                                                      SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

                                    State v. David M. Gibson (A-27-12) (070910)

Argued October 8, 2013 -- Decided January 7, 2014

ALBIN, J., writing for a unanimous Court.

         In this appeal, the Court considers whether there was probable cause to arrest defendant for defiant
trespass. Without probable cause to arrest, the warrantless search of defendant at the stationhouse cannot stand.

         At about 3:20 a.m. on November 24, 2007, Officer Wayne 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. 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.

          After a suppression hearing at which only Officer Comegno testified, 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. The Appellate Division affirmed the denial of the motion to suppress. State v. Gibson, 425 N.J. Super.
523 (App. Div. 2012). The panel stated that 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).

HELD: 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



                                                            1
“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)

         The judgment of the Appellate Division is REVERSED, and the matter is REMANDED for proceedings
consistent with this opinion.

     CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and PATTERSON, and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE ALBIN’s opinion.




                                                           2
                                      SUPREME COURT OF NEW JERSEY
                                        A-27 September Term 2012
                                                 070910

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

DAVID M. GIBSON

    Defendant-Appellant.


         Argued October 8, 2013 -- Decided January 7, 2014.

         On certification to the Superior Court,
         Appellate Division, whose opinion is
         reported at 425 N.J. Super. 523 (2012).

         Alyssa A. Aiello, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph E. Krakora, Public Defender,
         attorney).

         Steven A. Yomtov, Deputy Attorney General,
         argued the cause for respondent (John J.
         Hoffman, Acting Attorney General, attorney).


    JUSTICE ALBIN delivered the opinion of the Court.

    The right to walk freely on the streets of a city without

fear of arbitrary arrest is one of the guarantees protected by

the Fourth Amendment of the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution.   A person

cannot be arrested unless there is probable cause to believe

that he has committed or is committing an offense.   An arrest




                                1
without probable cause is an unreasonable seizure in violation

of both the Federal and State Constitutions.

    In the early morning hours of November 24, 2007, a police

officer on vehicular patrol observed, momentarily, defendant

David Gibson leaning against a building’s upraised porch on a

street corner in the City of Burlington.   In a window looking

out onto the building’s porch, a posted sign read, “no

loitering.”   Gibson moved on, walking a whole city block before

he was stopped and questioned by the officer.   According to the

officer, the ground on which Gibson stood as he leaned against

the porch was private property.   On that basis, in addition to

Gibson’s nervous demeanor after the stop, the officer concluded

that Gibson had the intent to commit a defiant trespass, a petty

disorderly persons offense, and arrested him.

    Gibson moved to suppress drug evidence discovered during a

search at the stationhouse because, as he claims, the officer

did not have probable cause to make the arrest.   After a hearing

at which the arresting officer testified, the trial court denied

the suppression motion, and the Appellate Division affirmed.

    Even given our deferential standard of review, we cannot

hold that there is sufficient credible evidence in the record to

support the trial court’s finding that the officer had probable

cause to believe that Gibson was a defiant trespasser.   Because

we conclude that the trial court’s finding of probable cause was


                                  2
clearly mistaken, we must reverse the Appellate Division and

remand for entry of an order suppressing the evidence.



                                I.

    Defendant was charged in a Burlington County indictment

with second-degree possession of a controlled dangerous

substance (CDS), namely cocaine, with intent to distribute

within 500 feet of certain public property, N.J.S.A. 2C:35-7.1;

third-degree possession of CDS with intent to distribute within

1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree

possession of CDS with intent to distribute, N.J.S.A. 2C:35-

5(a)(1) and -5(b)(3); and third-degree possession of CDS,

N.J.S.A. 2C:35-10(a)(1).   Gibson moved to suppress CDS evidence

discovered on him after his arrest for defiant trespass.    He

claimed that his arrest was an unconstitutional seizure and

therefore the following search invalid, requiring suppression of

the evidence under the exclusionary rule.

    At the suppression hearing in Superior Court, Burlington

County, only one witness testified, Officer Wayne Comegno of the

Burlington City Police Department.   The factual record consists

entirely of the testimony of Officer Comegno.

                                A.

    At about 3:20 a.m. on November 24, 2007, Officer Comegno, a

four-year veteran, was patrolling in a squad car in the New


                                3
Yorkshire area -- a historic section of the city also known to

him for its history of violent crimes and drug activity.     The

president of the Omega Community Center had asked the police to

check the property “because of incidents of criminal mischief.”

The Community Center is a three-story building that “sits on the

corner of York and Jones Avenue.”    On the York Street side, the

building has an upraised porch -- two feet off ground level --

with two windows facing off the porch.   In the upper half of one

of the windows was a “no loitering” sign.

    As Officer Comegno drove south on York Street, he noticed

David Gibson “leaning against the porch of the Omega Community

Center.”   Officer Comegno concluded that the ground on which

Gibson was standing, as he leaned against the porch, was the

private property of the Community Center.    The record does not

reveal how many feet or inches Gibson stood off the sidewalk or

street onto Omega’s property by Officer Comegno’s reckoning.

According to the officer, the area was illuminated and the “no

loitering” sign, which he could see from his car, was

approximately two feet from where Gibson was standing.

    As the patrol car approached him, Gibson began walking

south on York Street.   This was apparently just moments after

Officer Comegno first caught sight of him.    As Gibson crossed

over Jones Avenue and headed towards Green Street, Officer

Comegno did not pull his patrol car over and attempt to stop


                                 4
him.    Instead, the officer drove around the block.   After Gibson

walked the full length of the block and reached the intersection

of York Street and Green Street, Officer Comegno rounded the

corner and “intercepted” him.     The officer exited his patrol car

and asked Gibson for identification.     He also asked Gibson where

he was coming from and whether he had permission to be on

Omega’s property.     Gibson gave his name and explained that he

was coming from “his child’s mother’s home located at 200 East

Broad Street,” which is located two blocks north of the Omega

Community Center.   He told the officer that “[h]e was waiting

for a ride, something along those lines.”    To Officer Comegno,

Gibson appeared “very excited” and “somewhat evasive,” and the

officer thought “he was looking around as though he was

attempting to run.”    The officer did not elaborate on how Gibson

was “evasive,” and Gibson did not flee.

       Officer Comegno “felt that there was an intent to trespass

at the Omega Community Center” based on his observations and

interaction with Gibson and therefore “placed him under arrest.”

Only after he spoke with Gibson did he conclude that Gibson had

“the intent to trespass.”     Officer Comegno admitted that he did

not see Gibson involved in any criminal activity while he leaned

against the Community Center’s porch, but offered that one of

the reasons for making the arrest was Gibson’s failure to give

“lawful reasons” for leaning on the porch.


                                   5
    Officer Comegno handcuffed Gibson and searched him before

placing him in the patrol car.    No weapons or contraband were

found on his person at that time.      At the Burlington City police

station, a more thorough search of Gibson uncovered thirteen

clear plastic bags containing crack cocaine.

    Officer Comegno explained that arresting Gibson for the

petty disorderly persons offense of defiant trespass, as opposed

to issuing a summons at the scene, was part of normal procedure.

He conceded that, at times, he issued summonses for offenses,

but only when directed by a supervisor, and he did not contact a

supervisor that night.

                                  B.

    The trial court denied the motion to suppress based on

Officer Comegno’s testimony.     The court recounted that Officer

Comegno, an experienced officer familiar with the area,

“observed a black male . . . David Gibson standing on the

property of the Omega Community Center . . . leaning on the

front porch” at a time when the Community Center was not open to

the public.   The court stressed that a “no trespassing sign was

posted at porch level in the window.”     The court also noted that

Officer Comegno thought that Gibson was “acting furtively” and

“was going to run away.”   The 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


                                  6
arrest.     The court emphasized it did not read our decision in

State v. Dangerfield, 171 N.J. 446 (2002), to limit the scope of

a search incident to an arrest to a weapons search -- a safety

search -- when the charge is for the petty disorderly persons

offense of defiant trespass.

                                  C.

     After the denial of his suppression motion, in accordance

with a plea agreement, Gibson pled guilty to third-degree

possession with intent to distribute CDS.     The court sentenced

Gibson on that charge to a term of eight years in State Prison

with a four-year parole disqualifier and imposed all requisite

fines and penalties.1    The remaining charges in the indictment

were dismissed.



                                  II.

     The Appellate Division affirmed the denial of the motion to

suppress.    State v. Gibson, 425 N.J. Super. 523 (App. Div.

2012).    The panel stated that Officer Comegno’s encounter with

Gibson began as a field inquiry, id. at 527 n.1, and then

evolved into an investigative stop given the officer’s

“reasonable suspicion of criminal activity” based on “the

1
  The judgment of conviction does not explain the basis for
sentencing Gibson in the range of a second-degree crime for a
third-degree offense. Perhaps Gibson was sentenced to an
extended term; we do not know from this record.


                                   7
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,” id. at 527.      According to

the appellate panel, the reasonable suspicion for the

investigative stop ripened into probable cause to arrest for

defiant trespass “when [Gibson] failed to assert that he was on

the Omega property with permission.”     Id. at 527-28.

       The panel maintained that Officer Comegno had probable

cause to arrest under the defiant trespass statute, N.J.S.A.

2C:18-3(b), “even though the property owner posted a ‘no

loitering’ sign instead of a ‘no trespassing’ sign.”      Id. at

528.    “[S]o long as the owner’s intent to keep others off the

property is reasonably conveyed,” the panel reasoned, the

statute’s notice requirement is met.     Id. at 529.   In the

panel’s view, “‘no loitering’ is a message sufficient to convey

the same meaning as ‘no trespassing.’”     Ibid.   The panel

concluded that the “no loitering” sign gave the officer a

reasonable basis to conclude that Gibson “was engaged in

criminal activity by leaning against the porch of the Omega

property.”   Id. at 530.2




2
  The panel did not find sufficient merit to discuss Gibson’s
argument that he should have been given the opportunity to post
bail before he was searched at the stationhouse. Id. at 526.


                                  8
    We granted Gibson’s petition for certification.      State v.

Gibson, 212 N.J. 460 (2012).



                               III.

                                A.

    Gibson argues that his arrest was unconstitutional because

it was not supported by probable cause and therefore the search

incident to the arrest was invalid as well.   He also contends

that “a ‘no loitering sign’ cannot adequately warn against

trespass because ‘loitering’ and ‘trespassing’ denote different

types of conduct.”   Gibson points out that “‘loitering’ is

commonly understood to mean presence in a place for a prolonged

period of time, with no aim or purpose,” whereas a defiant

trespass means an unprivileged entry onto another’s property

where there is adequate notice against trespass.   The

distinction between the two, Gibson claims, is critical.    He

submits that “the ‘no loitering’ sign adequately warned [him]

that he could not idly remain on Omega property for a prolonged

time,” but that the sign did not adequately warn him that he

would be subject to prosecution for “briefly lean[ing] against

the porch as he waited for a ride.”   He cautions that clothing

the police with the authority to arrest under circumstances such

as here, “creates [the] grave potential for official

harassment.”


                                9
    Gibson also claims that the police violated his Fourth

Amendment rights by conducting a warrantless search at the

stationhouse.   He posits that “the stationhouse search was not a

search incident to an arrest” because the arrest and search

occurred at the scene and further that “the police did not have

authority to conduct an inventory search before releasing [him]

on his own recognizance or giving him an opportunity to post

bail.”

                                B.

    The State submits that, given the totality of the

circumstances, Officer Comegno had a well-grounded suspicion,

and therefore probable cause, to arrest Gibson for the petty

disorderly persons offense of defiant trespass.   The

circumstances warranting an objectively reasonable police

officer finding probable cause for defiant trespass, according

to the State, include Gibson’s leaning on the porch of the Omega

property, the officer’s knowledge that the property was in a

high-crime area, prior complaints of the property owner about

trespassers, the officer’s observation that Gibson appeared to

be “very excited” and “somewhat evasive” when questioned, and

Gibson’s failure to provide a “lawful reason” for “leaning

against the raised porch.”   The State insists that the “no

loitering” sign was sufficient to give Gibson notice against

trespassing on Omega’s property, for the reasons expressed by


                                10
the Appellate Division.   Alternatively, it submits that even if

the notice element of defiant trespass was not satisfied,

“[Gibson’s] relief should not be suppression of the evidence

under the exclusionary rule,” but dismissal of the defiant

trespassing charge “on legal sufficiency grounds.”

    The State also argues that the police conducted a

permissible search of Gibson at the stationhouse.    It proffers

that “because Officer Comegno could only perform a limited

search incident to arrest at the scene, it was entirely

appropriate . . . to continue the search at the police station

so that a full search incident to arrest could be conducted

there.”   Citing Dangerfield, supra, 171 N.J. 446, the State

submits that there is no legitimate authority for Gibson’s

position that he is “‘presumptively entitled to be released upon

the issuance of a summons, rather than being arrested.’”



                                IV.

    The decisive issue before us is whether Officer Comegno had

probable cause to arrest Gibson for defiant trespass.     In the

absence of probable cause to arrest, the search at the scene and

the search at the stationhouse cannot pass constitutional

muster.   To determine whether the officer had a constitutional

basis to arrest Gibson, we first must understand the statutory

requirements of defiant trespass.


                                11
     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 by:

               (1) Actual communication to the actor;
               or

               (2) Posting in a manner prescribed by
               law or reasonably likely to come to the
               attention of intruders; or

               (3)    Fencing    or    other    enclosure
               manifestly     designed     to     exclude
               intruders.

          [N.J.S.A. 2C:18-3(b).]3

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).    In contrast, under the

“remains” portion of the statute, a person who is privileged or

licensed to enter onto property may be prosecuted for defiant

trespass if he refuses to leave after he is told to do so.

There, the duration of the incursion -- how long he “remains”

unwelcome on the property -- is a factor.    See, e.g., State v.


3
  A person convicted of a petty disorderly persons offense may be
sentenced to a term of imprisonment not to exceed thirty days.
N.J.S.A. 2C:43-8.


                                12
Slobin, 294 N.J. Super. 154, 156 (App. Div. 1996) (affirming

conviction where defendants “sat at [a] table for a period of

forty minutes after being asked to leave and refus[ed] to do

so”); State v. Dargon, 165 N.J. Super. 500, 503-04 (App. Div.

1978) (holding, under predecessor statute, that although

defendants were permitted entry, “their deliberate and

persistent refusal to leave pursuant to the several requests

rendered them wilful trespassers”).

    The heart of N.J.S.A. 2C:18-3(b) is the notice provision.

See II The New Jersey Penal Code, Final Report of the New Jersey

Criminal Law Revision Commission § 2C:18-3 cmt. 2, at 212 (1971)

(“The theory of this Section is that where a landowner wishes to

assert his right to exclude from open land and to have the

backing of the criminal law, it is not too much to ask him to

give notice.”).

    The questions here are 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 one foot on the curtilage of

Omega’s property or to lean against its porch.     N.J.S.A. 2C:18-

3(b).   In other words, did Gibson know -- or for that matter

would any reasonable person have known -- that by leaning

against the upraised porch, even momentarily, he would commit

the offense of defiant trespass?     That all depends on whether


                                13
the “no loitering” sign in the window overlooking the Community

Center’s porch gave sufficient notice to make a reasonable

person aware that even a slight and brief incursion on the

property was a prosecutable offense.

    The Appellate Division expressed the opinion that “‘no

loitering’ is a message sufficient to convey the same meaning as

‘no trespassing.’”    Gibson, supra, 425 N.J. Super. at 529.     At

least in the circumstances of this case, we cannot agree with

that proposition.

    As commonly understood, loitering suggests remaining or

lingering in a location for some indefinite period for no

apparent purpose.    See Webster’s Third International Dictionary

1331 (1981) (defining “loiter” as “2 a : to remain in or near a

place in an idle or apparently idle manner: hang around

aimlessly or as if aimlessly <vagrants found [loitering] outside

the building>”); The American Heritage Dictionary 740-41 (2d

College ed. 1991) (defining “loiter” as “1.   To stand idly

about; linger aimlessly.   2.   To proceed slowly or with many

stops.   3.   To delay or dawdle”); Black’s Law Dictionary 1027

(9th ed. 2009) (defining “loitering” as “[t]he criminal offense

of remaining in a certain place (such as a public street) for no

apparent reason”).

    Under the New Jersey Code of Criminal Justice, a person

commits the disorderly persons offense of “[l]oitering for [the]


                                 14
purpose of illegally using, possessing or selling controlled

substance,” N.J.S.A. 2C:33-2.1, if “he wanders, remains or

prowls in a public place with the purpose of unlawfully

obtaining or distributing” CDS, N.J.S.A. 2C:33-2.1(b)(1).     In

Camarco v. City of Orange, the Appellate Division addressed a

challenge to the constitutionality of a municipal loitering

statute that defined loitering as “remaining idle in essentially

one location,” “spending time idly loafing or walking,” and

“‘hanging around.’”    116 N.J. Super. 531, 533 (App. Div. 1971),

aff’d, 61 N.J. 463 (1972).   See also Chicago v. Morales, 527

U.S. 41, 51 n.14, 119 S. Ct. 1849, 1856 n.14, 144 L. Ed. 2d 67,

77 n.14 (1999) (referencing Chicago ordinance defining “‘loiter’

to mean ‘to remain in any one place with no apparent purpose’”).

    All of these definitions and applications of loitering

convey something more than a temporary or brief respite at a

particular location.   On the other hand, trespass --

particularly as used in the defiant trespass statute -- has a

distinctly different meaning.   N.J.S.A. 2C:18-3(b) prohibits the

mere entering -- not just idly remaining -- 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.

     It is fair to say, given the commonly accepted definitions

of loitering, that the “no loitering” sign in the porch window


                                 15
of the Omega Community Center communicated nothing more than

that a person should not be idly remaining or loafing on its

property.4   Through the commonly understood meaning of loitering

and the requirements of the defiant trespass statute, we must

judge whether Officer Comegno had probable cause to arrest

Gibson.



                                 V.

     The central issue is not whether Officer Comegno was

authorized to conduct a field inquiry or an investigative stop

of Gibson, but rather whether he had probable cause to make an

arrest.

                                 A.

     A field inquiry “occurs when a police officer approaches an

individual and asks ‘if the person is willing to answer some

questions.’”   State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting

State v. Nishina, 175 N.J. 502, 510 (2003)) (alteration

omitted).    So long as the questioning “is not harassing,


4
  Although we are not dealing with a loitering statute in this
case, it bears mentioning that such statutes have been subject
to constitutional challenge on vagueness grounds. Some
loitering statutes have been notorious for “fail[ing] to provide
the kind of notice that will enable ordinary people to
understand what conduct it prohibits” and for “authoriz[ing] and
even encourage[ing] arbitrary and discriminatory enforcement.”
See Morales, supra, 527 U.S. at 56, 119 S. Ct. at 1859, 144 L.
Ed. 2d at 80.


                                 16
overbearing, or accusatory in nature,” Nishina, supra, 175 N.J.

at 510, and the person is free to refuse to answer and “‘go on

his way,’” Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319,

1324, 75 L. Ed. 2d 229, 236 (1983) (citations omitted), the

person’s Fourth Amendment rights are not implicated, ibid.

    A police officer may conduct an investigative stop when,

“based on specific and articulable facts,” he has a reasonable

suspicion that a person is engaged in criminal activity.

Pineiro, supra, 181 N.J. at 20 (citations omitted).    An

investigative stop occurs when “a reasonable person would have

believed that he was not free to leave” and constitutes a

“seizure” under the Fourth Amendment.   United States v.

Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed.

2d 497, 509 (1980).   An officer’s subjective, good-faith hunch

does not justify an investigatory stop -- even if that hunch

proves correct.   See State v. Arthur, 149 N.J. 1, 8 (1997).    The

duration of an investigative stop must be limited in time and

scope to the purpose that justified the stop in the first place.

Royer, supra, 460 U.S. at 500, 103 S. Ct. at 1325, 75 L. Ed. 2d

at 238.

    There is no question that Officer Comegno had the right to

ask questions of Gibson -- that is, to conduct a field inquiry.

We need not resolve whether Gibson was subject to an

investigative stop because the officer placed him under arrest


                                17
immediately after questioning him.   The legitimacy of the

stationhouse search depends simply on whether Officer Comegno

had probable cause to make the arrest.

                                B.

    Both the Fourth Amendment of the United States Constitution

and Article I, Paragraph 7 of the New Jersey Constitution

provide for “[t]he right of the people to be secure in their

persons . . . against unreasonable searches and seizures.”     In

the absence of probable cause to believe that a person has

committed or is committing an offense, an arrest is an

unreasonable seizure in violation of our Federal and State

Constitutions.   See Dangerfield, supra, 171 N.J. at 455-56.    The

lawfulness of the arrest in this case depends on whether Officer

Comegno had probable cause to believe that Gibson had committed

a defiant trespass on the property of the Omega Community

Center.

    Probable cause has been defined as “a well grounded

suspicion that a crime has been or is being committed,” State v.

Sullivan, 169 N.J. 204, 211 (2001) (citation and internal

quotation marks omitted), and as “a reasonable ground for belief

of guilt,” Brinegar v. United States, 338 U.S. 160, 175, 69 S.

Ct. 1302, 1310, 93 L. Ed. 1879, 1890 (1949) (citations and

internal quotation marks omitted).   It “is more than a mere

suspicion of guilt, [but] less than the evidence necessary to


                                18
convict a defendant of a crime in a court of law.”     State v.

Basil, 202 N.J. 570, 585 (2010) (citing Brinegar, supra, 338

U.S. at 175, 69 S. Ct. at 1310, 93 L. Ed. at 1890).    It “is a

fluid concept -- turning on the assessment of probabilities in

particular factual contexts” and addresses “‘the factual and

practical considerations of everyday life on which reasonable

and prudent men, not legal technicians, act.’”   Illinois v.

Gates, 462 U.S. 213, 231-32, 103 S. Ct. 2317, 2328-29, 76 L. Ed.

2d 527, 544 (1983) (citation omitted).   Last, “[i]n determining

whether there was probable cause to make an arrest, a court must

look to the totality of the circumstances, and view those

circumstances from the standpoint of an objectively reasonable

police officer.”   Basil, supra, 202 N.J. at 585 (citation and

internal quotations marks omitted).

                                C.

    The default position in our constitutional jurisprudence is

that warrantless searches are presumptively invalid.     State v.

Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S.

Ct. 108, 160 L. Ed. 2d 128 (2004), overruled in part by State v.

Edmunds, 211 N.J. 117 (2012); see also Kentucky v. King, 563

U.S. __, __, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865, 874

(2011).   For that reason, the State bears the burden of proving

by a preponderance of the evidence that a warrantless search

falls within one of the “‘well-delineated exceptions’ to the


                                19
warrant requirement” of the Fourth Amendment and Article I,

Paragraph 7 of our State Constitution.     Frankel, supra, 179 N.J.

at 598 (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct.

2408, 2412, 57 L. Ed. 2d 290, 298-99 (1978)).     In this case, the

State claims that the warrantless search of Gibson at the

stationhouse was incident to his arrest.    See State v. Moore,

181 N.J. 40, 45 (2004) (citing Chimel v. California, 395 U.S.

752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969))

(holding that search incident to arrest is exception to warrant

requirement).   The validity of the search, however, depends on

the constitutionality of the arrest.     See ibid.   Therefore, the

State bears the burden of showing that Officer Comegno had

probable cause to make the arrest.

    At the suppression hearing, the trial court heard testimony

from Officer Comegno and determined that he had probable cause

to arrest Gibson for defiant trespass.    Inasmuch as that finding

is based on the court’s credibility assessment of Officer

Comegno, the only witness who testified, it is entitled to

deference -- but not blind deference.    This Court is not obliged

to defer to clearly mistaken findings -- findings that are not

supported by sufficient credible evidence in the record.      See

State v. Elders, 192 N.J. 224, 245 (2007) (noting that trial

court’s “findings were entitled to deference unless they were

‘clearly mistaken’ or ‘so wide of the mark’ that the interests


                                20
of justice required appellate intervention.”          (citing N.J. Div.

of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)));

State v. Johnson, 42 N.J. 146, 162 (1964) (stating that aim of

appellate review is “to determine whether the findings made

could reasonably have been reached on sufficient credible

evidence present in the record”).       Nor is the Court obliged to

defer to the ultimate finding of probable cause when the facts

and inferences do not support that conclusion.

    For example, in State ex rel. J.M., 339 N.J. Super. 244,

256-57 (App. Div. 2001), the Appellate Division overturned the

trial court’s denial of a motion to suppress because the trial

court clearly erred in finding that a police officer had

probable cause to arrest the defendant for defiant trespass.          In

J.M., one evening, a resident told a police officer that “she

was having a problem with people ‘hanging out’ on her porch and

dealing drugs.”   Id. at 246.   The officer testified that “the

police had received complaints about trespassers and narcotics

activity in that area” and that he had personally “made arrests

at that location.”   Id. at 247.    That same evening, the officer

observed three people on the resident’s porch, none of whom

appeared to be engaged in criminal activity.          Ibid.   The officer

spoke with the resident, who advised him that two of the people

on the porch were her relatives and that she did not know the

third person -- the juvenile defendant.       Ibid.     When the officer


                                   21
asked the defendant why he was on the porch, he responded that

he was “hanging out.”   Ibid.    Although the resident did not ask

that the defendant be removed, the officer pointed out to the

defendant the “‘no trespassing’ sign in the window of the house”

and arrested him for defiant trespass.     Ibid.   A search of the

defendant at the police station uncovered drugs on his person.

Ibid.

    The Appellate Division in J.M. found the evidence

insufficient to support the trial court’s finding of probable

cause to arrest.   Id. at 248.    It determined that “it belies

common sense that [the defendant] just wandered off the street

to join two other young people who were not trespassers,” that

it was “highly unlikely” that one of the resident’s relatives

had not invited him to be there, and that the police failed “to

make a good faith evaluation of the circumstances

presented . . . before effectuating an arrest.”      Id. at 248-49.

    Also significant to our analysis is Dangerfield, supra, 171

N.J. 446.   There, we determined that the State failed to show

that, under the totality of the circumstances, a detective had a

well-grounded suspicion -- or, in other words, probable cause --

to arrest the defendant for defiant trespass.      Id. at 457.

Thus, we affirmed a suppression motion because the search was

incident to an unlawful arrest.    Id. at 458.     In Dangerfield, a

police detective observed the defendant sitting on a bicycle in


                                  22
a public housing project, where “no trespassing” signs were

posted.     Id. at 457.     The detective had encountered the

defendant on two previous occasions, on each of which the

defendant gave a “legitimate and lawful” explanation for his

presence.    Ibid.   On this occasion, the defendant saw the

detective and another detective and “rode away on his bicycle.”

Ibid.   The detectives stopped the defendant and questioned him

about his flight.        Ibid.    He explained that he was “doing

nothing.”    Id. at 451.         The defendant was arrested for defiant

trespassing.     Ibid.     This Court emphasized that the defendant

was never “asked whether he knew or was visiting anyone at the

complex,” although such questioning was part of established

protocol for “approaching suspected trespassers.”           Id. at 457.

This Court also pointedly stated that “flight alone does not

create reasonable suspicion for a stop, let alone probable

cause.”     Ibid. (citing State v. Tucker, 136 N.J. 158, 168-69

(1994)).

    Both J.M. and Dangerfield demonstrate that courts carefully

assess whether the probable-cause justification for an arrest

for defiant trespass is supported by the fair inferences that

can be drawn from the record.          We now must determine whether,

viewed through the eyes of an objectively reasonable police

officer, there was sufficient credible evidence to support the

arrest of Gibson for defiant trespass.


                                        23
                                VI.

    Even under our deferential standard of review, we cannot

find an objectively reasonable basis for Gibson’s arrest.    At

3:20 a.m., while in his patrol car, Officer Comegno observed a

black male -- whom he later learned was David Gibson -- leaning

against the upraised porch of the Omega Community Center.    In a

window facing the porch was posted a “no loitering” sign.

Whether the sign was directed to those who ventured onto the

porch or those lingering in the outermost part of the property

or curtilage -- or even the sidewalk -- is not evident from the

record.   Based on the record, and given the limited time for the

officer’s observations, it appears that Gibson was seen leaning

on the porch for no more than a few moments, and may not have

been standing more than a foot on Omega’s property, before he

began walking south on York Street.    The State presented no

evidence regarding the degree of encroachment on Omega’s

property, whether inches or feet, or how long the encroachment

lasted, whether seconds or longer.     The State bore the burden of

proving by a preponderance of the evidence that Officer Comegno

had probable cause to arrest Gibson.

    The officer did not see Gibson engaged in any illegal

activity.   As soon as the officer saw Gibson, Gibson moved on.

Gibson’s observed conduct hardly fits the commonly understood


                                24
meaning of loitering -- remaining in a place in an idle manner,

hanging around, lingering aimlessly, or loafing.

    Although Officer Comegno was driving south in the same

direction in which Gibson was walking, he did not stop Gibson

immediately.   Instead, he drove around the block and intercepted

Gibson after Gibson had walked the length of York between Jones

Avenue and Green Street.   Gibson did not take flight, or dart

between buildings, after he spotted the patrol car.

    No one can quarrel with the officer’s decision to approach

Gibson and ask him some questions.    Gibson identified himself

and stated that he had been visiting his child’s mother, who

lived two blocks north of the Omega Community Center, and that

he had been “waiting for a ride.”    Although Officer Comegno

claimed that Gibson was “evasive” and looked as though he might

“run,” he gave no factual support for those subjective feelings.

The officer cited, as one basis for making the arrest, Gibson’s

failure to give “lawful reasons” for leaning on the porch, but

Gibson explained why he was on the street at that hour.

    We accept the trial court’s credibility findings concerning

Officer Comegno’s testimony.   We accept that the Omega Community

Center is located in a high-crime area and that the Community

Center’s president had asked the police to make checks because

there had been incidents of criminal mischief.     We cannot




                                25
accept, however, the inferences drawn by the officer because

they are not objectively reasonable.

    The constitutional right to be free from arbitrary arrest

is not suspended in high-crime neighborhoods where ordinary

citizens live and walk at all hours of the day and night.

Momentarily leaning against a building, or an upraised porch, on

a city block, would not be considered loitering to an

objectively reasonable citizen.    That would be so even if the

passerby was standing a foot or two on the curtilage of the

building’s property.

    If Gibson was not loitering, as the term is conventionally

understood, then how could Officer Comegno have formed a well-

grounded suspicion that Gibson was defiantly trespassing on

Omega’s property?   As we explained earlier, trespass and

loitering are terms with distinctly different meanings.     The

notice on the Omega property did not suggest that leaning on the

porch for a very brief period would subject the offender to a

defiant trespass prosecution.   The “notice against trespass” had

to be communicated in a manner that would have made a reasonable

person aware that setting even a foot on the curtilage or

leaning against the porch was unlawful.    N.J.S.A. 2C:18-3(b).

    It bears mentioning that the trial court, in reciting its

factual findings, mistakenly referred to a “no trespassing” sign

in the porch window.   We do not know whether this was a slip of


                                  26
the tongue or a mistaken belief that may have affected the

resulting legal conclusion.    Nevertheless, this error ultimately

is of little moment in our analysis.

    We do not suggest that a “notice against trespass” must be

phrased in some talismanic form.       There are a multitude of ways

in which the message can be conveyed.       Had Gibson remained idly

leaning on the porch for an extended period of time, perhaps

Gibson’s conduct would have had the appearance of loitering, and

Officer Comegno might then have had a reasonable suspicion of

defiant trespassing.    But that is not the case here.

    The State argues that Gibson’s walking away from the Omega

Community Center gave rise to reasonable suspicion on the part

of Officer Comegno.    But had he remained where he had stood

Gibson surely would have been loitering.       This type of Catch-22

scenario cannot support a probable cause determination.      Even

flight, standing alone, will not support a well-grounded

suspicion for a defiant trespass arrest.       See Dangerfield,

supra, 171 N.J. at 457.

    The defiant trespass statute cannot be used as an

instrument for random stops and arrests.       That was made clear in

both Dangerfield and J.M.     The State had the burden of

justifying the warrantless arrest in this case.       We must view

the propriety of Officer Comegno’s actions through the lens of

the objectively reasonable police officer.       We conclude that


                                  27
even under the deferential standard that guides appellate

review, the State has failed to show that Officer Comegno had

probable cause to arrest Gibson for defiant trespass.       In short,

there is insufficient evidence in the record to support a

finding of probable cause.    The search at headquarters cannot

stand because it was incident to an unconstitutional seizure.

See State v. Badessa, 185 N.J. 303, 311 (2005) (citing Wong Sun

v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L.

Ed. 2d 441, 454 (1963)).     For that reason, we are compelled to

suppress the fruits of that search.

    We need not reach Gibson’s second argument:        that he should

have been given the opportunity to post bail before the

stationhouse search.   However, we do not hesitate to offer that

once an officer lawfully arrests a suspect, he has the right and

duty to search him for weapons and contraband before placing him

in a patrol car.   See Chimel, supra, 395 U.S. at 762-63, 89 S.

Ct. at 2040, 23 L. Ed. 2d at 694.       It also follows that the

police have the authority to ensure, at headquarters, that a

person under arrest is not armed with a weapon.



                                 VII.

    For the reasons given, we reverse the judgment of the

Appellate Division and suppress the evidence seized during the




                                  28
stationhouse search.   We remand for proceedings consistent with

this opinion.

     CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and PATTERSON, and
JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in
JUSTICE ALBIN’s opinion.




                                29
                  SUPREME COURT OF NEW JERSEY

NO.     A-27                     SEPTEMBER TERM 2012

ON CERTIFICATION TO             Appellate Division, Superior Court



STATE OF NEW JERSEY,

      Plaintiff-Respondent,

             v.

DAVID M. GIBSON,

      Defendant-Appellant.




DECIDED               January 7, 2014
               Chief Justice Rabner            PRESIDING
OPINION BY                Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


                               REVERSE AND
CHECKLIST
                                 REMAND
CHIEF JUSTICE RABNER                X
JUSTICE LaVECCHIA                   X
JUSTICE ALBIN                       X
JUSTICE PATTERSON                   X
JUDGE RODRÍGUEZ (t/a)               X
JUDGE CUFF (t/a)                    X
TOTALS                              6



                                          30
