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NJ Court Holds That Frisk Exceeded Bounds of Constitution


by in Criminal Appeals

State v. Donald Wright, unpublished opinion, App. Div. Docket No. A-0896-08T4 (July 14, 2010) – Convictions reversed, suppression ordered. “It is clear from Krissinger’s own testimony that his initial encounter with Wright was not a field inquiry. Based on his observations of Wright sitting on a bench that had a graffito on it and acting nervously, Krissinger formed the belief that Wright had committed an act of criminal mischief, approached him, told him he was investigating the graffito, and asked Wright if he had written it. The ‘accusatory nature’ of that initial encounter is inconsistent with the encounter being a field inquiry…. Krissinger’s intent to investigate Wright’s perceived criminal activity and the accusatory nature of his questioning was also inconsistent with a characterization of the encounter as an exercise in ‘community caretaking,’ State v. Bogan, 200 N.J. 61, 73 (2009), which is how the motion judge described it…. Because Krissinger’s initial encounter with Wright was neither a field inquiry nor an exercise in community caretaking, we must next determine whether the facts justified Krissinger in making an investigatory stop under Terry…. Our review of the record convinces us that, under the totality of the circumstances, the State has failed to demonstrate a reasonable and articulable suspicion to support Krissinger’s investigative detention of Wright…. Even taking Krissinger’s expertise as a special police officer into account, we simply fail to see how those facts, viewed objectively, could give rise to a reasonable and articulable suspicion that Wright had engaged in an act of criminal mischief…. Because we conclude that Krissinger lacked the reasonable and articulable suspicion required for a Terry stop, we hold that he violated Wright’s right to be free from unreasonable search and seizure … and that the stop was, consequently, unconstitutional…. Krissinger’s seizure of the plastic bag was virtually simultaneous with his unconstitutional seizure of Wright…. Although Wright might have been subject to prosecution for obstruction in hitting the papers out of Krissinger’s hands and running away, we find that those actions were not “intervening circumstances” that would remove the taint from Krissinger’s preceding unconstitutional seizure of both Wright and the plastic bag.”






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