State v. Gibson – Warrantless Search for Trespassing

4-1-2449 State v. Gibson, Sup. Ct. (Albin, J.)

Written and Published by New Jersey Criminal Defense Lawyer, Jeffrey Hark of Hark and Hark

This case addresses the significant issue of a police arrest and search for a person walking down the street, late at night, in a high crime area, when the police drive by and allege that a person “defiantly trespassed” as opposed to loitering. The NJ Supreme court ruled today that without probable cause to arrest, the warrantless search of defendant at the station house cannot stand.

Factually, at about 3:20 a.m. on November 24, 2007, Officer Comegno observed, momentarily, defendant David Gibson leaning against an upraised porch on the Omega Community Center’s private property. In a window looking out onto the building’s porch, a posted sign read, “no loitering.” According to Officer Comegno, the Community Center is located in a high-crime area and its president had requested that the police make checks due to incidents of criminal mischief. As the patrol car approached, Gibson moved on, walking a city block before being stopped and questioned by Officer Comegno. The officer asked Gibson for identification, where he was coming from, and whether he had permission to be on the Community Center’s property. Gibson gave his name and explained that he was coming from his child’s mother’s home, which is located two blocks north of the Community Center, and that he was waiting for a ride. part of the key to this out’s decision is the following facts which were unsupported by any independently supportive evidence/testimony. Officer Comegno testified that Gibson appeared “very excited” and “somewhat evasive,” and that “he was looking around as though he was attempting to run.” The officer did not, however, elaborate on how Gibson was “evasive.” Based on his observations and interaction with Gibson, Officer Comegno concluded that Gibson had the intent to commit a defiant trespass, a petty disorderly persons offense, and arrested him. A subsequent search of Gibson at the police station uncovered thirteen bags containing crack cocaine. Gibson was charged with various drug crimes and subsequently moved to suppress the drug evidence, claiming that Officer Comegno did not have probable cause to make the arrest.

The trial court found that the officer had probable cause to make an arrest for defiant trespass and therefore was authorized to conduct a search incident to an arrest and then The Appellate Division affirmed the denial of the motion to suppress. State v. Gibson, 425 N.J. Super. 523 (App. Div. 2012). That court ruled Officer Comegno’s encounter with Gibson began as a field inquiry, and then evolved into an investigative stop given the officer’s “reasonable suspicion of criminal activity” based on “the lateness of the hour, [Gibson’s] immediate departure from the Omega property upon seeing the officer, and [Gibson’s] excited and evasive demeanor when questioned.” According to the appellate panel, the reasonable suspicion ripened into probable cause to arrest for defiant trespass “when [Gibson] failed to assert that he was on the Omega property with permission.” Even though the property owner posted a “no loitering” sign instead of a “no trespassing” sign, the panel maintained that there was probable cause to arrest for defiant trespass because the owner’s intent to keep others off the property was reasonably conveyed. The Court granted Gibson’s petition for certification. 212 N.J. 460 (2012).

This court ruled there is insufficient evidence in the record to support a finding that Officer Comegno had probable cause to arrest Gibson for defiant trespass; therefore, the subsequent search at the stationhouse was unconstitutional and the drug evidence seized during the search must be suppressed.

1. Under N.J.S.A. 2C:18-3(b), a person commits the petty disorderly persons offense of defiant trespass “if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given . . . in a manner . . . reasonably likely to come to the attention of intruders . . . .” This case deals only with the “enters” portion of the statute, which has no temporal requirement for a completed trespass. Provided sufficient notice is given against trespass, even a brief willful entry onto another’s property may constitute a violation of N.J.S.A. 2C:18-3(b). The relevant inquiry here is whether Gibson was given “notice against trespass” in a manner “reasonably likely to come to [his] attention” and in a form so that he knew that he was not “licensed or privileged” to set even a foot on Omega’s property or to lean against its porch. The answer depends on whether the “no loitering” sign gave sufficient notice to make a reasonable person aware that even a slight and brief incursion on the property was a prosecutable offense. (pp. 11-14)

2. “No loitering” does not convey the same meaning as “no trespassing.” As commonly understood and defined, “loitering” means remaining or lingering at a particular location for some indefinite period of time for no apparent purpose. On the other hand, trespass–particularly as used in the defiant trespass statute–prohibits the mere entering in a place when one is not licensed or privileged to do so. Unlike loitering, the “enters” portion of the trespass statute has no temporal element. Based on these commonly accepted definitions, it is fair to say that the “no loitering” sign in the porch window of the Omega Community Center communicated that a person should not be idly remaining or loafing on its property. (pp. 14-16)

3. The constitutionality of the arrest in this case, and the legitimacy of the subsequent stationhouse search, depends on whether there was probable cause to believe that Gibson was a defiant trespasser. Probable cause is a well- grounded suspicion that a crime has been or is being committed. In determining whether probable cause exists, a court must look to the totality of the circumstances, and view those circumstances from the standpoint of an objectively reasonable police officer. In addition, the State bears the burden of proving by a preponderance of the evidence that the officer had probable cause to make the arrest. Although the trial court’s credibility assessments are entitled to deference, the Court is not obliged to defer to the ultimate finding of probable cause when the facts and inferences do not support that conclusion. (pp. 17-24)

4. According to the record, Gibson was seen leaning on the porch for no more than a few moments before he began walking. As soon as the officer saw Gibson, Gibson moved on, but did not take flight or dart between buildings. Although Officer Comegno claimed that Gibson was “evasive” and looked as though he might “run,” he gave no factual support for those subjective feelings. In addition, although the officer cited, as one basis for making the arrest, Gibson’s failure to give “lawful reasons” for leaning on the porch, Gibson explained why he was on the street at that hour. The notice on the Omega property did not suggest that leaning on the porch for a very brief period of time would subject Gibson to a defiant trespass prosecution. Gibson was instead warned against loitering, which has a distinctly different meaning than trespass. Momentarily leaning against a building, or an upraised porch, on a city block, would not be considered loitering to an objectively reasonable citizen. If Gibson was not loitering, then Officer Comegno could not have formed a well-grounded suspicion that Gibson was defiantly trespassing. Therefore, the record does not support that Officer Comegno had probable cause to arrest Gibson for defiant trespass. The police station search cannot stand because it was incident to an unconstitutional seizure. (pp. 24-28)

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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