First, police officers must have a legitimate reason to stop and/or detain an individual. Reasonable suspicion that justifies a brief, investigatory stop, only exists if the person being stopped is engaged in, or is about to engage, in criminal activity. State v. Gamble, 218 N.J. 412, 428 (2014). A stop is only permissible if the officer can “point to a specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion, and an officer’s hunch is insufficient to justify a stop.” State v. Pineiro, 181 N.J. 13, 21 (2004).
Second, police officers are only allowed to conduct a “pat down,” also known as a Terry frisk, if the same 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.'” Terry v. Ohio, 392 U.S. 1 (1968); (see also State v. Pineiro, 181 N.J. 13, 20 (2004)). In justifying an investigatory stop based on reasonable suspicion, a police officer must “be able to articulate something more than an inchoate and unparticularized suspicion or hunch.” Terry, 392 U.S. 1, 27 (1968).
To determine whether reasonable suspicion exists at the time of the alleged unconstitutional conduct, a court must look at the totality of the circumstances and the totality of information within the officers’ knowledge at the time of the stop. State v. Davis, 104 N.J. 490, 504 (1986). There must be something in the activities of the person being observed or in his or her surroundings that affirmatively suggests particular criminal activity. Terry, at 21-22.
However, in 2022, the New Jersey Supreme Court held that “nervous behavior or lack of eye contact with police cannot drive the reasonable suspicion analysis given the wide range of behavior exhibited by many different people for varying reasons while in the presence of police.” State v. Nyema, 249 N.J. 509, 533 (2022). In some cases, a defendant’s alarmed reaction is asserted as justification for a stop, but in other cases, a defendant’s non-reaction is argued to form the basis for reasonable suspicion. See, e.g., United States v. Escamilla, 560 F.2d 1229, 1233 (5th Cir. 1977)
Additionally, police officers often rely on “tips” supplied by confidential informants, which is another factor to be considered in the reasonable suspicion analysis. State v. Richards, 351 N.J. Super 289, 300 (App. Div. 2002) (quoting State v. Caldwell, 158 N.J. 452, 467 (1999)). Whether a confidential informant’s tip provides law enforcement with reasonable suspicion is necessarily based on the “totality of the circumstances.” State v. Novembrino, 105 N.J. 95, 122 (1987). Two factors essential to the inquiry are the informant’s “veracity” and the informant’s “basis of knowledge.”
When defending a client, we must always consider the information possessed by law enforcement officers at the time of the stop, analyze the way in which law enforcement officers came to know of that information, and then assess whether the conduct of the officers was reasonable taking into consideration all relevant circumstances. This includes carefully analyzing the discovery provided, which may include police reports, incident reports, affidavits, body-worn camera recordings (BWC), motor vehicle camera recordings (MVR), computer-aided dispatch (CAD) reports, etc.
Marc A. Sposato is a criminal defense attorney at Triarsi, Betancourt, Wukovits & Dugan, LLC. If you believe you were the subject of an illegal stop and/or search, contact Attorney Marc Sposato at (908)-709-1700, or by email at ms@tbwdlaw.com. Attorney Sposato is a New Jersey Super Lawyer – Rising Star.