ANOTHER ROUND IN PORCH CASE

The rejection of a drug arrest based on a tip was upheld. A state Supreme
Court appeal is expected.

TRENTON - A controversial 1998 drug arrest in a high-crime neighborhood of
Trenton is on its way to the state Supreme Court to test when police can
bother a man sitting on his porch.

Trenton police arrested Drew Johnson after spotting him stuffing a bag into
a hole on a porch where he was sitting. They found crack cocaine in the bag.

Superior Court Judge Andrew Smithson threw out the evidence against Johnson
because he said police had no basis to bother and search him since he was
simply sitting on his porch. Police were acting on an anonymous tip that
Johnson was dealing drugs, but the judge said officers had to see suspicious
activity before arresting or searching someone.

A state appeals court yesterday upheld Smithson's ruling, but the court was
divided, 2-1. This means Mercer County Prosecutor Daniel Giaquinto has an
automatic right to appeal the ruling to the state Supreme Court, which
spokeswoman Emily Hornaday said he would do.

The Johnson arrest touched on a tricky area of law - police action based on
anonymous tips, which courts have held may be of limited reliability. Such
tips must be highly specific about an offense, or police must limit their
use of the tip to begin a surveillance.

Trenton police on patrol in a high-crime area got a tip from an unidentified
resident on the street that Johnson was selling drugs. They spotted Johnson
on his porch, and noticed that as Johnson saw them, he moved a small bag to
his side in an apparent effort to conceal it. The officers approached, and
one of them retrieved the bag containing the drugs.

In a joint opinion, Judges Howard Keskin and Dorothea Wefing said, "There
was not enough in what the police saw, without more, to establish the
requisite basis for determining criminal activity was afoot that would
validate their conduct in securing defendant or engaging in the search they
undertook.

"Where the police only witnessed defendant's presence on the porch and saw
him place an object beside himself, there is no adequate basis for the
action they took," the judges said.

In a dissent, Judge Isaiah Steinberg said the officer who found the drugs
"believed defendant was attempting to conceal narcotics, which was a
reasonable assumption based on the totality of the circumstances then known
to him."