COUNSEL'S COLUMN

By Frank Gennaro
Deputy Attorney General
New Jersey Division of Criminal Justice

APPELLATE DIVISION SUPPRESSES EVIDENCE IN A FIREARM CASE

In December of 2005, the Appellate Division, in State v. Marcellus Williams, ordered the suppression from evidence of a handgun seized from the defendant in a street encounter with police.

In 2002, police in Elizabeth received an anonymous telephone tip to the effect that there was a black male on a certain street who was selling drugs. The tip was received around 2 a.m., and the location mentioned was a high crime area which was “plagued with drug activity.”

Police officers responded to the location, where they observed two black males, each fitting the general description which had been received. Neither of the two was observed to be doing anything suspicious.

As the police approached the individuals, one man turned and walked away. Police approached the second person, Williams, to conduct what they described as an “interview.” Williams was described as appearing to be shocked and nervous. For the safety of the officers, the defendant was ordered to put his hands on his head for a pat down. Instead, Williams ran. He was apprehended and handcuffed, at which time it was discovered that he had a pistol in his waistband.

The Trial Court denied defendant’s motion to suppress evidence, after which he pled guilty to possession of a firearm by a convicted person. Williams was sentenced to 9 years with a 5 year period of parole ineligibility.

On appeal, the State did not allege a stop based on probable cause, and the Appellate Division determined that the facts were inconsistent with a “field interview.” The Court therefore considered whether the factual scenario represented a proper Terry stop, based upon the police having a reasonable, articulable suspicion of criminal activity.

The Appellate Division decided that the events that led to the arrest of Marcellus Williams did not constitute a proper Terry stop. In doing so, the Court reasoned that an anonymous tip alone does not supply a reasonable, articulable suspicion of criminality. The tip in this case was very general, indeed both individuals observed on the street fit the general description. The Court pointed out that a tip must be reliable in its assertion of illegality in order to provide a reasonable, articulable suspicion. The anonymous tip here was as to drug sales, and the police observed no narcotics activity.

The Court also noted that the mere nervousness of a defendant, or the fact that the defendant fled the scene, do not constitute bases for establishing a reasonable, articulable suspicion of criminality. Accordingly, the Court concluded that this was not a proper Terry stop, and ordered that the evidence seized be suppressed.