On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 05-12-2609-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Yannotti.
An Atlantic County Grand Jury returned Indictment No. 04-06-1286-B-GVU*fn1 against defendant, charging him with three counts of third-degree unlawful possession of a weapon, a 9mm handgun, a .45 caliber handgun, and a .357 caliber handgun, without having first obtained a permit, N.J.S.A. 2C:39-5b; and three counts of second-degree possession of a weapon after having been convicted of the crime of distribution of a controlled dangerous substance, N.J.S.A. 2C:39-7.
Following the denial of defendant's motion to suppress the weapons, a sweatshirt, and his statements to police, pursuant to a plea agreement he pleaded guilty to a single count of third-degree possession of a weapon. The court imposed a flat five-year sentence, to run concurrent to a sentence the court imposed on a second indictment, charging defendant with various drug offenses. The court dismissed the remaining charges.
On appeal, defendant challenges the court's denial of his suppression motions, specifically raising the following points:
POINT I: [THE MOTION JUDGE'S] FINDINGS REGARDING THE DEFENDANT'S CREDIBILITY WERE CLEARLY ERRONEOUS.
POINT II: THE WARRANTLESS ENTRY INTO THE PREMISES AND SUBSEQUENT SEIZURE OF A SWEATSHIRT WERE ILLEGAL.
POINT III: THE CONSENT TO SEARCH WAS OBTAINED THROUGH COERCION, BY REASON OF WHICH EVIDENCE OF THE GUN RECOVERED SHOULD HAVE BEEN SUPPRESSED.
We reverse that potion of the court's order denying defendant's motion to suppress his pre-Miranda*fn2 statements, but affirm his judgment of conviction.
We take the facts from the testimony at the suppression hearings.
On May 9, 2004, at 1:50 p.m., Atlantic City Police Officer Eugene Maier responded to 902 Drexel Avenue in Atlantic City to a report of shots fired. Upon arriving, Maier was approached by Virginia Coley, who told him that she had just seen three men get out of a white four-door car, remove several guns from the trunk, and shoot the guns. She recognized two of the men; one was defendant, and the other was his brother, Shakeem Williams. Coley described defendant as a heavy-set black male with corn rows in his hair and wearing a gray sweatshirt. Maier radioed this information to police dispatch.
Officer Michael Gavin received the information and learned that defendant had been arrested a few days earlier on a warrant. Gavin obtained defendant's address from the Sheriff's Department, and at approximately 2:26 p.m., he and Officer Robert Thompson and another officer arrived at defendant's address, 870F North Virginia Avenue, Atlantic City, the end unit of a two-story apartment building. The unit had windows on three sides. When they arrived, Gavin saw a white four-door car, matching the description of the car described by Coley, parked behind the rear door of defendant's apartment. The hood of the car was warm. The car was registered to defendant at that address. Gavin also observed a man on the second floor looking out the window and then quickly closing the blinds. He also saw a bullet hole in the back door of the apartment.
Maier arrived at approximately 2:41 p.m. Looking in the apartment's window, he did not see any movement, but heard music playing. Maier, Gavin, and Thompson approached the front door; Gavin knocked on the door and made an "announcement." Someone inside the apartment responded, "I'll be right there." Michael Ingram opened the door with defendant standing behind him. Gavin ordered both men out, where they were patted-down and handcuffed. Gavin explained to defendant that the police were there to investigate a shooting in which they believed he and his brother were involved. Another individual, Rodney Collins, appeared at the door and the police also ordered him out and handcuffed him.
When Gavin asked defendant if anyone else was in the unit, defendant responded that his brother was. Gavin made another announcement at the door, and defendant's brother, Shakeem Williams, came down from upstairs. After he was removed from the apartment, Gavin and two other officers entered the premises to "clear [it] for people." While inside, the officers limited their search to areas where a person could have hidden; they did not find anyone. On his way out, Gavin saw a gray sweatshirt in the living room; the sweatshirt appeared to match the description of the sweatshirt provided by Coley. He seized the sweatshirt and removed it from the apartment.
After leaving the apartment, Gavin showed defendant, who was still in handcuffs, the sweatshirt and said: "this is even the sweatshirt they said you were wearing." Defendant responded that it was his sweatshirt and he had been wearing it for the previous two days.
The police subsequently removed the handcuffs from defendant, but it is unclear exactly when. Gavin again told him that the police were there because someone had said he had fired a gun. Defendant responded: "They said we shot the gun?" He also told Gavin that ...