When Do Police Have the Right to Approach you with Guns Drawn

State v. Ford & Williams Appellate Division Nj August 24, 2018–Pulled over or approached by the police with guns drawn

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In this recent Appellate Division decision the court overturned a trial judges ruling regarding evidence obtained from a defendant the police and countered and immediately drew their weapons upon him and asked him to stop and cooperate. The facts of this case are pretty standard. The police were called regarding shots fired in a location and a “black man” was identified. As the police were driving towards the scene they observed a black man, pulled over, drew their weapons, jumped out of the car and approached him.  The key to the court’s analysis of the facts was that the police actually jumped out of their cruiser with their weapons out of their holster and pointed directly at this defendant.   If the police’s approach to a defendant with guns drawn is an arrest?? The court ruled here, and the key facts established by the court’s careful questioning of the officer are that he was “already out of the car” with his “gun drawn” when defendant “dropped the bags.” Accordingly, the issue in this case was never the distinction between a field inquiry and an investigative detention. See State v. Rosario, 229 N.J. 263, 272-73 (2017). Police do not conduct a field inquiry with a citizen at the point of a gun. See State v. Rodriguez, 172 N.J. 117, 126 (2002). Defendant was seized within the meaning of the Fourth Amendment the moment the officer pointed his gun at defendant and told him to stop and put his hands up.  (Because defendant only dropped his bags after the officer jumped from his patrol car and pointed a gun at him, we reject the trial court’s finding that defendant’s dropping the bags could constitute reasonable suspicion justifying the stop. See Rosario, 229 N.J. at 277 (explaining that suspicious behavior occurring after instigation of an investigative detention “can[not] be used, post hoc, to establish the reasonable and articulable suspicion required at the outset” )See Kaupp v. Texas, 538 U.S. 626, 629-30 (2003); United States v. Mendenhall, 446 U.S. 544, 554 (1980); State v. Crawley, 187 N.J. 440, 450 (2006).

Having established that this was, at the very least, an investigative detention of defendant from the first moment of the encounter, see Terry v. Ohio, 392 U.S. 1, 9, 16 (1968), the question is whether the police had a reasonable suspicion, grounded in specific and articulable facts, that defendant was involved in the “shots fired” incident. See Rodriguez, 172 N.J. at 126.  As the Supreme Court reminded in State v. Shaw, 213 N.J. 398, 409 (2012), “[p]eople, generally, are free to go on their way without interference from the government. That is, after all, the essence of the Fourth Amendment — the police may not randomly stop and detain persons without particularized suspicion.” We think it plain defendant did not forfeit his constitutional right to walk near a city park unmolested by police simply because he was of the same race as a suspect sought in connection with a report of shots fired nearby