WILDWOOD — When conducting an initial field inquiry, that point when they approach someone and ask if they would answer some questions, a police officer can’t ask the person, “Do you have anything illegal on you?” according to a recent appellate decision.
On May 26, 2007 just after 10 a.m., a Wildwood police officer was dispatched to investigate a report from a real estate office that there were trespassers at a house located on West 26th Street that had been listed for sale and was under contract.
When the officer arrived, Christopher Felix, now 38, was on the sidewalk. The officer questioned Felix about his reasons for being at the property. It was learned that Felix was house sitting for a friend Loretta Sacerdote, while she was incarcerated on drug charges.
While the officer was speaking with Felix, a police sergeant arrived as backup. The sergeant was familiar with the house because he lived across the street and had been called there several times with respect to drug activity.
At a hearing, the sergeant testified regarding what happened next.
“I initially confirmed that he was supposed to be on the property…And at one point I asked him if he had anything illegal on his person,” the sergeant said.
When asked how Felix responded, the sergeant said, “He said he did and handed me a package, a cigarette package.”
Contained in the package was a glass pipe used for smoking crack cocaine and a little silver wrapper with a green substance believed to be marijuana.
The sergeant testified that Felix was then officially arrested and searched. In his pants pocket, police also discovered an amount of cocaine.
Felix was indicted on drug charges on Sept. 11, 2007. He moved to suppress the evidence seized by police arguing that there was no lawful basis at the time for police to ask him if he had anything illegal on his person.
The judge, however, denied the motion to suppress, finding the sergeant had a “reasonable articulable suspicion to ask that question.”
“He was conducting a basic and general investigation. So for these reasons the Court concludes based upon the totality of those circumstances that the question posed…was rather innocuous…certainly did not contain what might be otherwise described as inculpatory language or any trick-like vocabulary,” the judge added
Since he found the question to be constitutionally consistent, he also determined that “of course the pat down search was incident to what this Court finds lawful, a lawful arrest…So for those reasons the motion to suppress is and must be denied. And on this record to this Court that’s not a close call,” the judge ruled.
Following the denied motion, Felix accepted a plea bargain for possession of a controlled dangerous substance on March 26, 2008. On July 11 that year, he was sentenced to five years in state prison with one year and five days of parole ineligibility.
According to the state Department of Corrections, Felix was incarcerated from July 11 through Nov. 1, 2008. He was released by the court from Southern State Correctional Facility in Delmont.
On March 10 of this year, Felix submitted an appeal arguing that the arresting officer was not permitted to ask if he had anything illegal on him after he established that Felix was not trespassing, so the evidence must be suppressed.
Appellate Division Judges Mary Catherine Cuff and Alexander P. Waugh, Jr. decided the matter on April 8. They sided with Felix reversing the previous decision.
According to their opinion, the judges found nothing wrong with the police officers’ initial field inquiry, which is permissible so long as the questions are not harassing, overbearing, or accusatory in nature. During an inquiry, the person shouldn’t have to answer any questions or even listen to the questions. He or she can even walk away.
The judges found, however, that the initial field inquiry progressed into an “investigatory stop,” when the officer asked if Felix had anything illegal on his person. A stop is described as the point at which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. In this case, it was when police insinuated that Felix might have contraband in his possession.
“A person in Felix’s shoes reasonably would believe that he was the subject of a particularized investigation by the question presupposing the suspicion of criminal conduct,” the opinion stated.
The appellate judges found the original motion judge’s determination that the sergeant’s question was “innocuous” was incorrect as a matter of law.
According to the appeals court, the law permits a police officer to detain someone for a brief period, and to pat them down for the officer’s safety, if that stop 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.”
Even though the 26th Street residence was a known “crack house,” the judges found that was an insufficient reason for the stop, because Felix was there with permission of the resident.
“For the reasons stated above, we conclude that the motion judge erred in denying the motion to suppress. Consequently, we reverse the denial and vacate Felix’s conviction,” the judges stated.
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