The State and Federal Constitutions guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures is “to be regarded as of the very essence of constitutional liberty.” Harris v. United States, 331 U.S. 145, 150 (1947). As courts have long recognized,

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

[Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891) (quoted in Terry v. Ohio, 392 U.S. 1, 6 (1968)).]

Warrantless searches and seizures are presumptively invalid. State v. Cooke, 163 N.J. 657, 664 (2000). When no warrant is sought, the state has the burden of demonstrating that the search falls within “one of the few well-delineated exceptions to the warrant requirement.” State v. Maryland, 167 N.J. 471, 482 (2001). Those exceptions are “jealously and carefully drawn.” Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971).

If the State does not meet that burden, all evidence derived from a warrantless search or seizure must be suppressed. Wong Sun v. United States, 377 U.S. 471, 484-88 (1963); State v. Smith, 155 N.J. 83, 100 (1998).

There are a myriad of daily street encounters between citizens and police that are initiated by the police for a wide variety of purposes. Not all such encounters constitute seizures.

Generally, police-citizen encounters occur at three distinct levels, but only two require constitutional justification. State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div. 2002). “It is well-settled that the police may arrest only if they have probable cause; may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds or suspicion.” State v. Rodriguez, 336 N.J. Super. 550, 558-59 (App. Div. 2001), rev’d on other grounds, 172 N.J. 117 (2002).

In State v. Davis, the New Jersey Supreme Court characterized the difference between a field inquiry and a Terry-stop as follows:

“[T]he critical inquiry would be whether the policeman, although perhaps making inquiries which a private citizen would not be expected to make, has otherwise conducted himself in a manner consistent with what would be viewed as a nonoffensive contact if it occurred between two ordinary citizens.”

[104 N.J. 490, 497 (1986)].

As the situation develops, “a single encounter may quickly escalate from an inquiry to a stop to an arrest requiring the criteria for each category to be applied as the situation moves from one category to the other.” State v. Alexander, 191 N.J. Super. 573, 576 (App. Div. 1983). An encounter between a police officer and a citizen that begins as a field inquiry “can be transformed into a seizure … if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” State v. Davis, 104 N.J. 490, 498 (1986) (emphasis supplied).

Although investigatory stops (“Terry stops”) are a recognized exception to the warrant requirement, they are valid only when the police have “reasonable suspicion” for suspecting the person stopped of criminal activity. Terry v. Ohio, 392 U.S. 1, 21 (1968). Courts must look at the totality of the circumstances – the whole picture – to decide whether the police had reasonable suspicion to conduct a stop.

The Supreme Court of the United States has defined reasonable suspicion as “ ‘a particularized and objective basis for suspecting the person stopped of criminal activity.’” Ornelas v. United States, 517 U.S. 690, 696 (1996) (quoting U.S. v. Cortez, 449 U.S. 411, 417-18 (1981)). Specifically, the arresting officer must be able to “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Alabama v. White, 496 U.S. 325, 330 (1990); Terry v. Ohio, 392 U.S. 1, 20-22 (1968); State v. Rodriguez, 172 N.J. 117, 127 (2002). “A search and seizure based on luck and hunch is a combination of insufficient constitutional ingredients.” State v. Patino, 83 N.J. 1, 7 (1980).

Is a suspect’s flight prior to encountering police alone sufficient to justify an investigatory stop? In other words, does pursuing a person who has attempted to terminate an encounter by departing turn an encounter into a seizure?

In Tucker, the New Jersey Supreme Court held that the police had no reasonable basis to stop the defendant merely because he fled when he saw their police car. Tucker, 136 N.J. at 170. That case arose out of an encounter between police and a young man sitting on a curb who fled after seeing a marked police car approach. The officers pursued the man and radioed for backup. A second police car on a nearby street responded to the call.

On seeing the second car, the defendant reversed course and was caught by the initial officers. He dropped a clear plastic bag, which was found to contain heroin. The court reasoned that the defendant could not have felt free to leave because a reasonable person would have believed that the police wanted to capture him, not just speak to him. The Supreme Court did not find the biblical observation that “[t]he wicked flee when no man pursueth’” to be a satisfactory explanation of why a man in an urban setting might run at the sight of the police. The Court reasoned, “That some city residents may not feel entirely comfortable in the presence of some, if not all, police is regrettable but true.” Id. at 169.

What other factors, alone, do not rise to the level of a reasonable and articulable suspicion to conduct an investigatory stop?

• A high crime area known for narcotics activity: As the Appellate Division said in State v. Kuhn, 213 N.J. Super. 275 (App. Div. 1986), reports of crime do not “transform a residential neighborhood into a no-man’s land in which any passerby is fair game for a roving police interrogation.” Id. at 281.

• An officer’s knowledge of a suspect’s prior criminal record: An officer’s knowledge of a suspect’s prior criminal record is not enough to justify a Terry stop or frisk. State v. Valentine, 134 N.J. 536, 548 (1994).

• Race, Ethnicity: “No rational inference may be drawn from the race of one to be detained that he may be engaged in criminal activities.” State v. Kuhn, 213 N.J. Super. 275, 281 (A.D. 1986). Thus, the fact that two Hispanics and a Caucasian were together in a “high crime” area could not be considered to support a Terry stop.” Id.

• Furtive Gestures: “Anxiety or nervousness in the face of approaching police officers can be common among the innocent and cannot alone betoken criminal activity or justify a reasonable suspicion that an anxious or nervous person had or was engaged in criminal activity.” State v. Williams, 381 N.J. Super. 572, 589 (A.D. 2005).