State v. Nazier D. Goldsmith (085636) (Camden County & Statewide) ( 2022 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office
of the Clerk for the convenience of the reader. It has been neither reviewed nor
approved by the Court and may not summarize all portions of the opinion.
State v. Nazier D. Goldsmith (A-77-20) (085636)
Argued January 18, 2022 -- Decided July 5, 2022
PIERRE-LOUIS, J., writing for the Court.
In this case, the Court must determine whether reasonable and articulable
suspicion existed when a police officer conducted an investigatory stop of defendant
Nazier Goldsmith on a walkway adjacent to a vacant house.
On the evening of January 15, 2019, Officer Joseph Goonan and another
officer were on patrol in Camden in what they believed to be a “high-crime area”
known for shootings and drug dealing. While approaching the vacant house, the
officers observed two individuals standing in front of it. When the officers exited
their vehicle, the two individuals walked away. At the same time, a third person,
defendant, exited the walkway that leads to the rear of the house.
Based on his training, 20 years of experience, and his belief that the vacant
house was used for the sale of drugs and weapons, Officer Goonan found it
suspicious that defendant was on the walkway next to the vacant house and believed
defendant was engaged in drug dealing activity. The officers approached defendant,
blocked his path at the end of the walkway, and began questioning him, asking for
his name and for an explanation of his presence on that walkway.
According to Officer Goonan, defendant became nervous and looked up and
down the street; he started sweating, and his hands began to shake. Defendant
provided a name and informed officers that his identification was in his jacket
pocket. Because defendant’s demeanor made him nervous, Officer Goonan told
defendant that he would retrieve the identification from defendant’s pocket. At that
point, defendant stated, “I appreciate if you guys didn’t pat me down,” arousing
Officer Goonan’s suspicions even further.
Officer Goonan conducted a pat down for weapons. The officer felt a weapon
in defendant’s jacket pocket and retrieved a handgun. Defendant was arrested, and
police later recovered currency and drugs from defendant’s person. A search of the
walkway revealed drugs in baggies that were the same color as the baggies of drugs
found in defendant’s pockets.
1
Defendant was charged with weapons and drug offenses. Defendant moved to
suppress the gun and drugs, arguing that both the stop and frisk were unlawful. The
trial court granted the motion, finding the stop lawful but the frisk unlawful. The
Appellate Division reversed. Without addressing the initial stop, the appellate court
found that the frisk of defendant was objectively reasonable. The Court granted
leave to appeal. 248 N.J. 3 (2021).
HELD: The information the officers possessed at the time of the stop did not
amount to specific and particularized suspicion that defendant was engaged in
criminal activity. Therefore, the officers did not have reasonable and articulable
suspicion to initiate an investigatory detention of defendant, and the evidence seized
must be suppressed.
1. An investigative or Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968), is a
relatively brief detention by police during which a person’s movement is restricted.
Such a stop does not offend the Federal or State Constitution, and no warrant is
needed, if it is based on specific and articulable facts which, taken together with
rational inferences from those facts, give rise to a reasonable suspicion of criminal
activity. Although reasonable suspicion is a less demanding standard than probable
cause, it cannot be based on inarticulate hunches or an arresting officer’s subjective
good faith. Whether reasonable and articulable suspicion exists for an investigatory
stop is a highly fact-intensive inquiry that demands evaluation of the totality of
circumstances surrounding the police-citizen encounter, balancing the State’s
interest in effective law enforcement against the individual’s right to be protected
from unwarranted and/or overbearing police intrusions. The inquiry considers
numerous factors, including officer experience and knowledge. It is well-settled that
seemingly furtive movements by the suspect, without more, are insufficient to
constitute reasonable and articulable suspicion. And although the reputation of an
area may be relevant to the analysis, just because a location to which police officers
are dispatched is a high-crime area does not mean that the residents in that area have
lesser constitutional protection from random stops. (pp. 17-20)
2. To determine whether reasonable and articulable suspicion existed here, the
Court first considers when the investigatory stop commenced. Although officers did
not tell defendant to “stop” when he exited the walkway, they blocked his path, and
Officer Goonan acknowledged that defendant could not have moved forward freely
at that point. No reasonably prudent person would have felt free to leave when
officers stepped into the only path of egress and began asking questions, leaving
defendant no place to go but backwards. The moment officers impeded defendant’s
forward progress and began the questioning, the encounter became an investigatory
detention or stop. (pp. 20-22)
2
3. Turning to whether officers had reasonable and articulable suspicion to stop
defendant at that point in time, the Court stresses that Officer Goonan unequivocally
testified that he did not witness defendant interact with or engage in a hand-to-hand
transaction with the two men that left the scene, contrary to the trial court’s finding
that the two men were with defendant. As for defendant’s presence in a high-crime
area, the Court continues to view the impact of previous crimes in the same area as a
police encounter as a factor to be considered in the totality of the circumstances
when determining whether a stop was based on reasonable suspicion. However, the
State must do more than simply invoke the buzz words “high-crime area” in a
conclusory manner to justify investigative stops. Here, Officer Goonan’s vague
testimony fell short of providing factual support for his conclusory statement that
the area was high crime. The State must provide at least some evidence to support
the assertion that a neighborhood should be considered as “high-crime.” (pp. 22-26)
4. Here, even if Officer Goonan had provided more information regarding the
prevalence of crime in the area, that would have been insufficient to justify the stop
because the other factors on which the officers relied were also insufficient -- even
when taken together -- to form a reasonable and articulable suspicion that defendant
was engaged in criminal activity. The only information the officers possessed prior
to the stop was information that could be used to justify the stop of virtually anyone,
on any day, and at any time, based simply on their presence on that street. Officer
Goonan had a hunch that defendant was engaged in criminal activity. That hunch,
however, did not amount to objectively reasonable and articulable suspicion for an
investigatory stop. Because the stop here was unlawful, the Court does not reach the
lawfulness of the frisk. (pp. 26-28)
REVERSED. REMANDED for REINSTATEMENT of the suppression
order.
JUSTICE SOLOMON, dissenting, would defer to the trial court’s
conclusion as to the point at which defendant’s encounter with the police became an
investigative detention. Justice Solomon notes that the trial court had before it a key
piece of evidence -- a photograph of the walkway next to the vacant house -- that is
missing from the record on appeal. In Justice Solomon’s view, the majority’s
conclusion that the officers blocked defendant’s path forward is not supported by the
record, and the trial court’s conclusion that the seizure began when the officers
asked defendant for identification was not so clearly mistaken that the interests of
justice demand intervention and correction through appellate review.
CHIEF JUSTICE RABNER; JUSTICE ALBIN; and JUDGE FUENTES
(temporarily assigned) join in JUSTICE PIERRE-LOUIS’s opinion. JUSTICE
SOLOMON filed a dissent, in which JUSTICE PATTERSON joins.
3
SUPREME COURT OF NEW JERSEY
A-77 September Term 2020
085636
State of New Jersey,
Plaintiff-Respondent,
v.
Nazier D. Goldsmith,
Defendant-Appellant.
On appeal from the Superior Court,
Appellate Division.
Argued Decided
January 18, 2022 July 5, 2022
Ashley Brooks, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora, Public
Defender; attorney; Ashley Brooks, of counsel and on the
briefs).
Rachel M. Lamb, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause for
respondent (Grace C. MacAulay, Camden County
Prosecutor, attorney; Rachel M. Lamb, of counsel and on
the briefs).
Alexander Shalom argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation,
attorneys; Alexander Shalom, Jeanne LoCicero, and
Karen Thompson, on the brief).
1
Jennifer B. Condon submitted a brief on behalf of amicus
curiae Dr. Jeffrey Fagan, PhD (Seton Hall Law School,
Center for Social Justice, attorneys; Jennifer B. Condon,
on the brief).
JUSTICE PIERRE-LOUIS delivered the opinion of the Court.
In this case, we must determine whether reasonable and articulable
suspicion existed when a police officer conducted an investigatory stop of
defendant Nazier Goldsmith on a walkway adjacent to a vacant house. Two
police officers were on patrol in Camden in what they believed to be a “high-
crime area” known for shootings and drug dealing. While approaching the
vacant house, the officers observed two individuals standing in front of it.
When the officers exited their vehicle, the two individuals walked away. At
the same time, a third person, defendant, exited the walkway that leads to the
rear of the house.
Based on his training, 20 years of experience, and his belief that the
vacant house was used for the sale of drugs and weapons, Officer Joseph
Goonan found it suspicious that defendant was on the walkway next to the
vacant house and believed defendant was engaged in drug dealing activity. So
the officers approached defendant, blocked his path at the end of the walkway,
and began questioning him, asking for his name and for an explanation of his
presence on that walkway.
2
According to Officer Goonan, defendant became nervous and looked up
and down the street; he started sweating, and his hands began to shake.
Defendant provided a name and informed officers that his identification was in
his jacket pocket. Because defendant’s demeanor made him nervous, Officer
Goonan told defendant that he would retrieve the identification from
defendant’s pocket. At that point, defendant stated, “I appreciate if you guys
didn’t pat me down,” arousing Officer Goonan’s suspicions even further.
Officer Goonan conducted a pat down for weapons. The officer felt a
weapon in defendant’s jacket pocket and retrieved a handgun. Defendant was
arrested, and police later recovered currency and drugs from defendant’s
person. A search of the walkway revealed drugs in baggies that were the same
color as the baggies of drugs found in defendant’s pockets.
Defendant was charged with weapons and drug offenses. Defendant
moved to suppress the gun and drugs, arguing that both the stop and frisk were
unlawful because they were not based on reasonable suspicion.
The trial court granted the motion, finding the stop lawful but the frisk
unlawful. Because the trial court held the frisk to be unlawful, all the seized
evidence (the gun, ammunition, drugs, and money) was suppressed as fruit of
the poisonous tree.
3
The Appellate Division reversed. The Appellate Division did not
address the initial stop of defendant, analyzing instead only whether the frisk
was objectively reasonable. The Appellate Division found that based on the
totality of the circumstances -- including defendant’s presence in a high-crime
area and his behavior and body language -- the officer’s frisk of defendant was
objectively reasonable.
We granted defendant’s motion for leave to appeal regarding whether
officers had reasonable and articulable suspicion to stop and frisk him. We
find that the information the officers possessed at the time of the stop did not
amount to specific and particularized suspicion that defendant was engaged in
criminal activity. Therefore, the officers did not have reasonable and
articulable suspicion to initiate an investigatory detention of defendant. We
reverse the Appellate Division’s judgment and reinstate the trial court’s
suppression order. Because the initial stop was unlawful, we need not reach
the issue of the frisk of defendant.
I.
We rely on the testimony from the suppression hearing for the following
summary.
Officer Goonan was the only witness to testify at the hearing. Officer
Goonan testified that as part of his role in the Special Investigations Bureau,
4
he patrolled high-crime areas to look for drugs and weapons, and when he saw
a possible fugitive, he would ask the person for identification. He stated that
in his 20 years of experience, he had witnessed hundreds of drug transactions,
which he described as a buyer walking up to another person and exchanging
currency for small objects. Officer Goonan said that in his experience, drugs
are often stashed in alleyways. He further testified that he had recovered over
50 firearms and that, in his experience, firearms are commonly present at drug
transactions.
Officer Goonan explained that on the evening of January 15, 2019, at
approximately 6:00 p.m., he and another officer from the Camden County
Sheriff’s Office were on patrol in Camden. Officer Goonan testified that they
were patrolling the 1600 block of Holcaine Street, which Officer Goonan
identified as a “high-crime area” known for shootings and open-air drug
transactions. The officers approached a vacant house, where they believed
drugs were sold and weapons stored.1 According to Officer Goonan’s
testimony, the officers observed two individuals standing in front of the vacant
1
Officer Goonan did not testify as to how the officers knew the vacant house
was a location where drugs and weapons are sold, except for testifying that
after observing defendant in the walkway, he suspected “somebody was
dealing drugs . . . because of the numerous reports [he had] been having in the
area.”
5
house who walked away when the officers exited their vehicle. Although the
officers were not in uniform, they were wearing tactical vests marked with the
word “police” on the front and back. Officer Goonan stated that the officers
did not attempt to stop the two individuals, but that he “radioed to . . . another
car in the area the description of the two males that walked off.”
The following is an excerpt from Officer Goonan’s testimony regarding
his observations and conclusions:
PROSECUTOR: And can you describe what you saw
around 6 p.m. that day?
OFFICER GOONAN: Yeah. I was riding with my partner
at the time to come around the corner and observed two
males standing out front of the property, what’s known
where the drugs are usually sold. As we made our approach
we exited our vehicles. They walked away and at the same
time I observed a male coming out of the alleyway, I’m not
sure of the house address --
PROSECUTOR: Okay.
OFFICER GOONAN: -- but it was -- it’s a vacant house,
but it was an alley between -- along the side of it.
PROSECUTOR: So it was an abandoned house with an
alleyway beside it?
OFFICER GOONAN: Yes.
PROSECUTOR: And what did you think when you
observed that? Based on your training and experience, what
was --
6
OFFICER GOONAN: The two -- the two men that were
standing out front were there to purchase drugs.
PROSECUTOR: And did those two males see you?
OFFICER GOONAN: As we -- when we exited our vehicle.
We drive unmarked vehicles.
PROSECUTOR: Okay. So can you describe the actual
approach then?
OFFICER GOONAN: Came up to -- came up the street, like
I said. It’s only -- it’s not even a full -- full block. It’s,
maybe, one block. We came up, we exited the vehicle, and
at the same time [they] walked off and we observed a male
come out of the alleyway.
....
PROSECUTOR: And you said -- so you got out of your car
and you’re about to walk up to the male?
OFFICER GOONAN: Yeah. We were -- we were -- we
pulled up. Like I said, they didn’t recognize our car, the two
guys standing on the street. So we were, basically, only a
few feet from them.
PROSECUTOR: From -- from --
OFFICER GOONAN: The two males out front that walked
off. And then the male, [defendant], who came out of the
alleyway.
PROSECUTOR: Okay. And did you approach him?
OFFICER GOONAN: I did.
PROSECUTOR: And why is that?
7
OFFICER GOONAN: To ask him why he was coming out
of the alleyway. It was vacant property.
PROSECUTOR: Okay. And why did you -- based on your
training and experience, why did you think that was suspect?
OFFICER GOONAN: That’s a known drug area, and I
observed a male coming out -- I call it an alleyway. It’s
really not. It’s like a walkway, I guess, up against the side
of a house.
PROSECUTOR: Okay. And --
OFFICER GOONAN: To me that was suspicion somebody
was dealing drugs.
PROSECUTOR: And why was that suspicious?
OFFICER GOONAN: Only because of the numerous
reports I’ve been having in the area.
On cross-examination, Officer Goonan confirmed that the walkway on
the side of the house led to a backyard. Officer Goonan did not know whether
multiple homes were accessible via that walkway and backyard or whether all
the other surrounding properties were fenced in. Officer Goonan further
expressly confirmed that he did not witness a hand-to-hand transaction
between defendant and the two men who walked away.
Upon approaching defendant, Officer Goonan did not recall the officers
telling defendant to “stop” in order to initiate questioning him, but Officer
Goonan testified that when defendant “came out of the alleyway, we were two
-- two officers standing there.” Given where the officers were standing in
8
front of the walkway, they blocked defendant’s path forward. According to
Officer Goonan, defendant could not have moved forward freely, but “could
run back up that walkway,” essentially away from the officers.
The officers approached defendant and began questioning him. The
officers asked for his name, where he was from, whether he lived in the area,
whether he had identification on him, and for an explanation of his presence on
the walkway. According to Officer Goonan, defendant became nervous,
looked up and down the street, started sweating, and his hands began to shake.
Officer Goonan believed defendant’s behavior meant that defendant was
“doing something he shouldn’t be doing.” Officer Goonan maintained that
when the officers approached defendant, he was “free to leave” and neither
detained nor under arrest.
Defendant provided a name and informed officers that his identification
was in his jacket pocket. Because defendant’s demeanor made him nervous,
Officer Goonan told defendant that he would retrieve the identification from
defendant’s pocket. At that point, defendant stated, “I appreciate if you guys
didn’t pat me down.” Officer Goonan testified that defendant’s statement, in
addition to defendant’s nervous behavior, aroused Officer Goonan’s suspicions
even further. Officer Goonan testified that during the entire interaction with
9
the officers, defendant never reached for anything, was respectful, and did not
threaten the officers.
Officer Goonan proceeded to conduct a pat down for weapons due to the
officers’ belief that defendant was engaged in drug activity and the nervous
behavior he exhibited. During the pat down, Officer Goonan felt a weapon in
defendant’s jacket pocket and retrieved a handgun. Defendant was arrested,
and police later recovered currency and drugs from defendant’s pockets. A
search of the walkway uncovered several other baggies of drugs that matched
the color of the baggies found on defendant’s person.
II.
A.
In October 2019, a Camden County grand jury charged defendant in a
multiple-count indictment with second-degree unlawful possession of a
weapon, fourth-degree possession of weapon or device, and third-degree
possession of a controlled dangerous substance.
Defendant moved to suppress the evidence seized as the fruit of an
unlawful stop and frisk. After a hearing, the trial court first held that the
officers’ stop of defendant was lawful. The court found that once the officers
asked defendant for his identification, “what started as a field inquiry quickly
escalated to an investigatory stop” that “must have been supported by
10
reasonable suspicion of criminal activity.” The court held that based on the
totality of the circumstances, defendant’s detention was supported by
reasonable suspicion. The court made the following findings:
At the point where the encounter became an
investigatory stop, Officer Goonan knew that defendant
had been speaking with two other people after emerging
from a walkway,[2] and those two people walked away
upon seeing the officers. This information had
significant weight in arousing the officer’s suspicion
because he was in a high crime neighborhood. Coupled
with the fact that the officers observed defendant
looking furtively, saw his hands shaking, and despite
being early evening in January, noticed he was
sweating profusely, established a reasonable,
articulable suspicion that defendant was engaging in a
drug offense.
The court recognized that although presence in a “high crime, high violence”
neighborhood “by itself is not sufficient to justify either a stop or frisk, it is
often cited as a suspicion factor when combined with other more
individualized suspicious circumstances.” The court concluded that
[d]efendant’s nervousness, after emerging from the
walkway and coming in contact with two other
individuals,[3] bolsters the suspicion that he was
2
Officer Goonan did not testify that he observed defendant speaking to the
two individuals.
3
Despite the trial court’s findings, Officer Goonan did not testify that
defendant came in contact with the two individuals after emerging from the
walkway. Officer Goonan testified that the two individuals “walked away and
at the same time [he] observed a male coming out of the alleyway.” Based on
Officer Goonan’s testimony at the hearing, it seems the two men walked off
11
engaged in some form of wrongdoing, such as a drug
offense, consistent with the officer’s experience with
respect to persons who come out of walkways in this
high crime neighborhood.
The court then explained that simply because a stop is lawful, a lawful
frisk does not always follow. The court held that officers did not have an
objective basis to believe that defendant was armed and dangerous; the court
also found that a belief a person possesses drugs cannot alone be a basis for the
frisk. The trial court noted that the officers did not observe a bulge; the
alleged drug-related crime was not a weapons-related offense; and defendant
made no threatening movement. Noting that the officers had no prior contact
with defendant and had no reason to believe he was dangerous, the court found
defendant’s nervous behavior insufficient to warrant a frisk. The court also
stated that
the fact that defendant asserted his right to be free from
a frisk does not create the basis to believe defendant
possessed a weapon. If the assertion of a right became
a basis to establish the constitutionality of a search,
then there would be no need for the Fourth
Amendment’s warrant requirement.
and then defendant emerged from the walkway. Thus, the officers did not see
defendant interact or approach the two men at all since they were gone by the
time defendant emerged.
12
Based on the finding that the frisk was unlawful, the court suppressed all the
evidence seized, including the gun, ammunition, drugs, and money.
B.
The State filed an interlocutory appeal challenging the trial court’s order
suppressing the evidence. In the State’s view, the court misapplied the
investigatory frisk standard by failing to accept that the same reasonable
suspicion underlying a lawful stop can also be the basis for a frisk. The State
argued that it presented sufficient evidence of reasonable suspicion to frisk
defendant.
In an unpublished opinion, the Appellate Division reversed the trial
court’s order granting defendant’s suppression motion. The Appellate
Division found that based on the totality of the circumstances, including
defendant’s presence in a high-crime area, “defendant’s behavior and body
language,” and the officers’ belief that drugs had just been sold, the officers’
frisk of defendant was objectively reasonable. The court also noted that drug
dealers are known to frequently carry weapons. The Appellate Division stated
that if officers lawfully stop an individual, they may frisk the individual if they
have a reasonable and articulable suspicion that the person is armed and
dangerous. The Appellate Division relied on Officer Goonan’s experience and
training to conclude that, based on the circumstances, it was reasonable for
13
officers to believe they might be in danger and therefore it was proper to
conduct the frisk. The Appellate Division did not address the initial stop of
defendant because the trial court found the stop reasonable and the issue was
not raised in the State’s appeal. 4
We granted defendant’s motion for leave to appeal challenging the
legality of both the stop and the frisk of defendant. 248 N.J. 3 (2021). We
also granted leave to appear as amici curiae to the American Civil Liberties
Union of New Jersey (ACLU) and Jeffrey Fagan, Ph.D., through counsel
Jennifer Condon of Seton Hall University (Dr. Fagan).
III.
Defendant argues that the Appellate Division erroneously reversed the
trial court’s suppression order. According to defendant, the appellate court
found reasonable and articulable suspicion to stop defendant merely because
he was a black man in a police-designated and targeted “high-crime area.”
Citing New Jersey’s alarming racial disparities in policing, defendant insists
that “police designate communities of color high-crime areas” based on
4
In finding that the frisk was lawful, the Appellate Division noted that “the
officer believed he had just witnessed a drug sale between defendant and the
two unidentified men who quickly left the area.” Officer Goonan testified that
he suspected “somebody was dealing drugs,” and that he thought the two men
standing in front of the house were there to purchase drugs. Officer Goonan’s
testimony made clear that he did not witness a drug transaction, let alone any
interaction between defendant and the two men.
14
“entrenched stereotypes and racial bias against people of color.” Defendant
further argues that officers did not have articulable suspicion that defendant
was armed and dangerous. Defendant contends that the Appellate Division
erroneously substituted its own judgment for that of the trial court , that the
Appellate Division ignored New Jersey precedent that reasonable suspicion of
a drug offense does not warrant a frisk, and that a suspect’s reacting nervously
to police interrogation cannot provide a basis for reasonable suspicion.
Amici Curiae, the ACLU and Dr. Fagan, echo defendant’s arguments.
Dr. Fagan emphasizes that research has shown that the characterization of a
“high-crime area” is often linked to racial composition rather than crime rate.
Dr. Fagan argues that the resulting over-policing of “high-crime areas” based
on inaccurate data should not be a determinant of whether reasonable suspicion
exists. The ACLU adds that the police seized defendant before they asked for
his identification, arguing that the seizure took place for constitutional
purposes when the officers blocked defendant’s egress and began to ask him
questions.
The State argues that there was sufficient evidence to justify the stop and
frisk. The State contends that Officer Goonan had reasonable suspicion to stop
defendant, even without evidence that defendant was in a high-crime area.
Furthermore, the State argues that even without any direct interaction between
15
defendant and the two unidentified individuals, Officer Goonan’s belief that
defendant was about to engage in criminal activity suffices to support a finding
of reasonable and articulable suspicion in this case. The State again argues
that the trial court misapplied the frisk standard in focusing on the threat of a
gun rather than whether officers reasonably believed that the individual posed
a threat to officer safety.
IV.
A.
Our standard of review on a motion to suppress is deferential -- we
“must uphold the factual findings underlying the trial court’s decision so long
as those findings are supported by sufficient credible evidence in the record.”
State v. Ahmad, 246 N.J. 592, 609 (2021) (quoting State v. Elders, 192 N.J.
224, 243 (2007)). This Court defers to those findings in recognition of the trial
court’s “opportunity to hear and see the witnesses and to have the ‘feel’ of the
case, which a reviewing court cannot enjoy.” Elders, 192 N.J. at 244 (quoting
State v. Johnson, 42 N.J. 146, 161 (1964)). We ordinarily will not disturb the
trial court’s factual findings unless they are “so clearly mistaken ‘that the
interests of justice demand intervention and correction.’” State v. Gamble, 218
N.J. 412, 425 (2014) (quoting Elders, 192 N.J. at 244). A trial court’s legal
conclusions, however, and its view of “the consequences that flow from
16
established facts” are reviewed de novo. State v. Hubbard, 222 N.J. 249, 263
(2015).
B.
Under both the Fourth Amendment of the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution, “searches and seizures
conducted without warrants issued upon probable cause are presumptively
unreasonable and therefore invalid.” Elders, 192 N.J. at 246. “People,
generally, are free to go on their way without interference from the
government. That is, after all, the essence of the Fourth Amendment -- the
police may not randomly stop and detain persons without particularized
suspicion.” State v. Shaw, 213 N.J. 398, 409-10 (2012) (citing Terry v. Ohio,
392 U.S. 1, 9, 27 (1968)). Consequently, “the State bears the burden of
proving by a preponderance of the evidence that [the] warrantless search or
seizure ‘[fell] within one of the few well-delineated exceptions to the warrant
requirement.’” Ibid. (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)).
The exception at issue in this case is an investigative stop, also known as
a Terry stop,5 which is a procedure that involves a relatively brief detention by
police during which a person’s movement is restricted. See State v. Rosario,
229 N.J. 263, 272 (2017) (describing an investigative stop as a police
5
Terry, 392 U.S. at 1.
17
encounter during which an objectively reasonable person would not feel free to
leave). An investigative stop or detention does not offend the Federal or State
Constitution, and no warrant is needed, “if it is based on ‘specific and
articulable facts which, taken together with rational inferences from those
facts,’ give rise to a reasonable suspicion of criminal activity.” State v.
Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, 392 U.S. at 21).
Although reasonable suspicion is a less demanding standard than
probable cause, “[n]either ‘inarticulate hunches’ nor an arresting officer’s
subjective good faith can justify infringement of a citizen’s constitutionally
guaranteed rights.” State v. Stovall, 170 N.J. 346, 372 (2002) (Coleman, J.,
concurring in part and dissenting in part) (quoting State v. Arthur, 149 N.J. 1,
7-8 (1997)); accord State v. Alessi, 240 N.J. 501, 518 (2020). Determining
whether reasonable and articulable suspicion exists for an investigatory stop is
a highly fact-intensive inquiry that demands evaluation of “‘the totality of
circumstances surrounding the police-citizen encounter, balancing the State’s
interest in effective law enforcement against the individual’s right to be
protected from unwarranted and/or overbearing police intrusions.’” State v.
Privott, 203 N.J. 16, 25-26 (2010) (quoting State v. Davis, 104 N.J. 490, 504
(1986)). “An investigative detention that is premised on less than reasonable
and articulable suspicion is an ‘unlawful seizure,’ and evidence discovered
18
during the course of an unconstitutional detention is subject to the
exclusionary rule.” Elders, 192 N.J. at 247.
The inquiry is based on the totality of the circumstances and takes into
consideration numerous factors, including officer experience and knowledge.
Pineiro, 181 N.J. at 22. Our jurisprudence is well-settled that seemingly
furtive movements by the suspect, without more, are insufficient to constitute
reasonable and articulable suspicion. See Rosario, 229 N.J. at 277
(“Nervousness and excited movements are common responses to unanticipated
encounters with police officers on the road . . . .”); State v. Lund, 119 N.J. 35,
47 (1990) (“‘[M]ere furtive gestures of an occupant of an automobile do not
give rise to an articulable suspicion suggesting criminal activity.’” (quoting
State v. Schlosser, 774 P.2d 1132, 1137 (Utah 1989))).
With regard to presence in an area where criminal activity is prevalent,
although the reputation of an area may be relevant to the analysis, this Court
has held that “[j]ust because a location to which police officers are dispatched
is a high-crime area does not mean that the residents in that area have lesser
constitutional protection from random stops.” State v. Chisum, 236 N.J. 530,
549 (2019) (quoting Shaw, 213 N.J. at 420); see Illinois v. Wardlow, 528 U.S.
119, 124 (2000) (“An individual’s presence in an area of expected criminal
activity, standing alone, is not enough to support a reasonable, particularized
19
suspicion that the person is committing a crime.”); see also Pineiro, 181 N.J. at
31 (Albin, J., concurring) (“The words ‘high crime area’ should not be invoked
talismanically by police officers to justify a Terry stop that would not pass
constitutional muster in any other location.”). In Wardlow, the United States
Supreme Court explained that officers need not ignore the relevant
characteristics of a neighborhood, but that more is required to find reasonable
suspicion. 528 U.S. at 124.
In sum, the totality of the circumstances of the encounter must be
considered in a very fact-sensitive analysis to determine whether officers
objectively possessed reasonable and articulable suspicion to conduct an
investigatory stop. Gamble, 218 N.J. at 431; Pineiro, 181 N.J. at 22.
V.
Applying those principles to the present case, we find that the
information officers possessed at the moment they detained defendant did not
constitute reasonable and articulable suspicion that defendant was engaged in
unlawful activity.
A.
As a threshold matter, we must first determine when the investigatory
stop commenced. Although officers did not tell defendant to “stop” when he
exited the walkway, the two officers blocked his path, and Officer Goonan
20
acknowledged that defendant could not have moved forward freely at that
point. Officer Goonan testified that when defendant “came out of the
alleyway, we were two -- two officers standing there.” In other words, there
was no need for the officers to tell defendant to “stop,” because the two
officers standing at the end of the walkway sufficiently exerted their authority
such that an objectively reasonable person would understand the need to stop
and direct attention to the officers. The officers then began asking defendant a
series of questions about who he was and where he was coming from.
The trial court held that when the officers asked for defendant’s
identification, defendant was no longer free to go, and the encounter became
an investigatory stop because defendant reasonably believed he could not walk
away at that point. But even before asking defendant for identification, armed
officers wearing tactical vests with “police” written on the front blocked the
walkway as defendant emerged, preventing defendant from making forward
progress, and began asking him questions about why he was there and from
where he was coming. A reasonable person would not have felt free to leave
at that point.
Officer Goonan testified that defendant was free to leave and could have
turned around and “run back up that walkway.” In reality, had defendant
attempted such a maneuver after officers asserted their presence and authority
21
and began asking him questions, such action would likely be viewed as flight.
In any event, no reasonably prudent person would have felt free to leave when
officers stepped into the only path of egress from that walkway and began
asking questions, leaving defendant no place to go but backwards. The
moment officers impeded his forward progress and began the questioning, the
encounter became an investigatory detention or stop. See Rosario, 229 N.J. at
272. We now turn to whether officers had reasonable and articulable suspicion
to stop defendant at that point in time.
B.
Prior to approaching defendant, officers observed two men in front of a
vacant house on the 1600 block of Holcaine Street. According to Officer
Goonan, those men took off as soon as they saw the officers step out of their
unmarked police car wearing tactical vests labeled “police.” At the same time,
defendant emerged from the walkway. Officer Goonan unequivocally testified
that he did not witness defendant interact with or engage in a hand-to-hand
transaction with the two men that left the scene.
Notwithstanding that testimony, the trial court upheld the investigative
stop’s validity, in part, based on its finding that “Officer Goonan knew that
defendant had been speaking to two other people after emerging from the
walkway,” and stated that this “information had significant weight in arousing
22
the officer’s suspicion because he was in a high crime neighborhood.” The
trial court further found that “Officer Goonan observed defendant exit a
walkway and approach two individuals” and that the officer “observed the two
unidentified individuals with defendant look at him and then walk away.”
(emphasis added).
Officer Goonan testified, however, that the two men walked away and
defendant emerged from the walkway afterwards or simultaneously. No
testimony was elicited that defendant interacted or came in contact with the
men. Even the State conceded in its brief, and later at oral argument, that
“Officer Goonan did not testify that defendant approached or spoke with the
individuals in front of the property.” In short, the trial court’s findings -- to
which the court attributed significant weight in its determination that the
officers had reasonable and articulable suspicion to stop defendant -- did not
accurately reflect the evidence presented by the State through Officer
Goonan’s testimony. Those findings were not based on credible evidence in
the record and are therefore not entitled to deference. Based on the evidence
presented, we give no weight, let alone significant weight, to the trial court’s
finding that defendant interacted with the two individuals. 6
6
We do not suggest that even if Officer Goonan had seen defendant interact
with the two men that such interaction would have tipped the scales toward a
finding of reasonable and articulable suspicion of criminal activity. Three
23
As for defendant’s presence in a high-crime area, we decline defendant’s
and amici’s request that the Court abandon presence in a high-crime area as a
factor in determining whether reasonable and articulable suspicion exists. We
continue to view the impact of previous crimes in the same area as a police
encounter as a factor to be considered in the totality of the circumstances when
determining whether a stop was based on reasonable suspicion.
But, as we have held, just because crime is prevalent in a particular area
“does not mean that residents in those areas have lesser constitutional
protection from random stops.” See Shaw, 213 N.J. at 420. Law-abiding
citizens who live and work in high-crime areas undoubtedly want law
enforcement to be able to fully execute their duties and protect their
communities; at the same time, however, those individuals likely do not want
the necessary policing of their neighborhoods to occur at the expense of their
own constitutional rights of privacy and freedom. There is, to be sure, a
“narrow line that must be drawn to protect a citizen’s privacy and freedom of
movement and yet allow proper law-enforcement activities.” Davis, 104 N.J.
at 504-05.
people standing on the street interacting with each other, whether in a high-
crime neighborhood or not, is not suggestive of criminal activity without more.
24
The State must do more than simply invoke the buzz words “high-crime
area” in a conclusory manner to justify investigative stops. Here, Officer
Goonan’s vague testimony fell short of providing factual support for his
conclusory statement that the area was high crime.
Officer Goonan testified in very general terms that the 1600 block of
Holcaine is “a high-crime area.” The following is a portion of his testimony
on this issue:
OFFICER GOONAN: 1600 block of Holcaine is the
block we were on, and that’s a -- it’s a high crime area.
PROSECUTOR: Okay. And when you say high crime
area, what does that mean?
OFFICER GOONAN: Very well-known for -- for
weapons. In the past there’s been shootings and it’s an
open air drug -- drug sale.
....
PROSECUTOR: And you said you worked in [the 1600
block of Holcaine] before?
OFFICER GOONAN: Yes.
PROSECUTOR: Have you arrested fug[i]tives in that
area?
OFFICER GOONAN: I have.
PROSECUTOR: And have you seen drug transactions
in that area before?
OFFICER GOONAN: I have.
25
PROSECUTOR: Approximately how many?
OFFICER GOONAN: Five to ten.
Officer Goonan’s testimony provided nothing more than a general
description of a high-crime neighborhood, noting it is well known for
weapons, shootings, and drug sales. He noted that he had seen five to ten drug
sales on that block, presumably over the course of his 20 years as an officer,
but that testimony is unclear because the officer did not provide a timeline or
context for the drug sales he had witnessed. Furthermore, Officer Goonan
stated that he previously arrested fugitives in that neighborhood, but did not
indicate the approximate number of fugitives or a timeline during which those
arrests occurred. Again, as our caselaw has held, the character and prevalence
of crime in an area -- although insufficient on its own to support particularized
suspicion -- can be one factor in determining whether reasonable suspicion
existed. The State, however, must provide at least some evidence to support
the assertion that a neighborhood should be considered as “high-crime.”
In the present case, even if Officer Goonan had provided more
information regarding the prevalence of crime in the area, that would have
been insufficient to justify the stop because the other factors on which the
officers relied were also insufficient -- even when taken together -- to form a
26
reasonable and articulable suspicion that defendant was engaged in criminal
activity.
Officer Goonan supported his suspicion of defendant by claiming that
defendant was “coming out of a walkway between a vacant property which is
known for the sales of [drugs] and weapons” after the two unidentified
individuals walked away. Officer Goonan testified that he was suspicious of
defendant based on his training and experience that drugs and guns are often
stored in walkways, because of general “reports [he had] been having in the
area,” and because of his belief that criminal activity was taking place at the
vacant house.7 None of those non-specific, non-individualized factors,
however, “meet the constitutional threshold of individualized reasonable
suspicion” that this particular defendant was engaged in criminal activity. See
State v. Nyema, 249 N.J. 509, 532 (2022). Aside from defendant’s presence
on that walkway, none of those factors are specific to defendant engaging in
behavior indicative of criminal activity. The only information the officers
7
Officer Goonan further testified that after officers began questioning
defendant, he became nervous, looked up and down the street, started
sweating, and his hands began to shake. Having determined that the
investigatory stop commenced at the moment the officers blocked defendant’s
path and began the questioning, the observations of defendant’s nervous
behavior do not factor into a determination of whether officers possessed
reasonable and articulable suspicion before stopping defendant. Conduct
exhibited or “[i]nformation acquired after a stop cannot retroactively serve as a
basis for the stop.” State v. Nyema, 249 N.J. 509, 532 (2022).
27
possessed prior to the stop was information that could be used to justify the
stop of virtually anyone, on any day, and at any time, based simply on their
presence on that street.
An investigative detention “may not be based on arbitrary police
practices, the officer’s subjective good faith, or a mere hunch.” State v. Coles,
218 N.J. 322, 343 (2014). Officer Goonan had a hunch that defendant was
engaged in criminal activity. That hunch, however, did not amount to
objectively reasonable and articulable suspicion for an investigatory stop.
Because we hold that the officers’ investigatory detention of defendant
was unlawful, we do not reach the issue regarding whether officers had
reasonable and articulable suspicion to frisk defendant.
VI.
For the foregoing reasons, the judgment of the Appellate Division is
reversed, and the matter is remanded to the trial court to reinstate the
suppression order consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICE ALBIN; and JUDGE FUENTES
(temporarily assigned) join in JUSTICE PIERRE-LOUIS’s opinion. JUSTICE
SOLOMON filed a dissent, in which JUSTICE PATTERSON joins.
28
State of New Jersey,
Plaintiff-Respondent,
v.
Nazier D. Goldsmith,
Defendant-Appellant.
JUSTICE SOLOMON, dissenting.
Our jurisprudence recognizes that trial courts have a significant
advantage over appellate courts: the ability to see the witnesses and evidence
and get a “‘feel’ of the case.” State v. Elders, 192 N.J. 224, 244 (2007)
(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Accordingly, we
routinely defer to them even when we might have a different view of the facts.
In this matter, the trial court’s advantage is especially significant
because a key piece of evidence -- evidence I view as critical to the
determination of defendant’s suppression motion -- was before the trial court
but is missing from the record on appeal. That misstep should serve as a vital
reminder of the importance of preserving the record to facilitate proper
appellate review.
In this case, the trial court had that evidence before it when it decided
the point at which defendant’s encounter with the police became an
1
investigative detention. Accordingly, I would defer to the trial court’s
conclusion. Instead, the majority considers its review of a handful of lines
from a transcript to be a more accurate interpretation of the record. Thus, I
respectfully dissent.
I.
I add the following facts, collected from the record of the suppression
hearing. During defense counsel’s cross-examination of Officer Goonan,
counsel questioned Goonan on the officers’ positions during their encounter
with defendant in front of 1608 Holcaine Street in Camden. Holcaine Street is
narrow, such that “one car has to be coming one way.” Officer Goonan and
his partner parked right in front of 1608 Holcaine. 1608 Holcaine was -- in
Goonan’s words -- a “vacant” house bounded from behind by other houses.
After establishing that defendant was walking down the “alleyway” or
“walkway” next to 1608 Holcaine Street, which had other houses behind it,
defense counsel submitted into evidence a photograph of the walkway at 1608
Holcaine that, for reasons unknown to us, was not included in the record on
appeal. Goonan agreed that the photograph was an accurate representation of
the layout of 1608 Holcaine and the walkway adjoining it on the day of issue.
The trial court admitted the photograph without objection from the State.
2
Goonan explained that he and his partner exited the vehicle and began to
approach defendant, although neither told defendant to stop. Then the
following exchange occurred:
DEFENSE COUNSEL: So there was nowhere else he
could go but towards you guys at that point.
OFFICER GOONAN: He could run back up that
walkway.
DEFENSE COUNSEL: All right. But other than the
direction of which he’s going you are blocking his way
from going any further. Correct? You’re right at the
alley -- walkway. Correct?
OFFICER GOONAN: We -- out front of the house. He
came out of the walkway.
DEFENSE COUNSEL: Right. And you two are right
there in front of the house outside of the -- right in front
of the walkway. Correct?
OFFICER GOONAN: Yes. See -- you have the
picture, Ma’am?
DEFENSE COUNSEL: I can just --
OFFICER GOONAN: The concrete slab that’s out
front, it’s all concrete it’s not grass. We were on there
that’s where we pulled up to. He walked out of that
walkway.
Defense counsel then asked Goonan to circle the exact area in which he
and his partner were standing and then had Goonan initial the exhibit.
Soon after, the following exchange occurred:
3
DEFENSE COUNSEL: Now you said that when you
approached you were within a few feet of Mr.
Goldsmith. Correct?
OFFICER GOONAN: Yes.
DEFENSE COUNSEL: You were within an arm’s
reach of Mr. Goldsmith?
PROSECUTOR: Objection. He never stated
that.
DEFENSE COUNSEL: It’s a question. He said a few
feet, but --
THE COURT: Okay. So you want to know whether --
he’s characterizing it as arm’s length?
DEFENSE COUNSEL: That’s what I’m asking.
THE COURT: Okay.
OFFICER GOONAN: No. It wasn’t an arm’s length.
DEFENSE COUNSEL: Okay. So can you point to
somewhere in the room how far you were from Mr.
Goldsmith?
OFFICER GOONAN: Um, maybe that chair.
DEFENSE COUNSEL: Okay. And you’re pointing to
the second chair away from you. Correct?
OFFICER GOONAN: I am.
DEFENSE COUNSEL: Your Honor, I would like that
to reflect two feet, two and a half feet.
PROSECUTOR: I don’t -- I object to that
characterization.
4
THE COURT: I mean, I can’t -- I can’t characterize --
I can’t accept, without testimony from him, how far it
is, other than to say that it wasn’t arm’s length and it’s
two chairs.
DEFENSE COUNSEL: Okay. Based on the jury box,
you want me to get a measuring tape, your Honor?
THE COURT: Yeah. I mean, you could give him a
measuring tape, ask him to measure it and ask him --
DEFENSE COUNSEL: Okay.
THE COURT: -- what the distance is.
DEFENSE COUNSEL: All right, Judge. I don’t have
one on me.
THE COURT: Okay.
DEFENSE COUNSEL: I don’t know if there’s one
here, but, all right.
THE COURT: I see that it’s two chair lengths away.
DEFENSE COUNSEL: Okay.
II.
At the outset, I note that our standard of review is a deferential one. An
appellate court “should give deference to those findings of the trial judge
which are substantially influenced by his opportunity to hear and see the
witnesses and to have the ‘feel’ of the case, which a reviewing court cannot
enjoy.” Elders, 192 N.J. at 244 (quoting Johnson, 42 N.J. at 161). That “feel”
5
of the case is why “[a]n appellate court should not disturb the trial court’s
findings merely because ‘it might have reached a different conclusion were it
the trial tribunal’ or because ‘the trial court decided all evidence or inference
conflicts in favor of one side’ in a close case.” Ibid. (quoting Johnson, 42 N.J.
at 162)). Regarding suppression motions, we have stated:
Our system of justice assigns to the trial court the role
of factfinder in matters not relegated to the jury. Trial
judges in our Criminal Part routinely hear and decide
suppression motions in which defendants seek to
exclude evidence based on alleged violations of the
Fourth and Fifth Amendments of the United States
Constitution and corollary provisions of our State
Constitution and common law. Our trial judges have
ongoing experience and expertise in fulfilling the role
of factfinder.
[State v. S.S., 229 N.J. 360, 380 (2017).]
Thus in S.S. we concluded our standard of review is deferential when a
trial court makes “fact findings based solely on video or documentary
evidence.” Id. at 379; see also Elders, 192 N.J. at 244-45.
Accordingly, “[a] trial court’s findings should be disturbed only if they
are so clearly mistaken ‘that the interests of justice demand intervention and
correction.’ In those circumstances solely should an appellate court ‘appraise
the record as if it were deciding the matter at inception and make its own
findings and conclusions.’” Elders, 192 N.J. at 244 (quoting Johnson, 42 N.J.
at 162).
6
III.
A.
I agree with the majority that the threshold question in this appeal turns
on the exact moment the officers initiated a Terry1 stop. I also agree that the
appropriate standard for that inquiry is whether “‘an objectively reasonable
person’ would feel ‘that his or her right to move has been restricted.’” State v.
Chisum, 236 N.J. 530, 545 (2019) (quoting State v. Rosario, 229 N.J. 263, 272
(2017)). “The encounter is measured from a defendant’s perspective.”
Rosario, 229 N.J. at 273.
Our case law recognizes that when a police officer blocks an
individual’s path, the officer has placed that individual under investigative
detention, or a Terry stop, because an individual in such circumstances would
not feel free to leave. See, e.g., id. at 276; State v. Tucker, 136 N.J. 158, 166
(1994). But determining exactly when a police officer has “blocked” an
individual’s path -- thereby beginning a Terry stop -- is a fact-sensitive inquiry
that depends on many factors, including the distance between the officers and
the individual, their relative positioning, the officers’ demeanor and use or
nonuse of weapons, and the general circumstances and environment
1
Terry v. Ohio, 392 U.S. 1 (1968).
7
surrounding the encounter. See, e.g., Rosario, 229 N.J. at 273-74; United
States v. De Castro, 905 F.3d 676, 679 (3d Cir. 2018); United States v. Cloud,
994 F.3d 233, 242 (4th Cir. 2021); State v. Lewis, 217 A.3d 576, 588 (Conn.
2019); Bailey v. State, 987 A.2d 72, 82 (Md. 2010). None of these factors are
determinative. Instead, we consider the totality of the circumstances. See
Rosario, 229 N.J. at 273.
Here, the trial court did not come to an explicit finding that the officers
blocked defendant’s path. Nor did the court find that the officers brandished
or drew their weapons or acted in way that was disrespectful to defendant prior
to asking him for identification. That moment, in the trial court’s view, was
the moment the seizure began.
The majority concludes that the trial judge’s finding that defendant had
interacted with the two other individuals is not supported by the record and
that Goonan’s nonspecific testimony about the area of the encounter is
insufficient to support a finding that defendant was in a high-crime area. See
ante at ___ (slip op. at 23-27). I agree. But those facts have little relevance to
when the investigative stop began. The most important facts to that
determination are the exact locations of the officers, of defendant, the distance
between them, and the surrounding environment. See Rosario, 229 N.J. at
273-74. The trial court concluded that the Terry stop began when the officers
8
asked for defendant’s identification -- an act that we have previously held is
See id. at 273 (“Here, the officer
consistent with an investigative detention. ------
immediately asked for defendant’s identification. Although not determinative,
that fact only reinforces that this was an investigative detention.”).
Yet the majority asserts that “[g]iven where the officers were standing in
front of the walkway, they blocked defendant’s path forward. According to
Officer Goonan, defendant could not have moved forward freely, but ‘could
run back up that walkway,’ essentially away from the officers,” which would
likely be considered flight. Ante at ___ (slip op. at 9). The majority later
claims that “Officer Goonan acknowledged that defendant could not have
moved forward freely at that point. Officer Goonan testified that when
defendant ‘came out of the alleyway, we were two -- two officers standing
there.’” Ante at ___ (slip op. at 20-21). Thus, in the majority’s view, “the two
officers standing at the end of the walkway sufficiently exerted their authority
such that an objectively reasonable person would understand the need to stop
and direct attention to the officers.” Ante at ___ (slip op. at 21).
The record does not support the majority’s conclusion. Goonan’s
suggestion that defendant could have run back up the walkway and his
statement that he was standing there when defendant came out the alleyway do
not lead to the conclusion that defendant could not move forward freely or that
9
the officer was blocking defendant from leaving the area. Those statements do
little to explain Goonan’s exact location, defendant’s exact location, their
relative positions, or the general geography of the encounter, a problem we
have long confronted in our function as an appellate tribunal reviewing a
record consisting solely of transcripts. See S.S., 229 N.J. at 374-81; Elders,
192 N.J. 243-44.
Perhaps cognizant that Goonan’s confusing testimony might frustrate
future appellate review, defense counsel attempted to clarify the officers’
position using a photograph of 1608 Holcaine. She suggested in a question
that the officers “were blocking [defendant’s] way from going any further” and
Goonan responded that he and his partner “were out front of the house.” That
answer suggests that the officers were not in defendant’s path but in front of
the house that adjoins the walkway. He then marks his exact location on the
photograph, which was in evidence at the time.
Responding to further questioning, Goonan denied being within arm’s
reach of defendant. From the discussion following that question, we know that
the distance between defendant and the officers was somewhere between an
arm’s length and “two chair lengths,” a distance that likely varies by the
courtroom, and by the chair.
10
From the above, it cannot be ascertained that the officers blocked the
defendant’s escape. Even assuming that they did, it cannot be determined at
what point in time they began to do so.
From those vague facts, the majority believes it understands this
encounter better than the trial judge who saw (1) an accurate representation of
the layout of 1608 Holcaine and possibly the properties immediately
surrounding it; (2) Goonan’s recollection of the exact location of the officers
marked on that photograph; and (3) Goonan’s recollection of the exact distance
between himself and defendant demonstrated in the courtroom. “Permitting
appellate courts to substitute their factual findings for equally plausible trial
court findings is likely to ‘undermine the legitimacy of the [trial] courts in the
eyes of litigants, multiply appeals by encouraging appellate retrial of some
factual issues, and needlessly reallocate judicial authority.’” ---
S.S., 229 N.J. at
380-81 (alteration in original) (quoting Fed. R. Civ. P. 52(a) advisory
committee’s note to 1985 amendment).
A fact-sensitive inquiry does not entail ignoring facts before the trial
court, even when they are not readily apparent from the record on appeal.
That is the very essence of the “feel of the case.”
11
B.
We have long acknowledged that law enforcement officers face
substantial, sometimes lethal, danger. See, e.g., State in Int. of H.B., 75 N.J.
243, 246 (1977) (“This volatile mixture, of violence and the surfeit of
handguns . . . , presents . . . a particular threat to the uniformed law
enforcement community . . . which cannot be ignored in considering the
constitutionality of the police conduct here involved.”); Terry v. Ohio, 392
U.S. 1, 24 (1968) (“[W]e cannot blind ourselves to the need for law
enforcement officers to protect themselves and other prospective victims of
violence in situations where they may lack probable cause for an arrest.”);
State v. Valentine, 134 N.J. 536, 545 (1994) (“As the front line against
violence, law-enforcement officers are particularly vulnerable to violence
often becoming its victims.”); State v. Radel, 249 N.J. 469, 505-06 (2022)
(describing situation officers faced as “dynamic and uncertain” and how the
officers in that case “faced unexpected and fast-evolving circumstances that
signaled danger and the need for prompt action to safeguard their lives”).
Such dangers continue to face law enforcement today. See Press
Release, Federal Bureau of Investigation, FBI Releases 2021 Statistics on Law
Enforcement Officers Killed in the Line of Duty (May 9, 2022) (noting that 73
12
officers were feloniously killed in the United States in 2021, an increase from
46 in 2020).
Small distances -- like small measures of time -- can be of great
constitutional significance in assessing police-citizen encounters. See Radel,
249 N.J. at 506; State v. Bard, 445 N.J. Super. 145, 158-59 (App. Div. 2016).
Thus, there are consequences attached to the way we, as appellate judges,
assess the facts. Keeping that in mind, we have held that “[t]he reasonableness
of police conduct is assessed with regard to circumstances facing the officers,
who must make split second decisions in a fluid situation.” Bard, 445 N.J.
Super. at 157. In “those more murky and difficult situations . . . law-
enforcement officers must make instantaneous decisions about whether a
frisk,” a stop, or some other act is justifiable. Valentine, 134 N.J. at 545.
Such encounters are not the most amenable to appellate review of cold, paper
records.
C.
It is unfortunate that we do not have the photograph before us, but we
have long acknowledged that we, as appellate judges, will not have the
perspective the trial court did. Based on that perspective, the trial court below
did not find that the officers blocked defendant’s path such that a reasonable
person would not feel free to leave. Yet the majority finds that the officers
13
blocked the defendant’s path based on even less evidence than the trial court
had.
This sparse and vague record does not support the majority’s conclusion
that the officers blocked defendant’s “only path of egress from that walkway
and began asking questions, leaving defendant no place to go but backwards.”
Ante at ___ (slip op. at 22).
“A disagreement with how the motion judge weighed the evidence in a
close case is not a sufficient basis for an appellate court to substitute its own
factual findings to decide the matter.” Elders, 192 N.J. at 245. The trial court
here was not “so clearly mistaken ‘that the interests of justice demand [our]
intervention and correction.’” Elders, 192 N.J. at 244 (quoting Johnson, 42
N.J. at 161). Rather than follow longstanding principles of appellate review,
the majority here, once again, decides that it understands the facts better than
the factfinder.
Accordingly, I dissent. Because the majority does not address the frisk,
or whether it was justified by reasonable and articulable suspicion at that
moment, I do not either.
14