On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-03-00614.
Before Judges Stern and Collester.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, Harold Love, appeals from an order denying his motion to suppress evidence pursuant to R. 3:5-7(d) following his plea to possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7.
The sole witness at the suppression hearing was Patrolman McGee of the Atlantic City Police Department. An eighteen year police veteran, McGee testified that on January 27, 1998, he was on uniform patrol in the area of the boardwalk and the Tropicana Hotel Casino when he received a radio call from Patrolman Steven Ricketts that the defendant was seen riding on a bicycle, parking it against a boardwalk railing and entering the Tropicana. Ricketts also told McGee that the defendant resembled a person who had committed numerous purse snatchings in the area.
McGee knew that ten purse snatchings had been committed in the casino area of the boardwalk during September and October 1997, the last one in the Tropicana parking garage. He also knew the description of the perpetrator given by the various witnesses was of a thin black male wearing dark clothing ranging in height from five foot eight inches to six feet and in age from twenty to forty.
On the date in question defendant was a thirty-six year old black male weighing about 140 pounds with a two inch beard. He was known to McGee and other Atlantic City police officers because of convictions for a homicide and a prior robbery which McGee described as "a pretty famous case."*fn1
McGee set up surveillance near where defendant had parked his bicycle. Tropicana Hotel security was alerted to keep an eye on the defendant in the casino but not to approach him unless "something happened." After about fifteen minutes, four Tropicana security officers left the casino and walked to defendant's bicycle. A minute or two later the defendant exited the Tropicana, walked to his bicycle, where he was surrounded by the security officers.
McGee radioed Ricketts to move in. McGee testified that it was his intention to find out what had happened and, in any event, to detain defendant until he answered questions as to what he was doing and where he lived.
When he arrived at the group, McGee was told by the security officers that nothing had happened in the Tropicana. Ricketts then told the defendant that he fit the description of someone wanted for a series of purse snatchings. McGee said defendant looked nervous. Ricketts ordered him to place his hands on top of his head so that he could be frisked for weapons. The defendant started to comply but kept bringing his hands down despite Ricketts telling him several times to keep his hands on top of his head.
McGee described what happened next:
We noticed he was wearing a belly bag around his waist, and Officer Ricketts wanted to do a protective frisking of his waist. He moved the belly bag. The defendant brought his hands down. Officer Ricketts grabbed the handle of the automatic. He told him, he says, I got a gun. The defendant brings his hands down, he starts struggling. Ricketts let's go of the gun on to the boardwalk, I picked up the gun. And we have a struggle with the guy to get him into custody.
The weapon seized was a Browning .380 semi-automatic handgun loaded with thirteen rounds of ammunition. Further search of defendant yielded a small amount of heroin. He was taken into custody and subsequently was indicted for third degree possession of heroin, N.J.S.A. 2C:35-10a(1); third degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b and 58-4; second degree possession of a handgun by a person previously convicted of a crime, N.J.S.A. 2C:39-7; fourth ...