State v. Nyema, a recent Appellate Division decision, is important because it helps to set parameters for what constitutes a sufficient basis for an investigatory stop.
The case arose from a convenience store robbery. The police had information that the robbery was committed by two black males who fled on foot. An officer in the area who was familiar with the location responded. Less than a mile from the store, he saw a vehicle traveling toward him and away from the store, pointed his spotlight into the vehicle and observed a male and female. Both occupants reacted in a way that displayed annoyance with the spotlight. The officer then saw a second vehicle traveling away from the store, shined his spotlight into that car and observed three black males. He testified that none of them responded in any way to the light, but just stared straight ahead. Thinking their reaction was “odd”, he decided to stop the vehicle. Other officers who arrived at the scene had learned that the robbery suspects were wearing black or dark clothing. The defendant was the front-seat passenger. While standing outside the vehicle, the officer who made the stop saw dark jackets on the floor behind the driver’s seat. Dispatch contacted this officer and told him the car was reported stolen. The vehicle’s occupants were ordered out of the car and arrested, and the officer who stopped the car searched it. He located, among other things, a red bandana under the hood with a gun wrapped inside. The occupants were searched and each had cash. The defendant and another occupant moved to suppress the evidence seized from the car. At the suppression hearing, the defendant’s father testified that he owned the car, that it was not stolen, and that he had not reported it stolen in the days preceding the stop. A police officer testified as to a report that the vehicle was stolen.
The motion judge found that none of the defendants had a reasonable expectation of privacy in the vehicle because it was stolen, and that the stop was lawful because the officer had a reasonable and articulable suspicion that the occupants had robbed the store. Incredibly, the judge noted that “the racial makeup of the occupants of the vehicle, three black males traveling away from the scene was the reasonable and typical suspicion for the officer to ultimately pull this car over”, and the clothing in the vehicle was lawfully seized under the plain view doctrine. That part of the suppression motion was denied; however, the judge suppressed the gun because it was taken from under the hood without a warrant.The defendants ultimately pled guilty, but reserved the right to appeal the suppression issue(s). The Appellate Division addressed two issues: first, whether the defendant had a reasonable expectation of privacy while traveling in his father’s car; and second, did the officer have a reasonable and articulable suspicion that the vehicle’s occupants had just robbed the store so as to justify the investigatory stop.
As to the first issue, the Appellate Division rejected the conclusion that the defendant had no reasonable expectation of privacy in the car because it was stolen, since there was no evidence that the car was stolen. The father previously testified that the car belonged to him and his son had not stolen it. The information that the police had did not establish that the car was stolen, but only that it was reported stolen. Accordingly, there was nothing demonstrating that the car was stolen when it was stopped. The defendant therefore had a reasonable expectation of privacy in the car which belonged to his father.
The Court also found that there was no basis for the vehicle stop. Ultimately, the officer stopped the car based on two pieces of information – the store was robbed by two black men who fled on foot; and a vehicle with three black men was driving away from the store sometime after the report of the robbery. This, said the Court, was the basis for a hunch, but not an investigatory stop. The officer did not know the suspects were wearing dark clothing until after he had stopped the car. He had no vehicle description, and was told that the suspects had fled on foot. The record did not state how much time had passed between the robbery and the stop. Following the officer’s logic, the police could have stopped all cars with two or more black males that were traveling close to the store. “Knowledge of the race and gender of criminal suspects, without more, is insufficient suspicion to effectuate a seizure.”
Nyema’s message is clear. An officer’s hunch is not a basis for an investigatory stop. Further, when heading into the suppression hearing, the State will need facts that justifed the stop, as opposed to the officer’s unsupported belief that his actions were appropriate.
James S. Friedman, Esq., is a criminal defense attorney centrally based in New Brunswick, New Jersey. Mr. Friedman represents defendants charged with crimes in the New Jersey Superior Court in all counties, the United States District Court in New Jersey and New York City, and all New Jersey Municipal Courts. If you have a charge in one of these courts, contact Mr. Friedman today to learn about your options, and to plan your defense.