior Court of New Jersey, Appellate Division, properly suppressed

the gun found in a vehicle. Based upon nothing more than an anonymous tip, the

court found that the search was conducted in violation of Respondent's

constitutional nghts

This case turns on the facts before it. No substantial question 1s presented. If

this Court disagrees with Respondent's jurisdictional argument, supra, and

determines that the opimon in question 1s subject to the Court's jurisdiction,

Respondent submits that certiorari sh yuld be demied because this case 1s no more

than a routine application of well-established search and seizure law. Although the

Petitioner seeks to use this case to reexamine the holding of /.L., no reason to

disturb it exists in this case. J.L. draws a bright line that “more” is needed than a

bare-boned anonymous tip. The cases that follow or discinguish JL. lay or fall upon

the particular facts of the searches inv lved in each case analyzed

A sampling of cases from the various circuits indicate that their rulings

distinguishing J.L. were clearly factually-based and did not question the holding of

JL. as it applies to anonymous Ups standing alone: United States v. Ruidiaz, 529

F.3d 25 (1 Cir), cert. denied, 129 5. Ct 140 (2008) (report cf gunfire along with

confirmatory observations); United States ' Elmore, 482 F.3d 172 (2d Cir. 2007)

(multiple calls from named caller, who was defendant's ex-girlfriend, over concern

that defendant was armed and might hurt someone). United States v. Muhammad.

63 F.3d 115 (2d Cir. 2006) (officers observed evasive action by velist)s United

States v. Harrell, 268 F.3d 141 (2d Cir. 2001) (anonymous caller reported men with

euns were in a described vehicle and taken a shot at the caller a week earlier. Police

spotted the vehicle with heavily tinted windows and a brake light problem, both in

| ’

violation of state law. Driver was removed and he fled. Search of driver's grab area

found proper); United States v. Torres, 534 F.3d 207 (3d Cir. 2008) (cab dnver

“sé

relaying personal observation of gun pointing as well as direction of travel of

suspect vehicle that cab driver was following) United States v. Elston, 479 F.3d 314

(4th Cir.) cert. denied, 127 S.Ct. 2151 (2007) (caller reporting drunk driver with gun

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threatening to let clips of ammunition “off in somebody"); United States v. Arjona

Martinez, 66 Fed. Appx. 525 (Sth Cir. 2003) (reliable informant tip regarding crug

smuggling along with corroboration by border patrol and consent search); United

G I

States v. Reed. 220 F.3d 476 (6th Cir. 2000), cert. denied, 2001 LEXIS 618 (2001)

(probable cause existed to arrest defendant for trespassing), United States v. Hicks

591 F 3d 555 (7th Cir, 2008) (named caller (describing himself) reported armed man

(describing suspect) beating a woman In | iller's home); United States v. Anderson,

99 F.3d 720 (8th Cir.), cert. denied, 157 L. Ed. 2d 762 (2003) multiple callers

reported enraged male walking with gun threatening a driver and getting into a

specini d tractor-trailer) United States \ Terry ( Trespo 356 F.3d 1170 (9th Cir

9004) (named victim reported having gun point d at him by a described suspect in a

| I I

specific location and during resultant patdown, gun foll from waistband); United

States v. Aguilera, 257 i oOupp 2d 1204 (E.D Cal. 2003) (one students parent

rep rted desi ription of armed student entering school and resultant patd wn

revealed gun in waistband): United States v. Sanchez, 519 F.3d 1208 (10th Cir.),

ert. denied 2008 LEXIS 7262 (2008) (police flagged down by a woman stating a

man was beating a woman at intersection and when police responded neighbors

pointed to an urgently departing vehicle): United States v. Heard, 367 F.3d 1275

(11th Cir.). cert. denied, 160 L. Ed. 2d 194 (2004) (police intervened in an argument

between defendant and a woman at a train station. The woman then advised the

officer that defendant was carrying a gun but she jumped on a train before giving a

statement. Officer had an opportunity to judge the demeanor and credibility of the

unknown woman and thus could conclude that she would have reliable information

about whether defendant possessed a gun); United States y. Holmes, 360 F.3d 1339

(D.C. Cir. 2004). cert. denied, 125 S. Ct. 1046 (2005) (pedestrian flagged down an

}

4

oflicer and reported seeing a Jescribed, intoxicatea man in the area brandishing a

I ar

tated. the various circuits have had

Since the ratiocination of w/.L. is clearly s

no difficulty in its application. The circuits are in solid agreement that an

anonvmous tip. without more. does not provide enough basis to sustain a stop 01

frisk. whereas when sufficient other facts do exist, the stop is found to be justified

United States v. Pleas, 2007 U.S. Dist. LEXIS 76237 (D. Mass. 2007) ‘anonymous

aller refus sive het ne revarding generally described male who had put a

cun to her sister th s earlier di istifv pat-frisk cf male sitting on!

x} , - _ f é + e ¢ { = ” 1 i) Fe |

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;

S 1 - _ J I A fel rally

1 pat-frisk of male exhibiting no

described male in an after-hours bar did not justify :

suspicious behavior); United States v. Ubiles, 224 F.3d 213 (3d Cir. 2000)

(anonymous tipster personally indicating that male at carnival had a gun in his

possession did not justify a pat-frisk of male exhibiting no suspicious behavior);

363 F.3d 317 (4th Cir. 2004), cert. denied, 543 U.S. 1056

(2005) (police relied upon confirmation of information, including suspicious

circumstances, to justify stop of vehicle where rifle was observed in plain view);

ited States v. Blackshaw, 367 F. Supp. 2d 1165 (N.D. Ohio 2005) (anonymous call

ispute in street did not justify pat-down of cccupants of parked vehicle

regarding

rvations and there was a lack of

where factual discrepancies existed in officer's cbs

= "i Io 7 "} Lane RAL WY An ) (74) ‘ )

suspicious behavior nited States v. Whitaker, 546 F.3d 902 (7th Cir. 2008) (tw

calls in succession, including one by a victim/relative, regarding armed male of an

arguing couple, together with police observations, justified search of vchicl

United States Hughes, 517 F.3d 1013 (8th Cir. 2008) (anonymous call 0

suspicious persons possibly trespassing did not justify pat-frisk of male nea bus

can be determined if the tip was conveyed in close proximity to the actual stop. The

record contains no facts upon which it can be determined if the caller was an

eyewitness or was reporting rumor. No ‘eatures existed, either supporting

reliability or narrowing the likely class of informants, to determine anything

regarding the caller. No information whatsoever was given about the person with

the gun — no gender, race, height and weight, clothing — no identifiers at all were

provided. Even J.L. had a description of the suspect and his visible attributes. /.L.,

529 U.S. at 268. Moreover, nothing in the tip indicates whether the gun was

awfully possessed.

An anonymous tip can form the basis for reasonable suspicion only if it is

accompanied by specific indicia of reliability. For example, the correct forecast of a

subject's “not easily predicted” movements noted in Alabama v. White, 496 U.S. 325,

332. 110 L. Ed. 2d 301 (1990), was the deciding factor in that “borderline” case. No

forecasting existed in this case as no predictive information was given

Due to the sparseness of the tip, the police were without means to test the

informant’s knowledge or credibility. Despite trying to verify the information, the

police ultimately lacked a reasonable basis for suspecting any of the occupants of

the vehicle of engaging in unlawful conduct. This was so even though tne report of a

sun ultimately proved correct. The officers’ suspicion that a gun was in the Durango

arose not from any observations of their own but “solely from a call made from an

Even assuming the flashing of a gun occurred, no criminal wrongdoing

necessarily occurred. New Jersey allows carry permits for guns under N.J. Stat.

Ann, §2C:58-4, As such, no known, definable criminal conduct was reported. The

mere possession of a gun is simply not illegal with a permit. Therefore, in this case,

the State has not even established any criminal conduct. Criminal conduct may be

presumed under certain circumstances where ongoing emergencies reveal by their

very nature that quick action is necessary. See Ruidiaz, 529 F.3d at 31 (report of

gunfire); United States v. Wheat, 278 F.3d 722 (8th Cir. 2001) (report of reckless

driver). The strong exigency rationales for quick police action are altogether absent

in this case.

Additionally, in undertaking the investigation of the situation, the police

uncovered no indications of criminality — no illegal or unusual conduct. Nothing

showed that “criminal activity may be afoot” as noted in Terry v. Ohio, 392 US. 1,

30, 88 S.Ct. 1868, 1884 (1968). The vehicle was parked in a well-lit business district.

None of the three occupants were engaged in any furtive or nervous behavior. There

were no threatening or unusual movements. The three cooperated fully and followed

all directives with their forced removal from the vehicle and their resultant pat-

down frisks. None attempted ta flee. When examining the facts of this case under

existing case law defining the scope of permissible stop and frisks, the stop clearly

axceeded the bounds defined.

JL. requires more than these facts before a search would be constitutionally

permissible. Some suitalle indication of corroboration was needed and vet was

conspicuously absent. Precedent establishes that based on the whole picture, the

detaining officers must have a particularized and objective basis for suspecting the

particular person(s) stopped of criminal activity. United States v. Cortez, 449 U.S.

411, 417-18, 101 S.Ct. 690, 694-95 (198).

Petitioner notes at page 7 that the legality of the stop of the vehicle 1s not at

issue in this petition. This is patently incorrect. Respondent specifically challenged

the legality of the stop below and continues to challenge the legality of the stop.

State case law expressly holds that an anonymous tip that an undescribed black

male in a public telephone bocth near a tire store in the early hours of the morning

was armed with a gun was insufficient to justify an investigatory stop, even when

the suspect declined to respond to police questioning. Richards, 351 N.J. Super. at

306, 798 A.2d at 146. An anonymous tip that an otherwise undescribed black man

in a green and purple multipurpose vehicle parked at a particular location was

carrying a gun did not provide the objectively reasonable suspicion required for an

investigatory stop unless it was sufficiently corroborated by other evidence. When

no suspicious conduct is cbserved pnor to law enforcement’s intrusion, the resultant

stop and the resultant search are illegal. Goree, 327 N.J. Super. at 240, 742 A.2d at

1047.

The Appellate Division's finding that a properly parked but occupied vehicle

at 2:30 a.m. justified a community caretaking inquiry to determine if help was

needed, is misplaced and is an improper finding under these facts.° Nonetheless,

> The Appellate Division states tie vehicle was parxed “on The Te adway" but the trial testimony :rdicates that the

vehicle was already parsed in a parking spet when the police came up behind it

the same court found that the resultant Terry pat-down searches and the search of

the vehicle exceeded any community caretaking justification.

Finally, Petitioner bases a large portion of his argument on the tinted

windows that were present on the Durango. Nothing in the record indicated that

they were other than factory-issue. As such, they are legal in New Jersey. No

testimony was given that additional, “after-factory” tinted material was added

which may have violated N.J. Stat. Ann. §39:3-74 (prohibiting windows which fail to

meet the standard in N.J.A.C §13:20-33.7). Petitioner's footnote 2 on page 15 1s

without basis in the record.

The rule of law remains that an anonymous tip, standing alone, cannot

justify a stop and frisk. The unanimous opinion of this Court in JL. provides clear

direction for courts to follow and apply to each case’s factual underpinnings and the

circuits have done so without difficulty. As there is nothing unique about the

instant matter and no substantial question is raised, the petition for writ of

certiorari should be denied.

CONCLUSION

Based on the foregoing arguments, Respondent respectfully urges that the

petition for a writ of certiorari be denied.

Respecttully submitted,

YVONNE SMITH SEGARS

Public Defender of the

State of New Jersey

For the Respondent

kj v4

BY: /P—_ 9

AMIRA RAHMAN SCURATO

Assistant Deputy Public Defender

Counsel of Record

Dated: December 23, 2008