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A state appeals court knew better, however: The panel this week ordered the defendant back into court to face the charge, overruling the local judge.
The Gang Task Force of the Hudson County Prosecutor’s Office was investigating a tip from an informant that “dip,” the street name for cigarettes dipped in PCP, were being sold on Stevens Avenue when a citizen called Jersey City police in June 2008 and said a group of men were selling the smokes at that address, court records show.
The caller specifically identified the Stevens Avenue sellers as Alonzo Harris — described as black and wearing a red hat — and “Lance,” a black man with dreadlocks.
The caller even told police Harris had stashed PCP in a freezer and a handgun in his apartment at 62 Stevens Avenue.
The Gang Task Force confirmed the call with its informant, then headed to the scene.
Four people were there — including Harris, Lance, an unidentified juvenile and Kariem Carter, known as “a member of the Fruit Town Brim set of the Bloods street gang.”
No sooner had the detectives gotten out of their car than Harris pulled a small bottle from his pocket and stuck it in his mouth, they said.
A detective forced him to spit out the bottle, which contained PCP, reports show. Harris, who was wearing a parole monitoring bracelet, was arrested.
Meanwhile, another detective approached Carter and asked whether he was carrying any drugs. He pulled a bottle of PCP from his pocket and was immediately arrested, the detective said.
Police later found a handgun in Harris’ apartment. He eventually worked out a plea deal and was sent to prison. Lance Powell, the man with the dreadlocks, was held on a child-support warrant.
The juvenile had 13 bags of marijuana and a pot blunt he’d been rolling when police approached, authorities said.
Carter was indicted on a trio of possession charges.
His lawyer, in turn, claimed that Carter’s constitutional rights were violated because the detective lacked evidence that his client was selling drugs — either hand-to-hand or by another means — when Carter was detained and asked the accusatory question.
The judge agreed, suppressing the evidence and smashing the prosecutor’s office case against Carter. The judge went even further, giving the same protection to the juvenile.
To detain someone, under state law, police must have “reasonable and particular suspicion” that they’ve committed a crime, the appeals judges noted.
In this case, the appeals court ruled, the detectives saw Carter with suspected drug dealers. They also knew he was a gang member.
But they did not arrest him, the higher court said: A detective simply asked whether he had any drugs.
“There was no evidence of an undue amount of fear or intimidation; defendant was not removed from the initial location of the investigatory detention; and defendant was not handcuffed, placed in a police car, or otherwise restrained physically before the question was put to him,” the appeals court wrote.
“Neither the United States nor the New Jersey Supreme Court has ever held that asking a person whether he has any contraband in his possession amounts to a de facto arrest,” they added.
“In sum, the police did not violate defendant’s Fourth Amendment right against unreasonable seizure of his person by asking him during a valid investigatory detention whether he had contraband in his possession. Once defendant answered that he had PCP in his pocket, the police had probable cause to arrest and search him.”
As a defense lawyer would say: See you in court, Mr. Carter.
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