September 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARRELL MASHAWN HALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 06-10-1040, 05-07-0712 and 05-05-0429.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Fisher and Baxter.
In this appeal, we review an order denying defendant's motion to suppress. Because the evidence supports the trial judge's findings that the police had a reasonable suspicion to stop defendant's vehicle, and because one critical piece of evidence, a handgun, was properly deemed abandoned, we affirm the order under review.
Defendant was charged, in Indictment No. 05-07-0712, with second-degree certain persons not permitted to possess firearms, N.J.S.A. 2C:39-7(b), and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). He unsuccessfully moved for the suppression of evidence, and, following a mistrial, pled guilty to the second-degree offense contained in that indictment and was sentenced to a five-year prison term. At that time, defendant also pled guilty to CDS offenses charged in Indictment No. 05-05-0429, and to committing an aggravated assault as charged in Indictment No. 06-10-1040.
Defendant filed a notice of appeal. The judgments entered with regard to the latter two indictments were referenced in the notice of appeal, but defendant has not raised any arguments regarding those judgments. Instead, defendant has raised only a single issue for our consideration that relates only to the judgment of conviction entered with regard to Indictment No. 05-07-0712:
THE MOTION TO SUPPRESS WAS ERRONEOUSLY DENIED BECAUSE THE POLICE OFFICERS LACKED REASONABLE SUSPICION OF CRIMINAL ACTIVITY SUFFICIENT TO JUSTIFY THE INVESTIGATORY STOP OF THE VEHICLE IN WHICH APPELLANT WAS A PASSENGER, LEADING TO HIS UNLAWFUL ARREST AND UNLAWFUL SEIZURE OF HIS FIREARM.
We find no merit in this argument.
At the suppression hearing, the judge heard the testimony of two police officers, Detectives John Carrigg and Jason Astbury, who were on patrol in North Trenton on March 26, 2005. The officers testified that they heard shots fired at 1:42 a.m., and started searching the area for circumstances, such as "cars taking off," "people running," or "anybody jumping up and down, flagging us, saying they heard shots." After a few minutes canvassing the area, the officers took a surveillance position in a lot on Chase Street.
According to the officers' testimony, at 1:53 a.m., they observed a Plymouth Acclaim driving up Chase Street at an extremely slow rate of speed. There were four occupants in the Acclaim, all of whom appeared to be looking around. When Detective Astbury indicated that the vehicle appeared to have a "fake temp tag," the officers decided to follow the Acclaim. However, before their unmarked vehicle even moved, the Acclaim "accelerated at a high rate of speed." The officers followed the Acclaim and both observed, as the Acclaim went around a bend in Chase Street, and while their vehicle was approximately ten or fifteen feet behind, that "the right rear passenger threw a dark object out of the window." Both officers testified that they thought and expressed to each other that the object thrown from the vehicle appeared to be a gun.
The officers continued to follow the Acclaim as it made a left turn off Chase Street onto East Paul Street. They radioed to other units in the area to advise of what they had observed and to request assistance. The officers continued to follow the Acclaim and activated their overhead lights when the Acclaim made a left turn off East Paul Street and onto Martin Luther King Boulevard. The Acclaim then came to a stop.
At this point, another police vehicle arrived. As Detective Carrigg and the officers in the other vehicle had the Acclaim's occupants exit the Acclaim, Detective Astbury drove to the location where he and Detective Carrigg had seen the item, which appeared to them to be a gun, discarded on Chase Street.
The occupants of the vehicle, including defendant, who was the right rear passenger, were asked to exit the vehicle. Defendant and another occupant were wearing clear latex gloves and all four occupants were wearing black ski masks. All the occupants were directed to sit on the curb by the side of the road.
Detective Astbury soon thereafter found a handgun, which was identified as a .38 caliber Bersa handgun, in the location where he and Detective Carrigg had seen an object discarded from the Acclaim. He radioed this information to Detective Carrigg and the occupants of the Acclaim were then placed under arrest.
In finding the police had a reasonable suspicion to stop the Acclaim, the trial judge relied upon two circumstances: (1) the officers' suspicions about the allegedly "fake temp tag" on the vehicle, and (2) a confluence of other circumstances, namely: the high crime area in which the vehicle was observed, the furtive movements of the Acclaim's occupants witnessed by the officers as the vehicle drove down Chase Street, the extremely slow speed of the Acclaim followed by its rapid acceleration, and the discarding from the vehicle of an object that appeared to be a gun. We need not consider the sufficiency of the judge's findings and conclusions about the allegedly "fake temp tag" because we are satisfied that the evidence supported the judge's findings about the other circumstances, and that those circumstances unmistakably demonstrated that the officers possessed a reasonable suspicion that the Acclaim's occupants had been or were engaged in criminal activity. State v. Nishina, 175 N.J. 502, 511 (2003).
It is undoubtedly true, as defendant argues, that merely being in a high crime area is insufficient to meet this standard, see Maryland v. Buie, 494 U.S. 325, 334 n.2, 110 S.Ct. 1093, 1098 n.2, 108 L.Ed. 2d 276, 286 n.2 (1990); State v. Valentine, 134 N.J. 536, 547 (1994), and it may be true that some of the circumstances cited by the trial judge, standing alone, may not support such a finding. But all the information then available to the officers, including that the stop occurred in a high crime area, must be considered on the whole. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed. 2d 621, 629 (1981); State v. Nishina, supra, 175 N.J. at 512. When so examined, there is more than ample evidence to support the finding that the officers possessed a reasonable suspicion to stop the Acclaim. Accordingly, we conclude that the motion to suppress the evidence obtained from the vehicle and its occupants as a result of the vehicle stop was properly denied.
We also find no merit in defendant's argument that the handgun found by Detective Astbury on Chase Street should have been suppressed. The trial judge, after weighing the testimony presented at the hearing, concluded that the handgun was abandoned, citing State v. Farinich, 179 N.J. Super. 1, 5-7 (App. Div. 1981) (defining abandonment in this context as occurring when one "voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search"), aff'd o.b., 89 N.J. 378 (1982). See also State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999). We conclude that the judge's findings are supported by the testimony she found credible and are entitled to our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999). We also conclude that these findings demonstrate that the handgun was abandoned and that defendant's argument to the contrary is insufficient to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
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