State v. Handy

Justice HOENS,

dissenting.

A lone Special Police Officer,1 charged with responsibility for enforcing municipal ordinances, confronted six men, each of whom *55was violating the ordinance that prohibits riding a bicycle on the sidewalk. As he approached, intending to issue a summons to each of them, he called for backup and, by the time the responding patrolman arrived, he had managed to detain all of the men.

In order to issue the summonses, the officers needed basic information about each individual’s name and address, but none of them had any form of identification. After asking each of them for their names and dates of birth, but lacking anything against which to verify the accuracy of the information that each provided, the patrolman radioed the information to the police dispatcher, seeking to learn whether any of the men was the subject of an outstanding warrant.

In searching multiple databases for a response about whether there were any active warrants for the six names that she had been given, the dispatcher found one that appeared, at least initially, to match. The dispatcher immediately alerted the patrolman that there was an active outstanding warrant for defendant. The patrolman, acting on that information, advised defendant about the warrant and placed him under arrest. In response, defendant raised no protest and did not suggest that he was not the subject of an outstanding warrant. In the search of his person that followed, the officer found narcotics and secured him in a patrol car.

Before the officer and defendant were able to return to the police station for processing on the charges, the dispatcher contacted the officer to alert him that there was a discrepancy between the information supplied by defendant and the information on the warrant. By that time, however, defendant had already been arrested and the illegal drugs he had in his possession had already been found.

There is no dispute about the differences between the information defendant had given and the identifying information in the *56warrant that the dispatcher told the patrolman was a match. They are comprised of a single different letter in the spelling of defendant’s first name and two different digits in the dates of birth. Although it is true that the person to whom the warrant was issued ten years earlier gave a California address, the warrant issued out of Trenton, a review of defendant’s “arrest jacket” included several different birthdates and social security numbers that he had given to police in the past, and, as the State has pointed out to this Court, he has used the alternate spelling of his first name in the past.

The question before this Court is whether the drugs found in the search incident to defendant’s arrest should be suppressed, a question that the majority answers in the affirmative. Applying the standard of objective reasonableness, see United States v. Ramirez, 523 U.S. 65, 71, 118 S.Ct. 992, 996, 140 L.Ed.2d 191, 198 (1998); State v. Bruzzese, 94 N.J. 210, 221, 463 A.2d 320 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984), the majority does not fault the action taken by the police officer, but instead rests its analysis on the shortcomings of the dispatcher.

The majority reasons that the dispatcher’s conduct fell short because, when confronted with the differences between the information provided by defendant and that in the warrant, the dispatcher could have asked the officer to make further inquiry of defendant or could have reported that there were no matching warrants. Because the dispatcher failed to make either of those choices, the majority concludes that the decision to alert the officer about an outstanding warrant was “plainly unreasonable.” Ante at 47,18 A.3d at 184.

There are at least three problems with that reasoning. First, although the suggestion that the dispatcher could have asked for more clarification seems reasonable enough, it ignores the urgency of the situation faced by the dispatcher trying to run down information on six separate individuals then confronting the officers on the street.

*57Second, the suggestion that the dispatcher reasonably could have told the officer that there were no warrants overlooks the reality that many people, including defendant, provide different spellings of their names or different birthdates when approached by police. Defendant himself, according to the record, had previously provided varying names and other identifying information when arrested prior to the events now before this Court. The majority suggests that it would have been reasonable for the dispatcher to simply advise the officer on the scene that there was no match. Authorizing that response, however, is untenable, for it would mean that only a perfect match would qualify as worthy of comment, in spite of the reality that an individual might be providing misinformation intentionally. That approach serves no purpose but to vastly, and needlessly, increase the risk to the safety of the officer on the scene.

Third, the majority’s approach leaves no room for the possibility of an innocent mistake, notwithstanding precedents holding otherwise from the United States Supreme Court, see Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148, 159-60 (1990) (holding that “room must be allowed for some mistakes” by police, such that, if they are reasonable, police may act on facts “leading sensibly to their conclusions of probability”), and from this Court, see Bruzzese, supra, 94 N.J. at 218, 463 A.2d 320 (explaining that focus must be on overall reasonableness of police conduct). Likewise, the majority overlooks the numerous precedents in which good faith police mistakes were not fatal to a valid arrest. See, e.g., State v. Diloreto, 180 N.J. 264, 280, 850 A.2d 1226 (2004) (concluding that officer’s reliance on erroneous National Crime Information Center was permissible within community caretaking rationale); State v. Pitcher, 379 N.J.Super. 308, 320, 878 A.2d 8 (App.Div.2005) (concluding that officer’s reliance on motor vehicle data base was reasonable although data was in error), certif. denied, 186 N.J. 242, 892 A.2d 1288 (2006); State v. Green, 318 N.J.Super. 346, 352, 723 A.2d 1012 (App.Div.1999) (concluding that because arrest of defendant based on valid war*58rant that named another individual was valid, evidence found during arrest would not be suppressed).

More troubling is the majority’s extension of the Fourth Amendment remedy of exclusion, which would appropriately apply had the police officer himself acted unreasonably, to the dispatcher’s conduct. Alternately criticizing and distinguishing as irrelevant the analytical approach adopted by the United States Supreme Court when it considered similar factual circumstances, see Herring v. United States, 555 U.S. 135,-, 129 S.Ct. 695, 702, 172 L.Ed.2d 496, 507 (2009), the majority concludes that suppression of the drugs found on defendant’s person is necessary “to assure that our own constitutional guarantees are given full effect.” Ante at 52, 18 A.3d at 187.

There is no doubt that police dispatchers serve an important role in law enforcement and that police officers must be able to rely on the information that dispatchers provide when carrying out their functions. But the majority’s decision gives the narrowest possible reading to the relevant guidance from the United States Supreme Court, see Herring, supra, 555 U.S. at-, 129 S.Ct. at 701-02, 172 L.Ed.2d at 505-06; Arizona v. Evans, 514 U.S. 1, 15, 115 S.Ct. 1185, 1193, 131 L.Ed.2d 34, 47 (1995), overlooking in the process that it is unlikely that applying the exclusionary rule will have its intended effect.

This is so for three reasons. First, the majority’s analysis imputes to the officer the mistaken decision made by the dispatcher and imposes a remedy, designed to deter police misconduct, in spite of the fact that the officer, as all concede, did nothing unreasonable. Second, there is nothing in this record that suggests that the dispatcher’s advice to the officer that there was a matching warrant was part of a larger plan or a regular effort to trample on the constitutional rights of defendant or anyone else and that corrective measures must therefore be imposed on all dispatchers by this Court. Third, there is little reason to believe that using the exclusionary rule in circumstances that amount to little more than a momentary and minor misreading will, as the *59majority hopes, result in more training or better attention to detail. See ante at 52-53, 18 A.3d at 187. On the contrary, the more likely outcome will be that dispatchers will hesitate or will waste precious time double-checking minor discrepancies while increasing the risks faced by our law enforcement officers in the field who are awaiting information.

As our United States Supreme Court has held, “[t]he Constitution does not guarantee that only the guilty will be arrested,” nor does it require the police to “perform an error-free investigation.” Baker v. McCollan, 443 U.S. 137, 145-46, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433, 442-43 (1979). Rather, it demands that the arresting officer exercise “ ‘due diligence in making sure that the person arrested and detained is actually the person sought under the warrant and not merely someone of the same or a similar name.’ ” Id. at 146, 99 S.Ct. at 2695, 61 L.Ed.2d at 443 (quoting McCollan v. Tate, 575 F.2d 509, 513 (5th Cir.1978) (citing Restatement (Second) of Torts § 125, comment d (1965))). See also Hill v. California, 401 U.S. 797, 802, 91 S.Ct. 1106, 1110, 28 L.Ed.2d 484, 489 (1971) (holding that person mistakenly arrested by police who had probable cause to arrest another was validly arrested). That it might have been more reasonable for the dispatcher to make a different choice does not support the majority’s conclusory pronouncement that “[tjhere was nothing reasonable about [the dispatcher’s] conduct[.]” Ante at 47, 18 A.3d at 184.

The exclusionary rule is a powerful and important tool designed to deter police misconduct. It is a remedy best reserved for circumstances in which there has been police misconduct or for behaviors, or patterns of behavior, that bespeak a deliberate, routine, or systemic violation of constitutional rights rather than, as here, a mistaken decision with which this Court, with the benefit of the pristine vision that hindsight provides, disagrees.

Notwithstanding the majority’s argument to the contrary, see ante at 53-54,18 A.3d at 187-88, the lens they use is precisely the pristine one illuminated by hindsight. To the majority, these are just a bunch of young fellows on their bicycles who posed no *60threat at all to the officers confronting them and a situation that provided the dispatcher with “the luxury of time and care.” Id. at 54,18 A.3d at 188.

The unfortunate reality that our law enforcement officers face is far different, as our case law makes plain. The use of bicycles to procure and transport illegal narcotics, for example, is commonplace. See State v. Citarella, 154 N.J. 272, 276, 712 A.2d 1096 (1998) (noting expert testimony that “it is common practice for drug purchasers to drive to Fort Lee, park their cars, and travel to New York on foot or bicycle to buy drugs”); State v. Kazanes, 318 N.J.Super. 421, 423, 724 A.2d 285 (App.Div.1999) (noting that drug transaction was conducted between individuals on bicycles); State v. Hughes, 296 N.J.Super. 291, 293, 686 A.2d 1208 (App.Div.) (noting expert testimony that “people either walking or bicycling between Camden and Gloucester City were usually carrying illegal drugs”), certif. denied, 149 N.J. 410, 694 A.2d 195 (1997).

More to the point for purposes of this appeal, this Court is well aware that bicycles can be and have been used to facilitate the commission of serious crimes, including carjacking, State v. Harris, 181 N.J. 391, 424-25, 859 A.2d 364 (2004), and murder, State v. Johnson, 120 N.J. 263, 273, 576 A.2d 834 (1990). To suggest that the officer who was confronted with these six men should have known that they were not “armed robbers, burglars, or rapists” and that there was no urgency requiring a prompt response from the dispatcher, ante at 53-54, 18 A.3d at 188, is to substitute the view as it now appears from the safe confines of an appellate chambers for the one faced every minute of every day by the officers on the streets.

For all of these reasons, I respectfully dissent.

For affirmance—Chief Justice RABNER, and Justices LONG, LaVECCHIA, and ALBIN, and Judge STERN (temporarily assigned)—5. For reversal—Justices RIVERA-SOTO and HOENS—2.

The modes and methods of the appointment, qualifications, training, powers and authority of special law enforcement officers are all governed by statute. *55See N.J.S.A. 40A: 14-146.8 to -146.18. A discussion of those particulars is neither relevant nor necessary to an analysis of this matter.