On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1264.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 14, 2009
Before Judges Fisher and C.L. Miniman.
Defendant Danny Mai appeals from a January 15, 2008, Judgment of Conviction and Order for Commitment adjudicating him guilty of third-degree unlawful possession of a handgun contrary to N.J.S.A. 2C:39-5(b). Defendant's motion to suppress evidence under Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed. 2d 441, 455 (1963), was denied by order of October 24, 2007, and defendant thereafter entered a conditional guilty plea on November 26, 2007. Defendant was sentenced to probation for a period of two years conditioned on incarceration in the Hudson County Jail for 364 days and obtaining and maintaining gainful employment when released. Because the officers did not have "an objective, articulable, and reasonable basis to believe [defendant] was armed and dangerous" based on the totality of the circumstances, State v. Matthews, 398 N.J. Super. 551, 557 (App. Div.) (citing State v. Roach, 172 N.J. 19, 27 (2002)), certif. denied, 196 N.J. 344 (2008), we reverse.
Two witnesses testified at the October 15, 2007, suppression hearing: Officer Mike Szymanski and Sergeant Joseph Olszewski, both of whom were working the midnight tour on May 4, 2007, in separate police vehicles. Both received an anonymous report at 4:25 a.m. of a male with a gun wearing a black coat and black mask who was in the area of Jefferson and Oakland Avenues. Szymanski and his partner responded to that area within a minute or so. Olszewski had already arrived at the scene and observed a silver Nissan Quest minivan standing in the roadway under a street light near 97 Jefferson Avenue, half a block from the reported intersection. The minivan was surrounded by a group of eight to ten males and had five occupants, whose silhouettes were visible through the windows. None of the males outside the minivan fit the description reported by the tipster and none of them had guns. Szymanski and his partner, with the assistance of three other police units, including Olszewski's unit, then "conducted a motor vehicle stop" of the minivan and used their vehicles to block the street to prevent the minivan from leaving the scene.
Szymanski exited his vehicle and walked up to the passenger side of the minivan while his partner approached the driver side. Although Szymanski shined his flashlight through the windows of the minivan and could see people moving around inside, he could not discern what they were doing. Olszewski, who was standing in front of the minivan, saw that defendant was wearing a leather coat and had a black bandanna around his neck. He then instructed Szymanski to remove defendant from the vehicle and pat him down. Although Szymanski had no search or arrest warrant, he opened the rear passenger-side door. Szymanski testified that he did so because he was concerned for his safety, although he admitted that he had been instructed by Olszewski to remove defendant from the minivan. Olszewski testified that defendant was the target of their investigation because he was the only person who fit the anonymous description.
Once Szymanski had opened the rear door, he saw defendant sitting right next to the door he had opened. The other passengers were seated in the front passenger seat, the left rear passenger seat in the second row, and the third-row seat.*fn1 Because defendant was wearing a black, leather jacket and had a black bandanna around his neck, Szymanski instructed him to exit the minivan and place his hands on the ground to be patted down for weapons. The pat-down did not produce a weapon.
While Szymanski pulled defendant from the minivan, Olszewski moved around to the passenger side of the minivan. During the pat-down, Olszewski exclaimed, "There's a gun," and he instructed Szymanski to handcuff defendant. Olszewski removed the gun, which was a loaded, black .32 caliber Baretta Tomcat, from the minivan for safety reasons. Olszewski found the gun on the floor of the minivan "right where [defendant] was sitting." The other four occupants were then removed from the vehicle, handcuffed for the officers' safety, and identified. None but defendant matched the description given by the anonymous tipster. After defendant was arrested, another officer searched his person and seized a clip that fit the gun and a holster into which the gun fit. The vehicle was impounded for failure to inspect and make repairs, for which Summons #204486 was issued, and Summons #204487 was issued charging the operator with double-parking the minivan.
After argument on the motion, the judge placed his decision on the record. The judge found Szymanski to be a credible witness and concluded that, because of the anonymous tip, he had a safety concern for himself and his fellow officers. The judge found that the gun was in plain view and that, after defendant was placed under arrest, the clip and holster were found by a search incident to the arrest. He found that the elements of the tip were confirmed by defendant's attire, the gun, and the location of the minivan and that the circumstances of the individuals outside the minivan and the movement of the occupants in the minivan were suspicious given the early morning hour.
The judge concluded that the motor vehicle stop served to distinguish this case from the facts of Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed. 2d 254 (2000), and found that the search and seizure were, thus, not unreasonable. Citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968), the judge determined that the suspicious activity observed by the officers justified a search for weapons.
Additionally, he concluded that a police officer making a traffic stop could order the driver and passengers to exit the vehicle under Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed. 2d 331 (1997), and Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed. 2d 41 (1997). He determined that the search and seizure were reasonable and that, after the stop, the additional intrusion of instructing defendant to exit the minivan was minimal. He then concluded as follows:
Accordingly, the [c]court finds that [defendant] was ordered out of the minivan after a valid investigatory stop of the minivan had taken place. For the reasons I've enumerated, once that happens, we have a plain view of the gun in question which falls within [a] recognized exception to the general warrant requirement to be admissible. Katz v. United States, 389 U.S. 347[, 88 S.Ct. 507; 19 L.Ed. 2d 576 (1967)], State v. George, 257 N.J. Super. 493 [(App. Div. 1992)]. And from there we have . . . thereafter the arrest of the defendant and the search incident to the arrest where the additional paraphernalia connected to this gun are found. Based upon the foregoing, defendant's motion is denied. Defendant raises the following issue for our consideration:
THE COURT BELOW COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE SEIZED WHERE POLICE SPECIFICALLY STOPPED AND SEARCHED APPELLANT WITHOUT PROBABLE CAUSE, CONTRARY TO ...