On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0550.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2009
Before Judges Wefing and Yannotti.
Defendant Rabbil Ford was charged under Union County Indictment No. 06-06-0550 with possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a(1) (count one); possession of a weapon without a permit, N.J.S.A. 2C:39-5b (count two); and terroristic threats, N.J.S.A. 2C:12-3a (count three). After his motion to suppress evidence was denied, defendant entered a plea of guilty to count two and, in exchange, the State agreed to recommend dismissal of the other two counts. Defendant was sentenced to five years of incarceration. Defendant appeals and challenges the denial of his motion to suppress. We affirm.
The facts relevant to our decision are essentially undisputed. At approximately 6:20 a.m. on January 22, 2006, Pierre Foster (Foster) called the Elizabeth Police Department and reported that he had been threatened by a man with a handgun while waiting for a bus at 1101 East Jersey Street. Shortly thereafter, Lieutenant James Mooney (Mooney) and Officers Brian McDonough (McDonough) and Christopher McMahon (McMahon) of the City's Police Department received a radio transmission indicating that a black male had threatened another man with a handgun in the area of 1101 East Jersey Street. The officers were told that the suspect was accompanied by a black female, both parties were wearing dark clothing, and they were last seen walking on East Jersey Street towards Jefferson Avenue.
McDonough, McMahon and Mooney responded in two police vehicles from the area near police headquarters. The officers turned south onto Jefferson Avenue from East Grand Street. On Jefferson Avenue, the officers immediately observed defendant and a female, who was later identified as Barbara Jean Pryor (Pryor). They were wearing dark clothing and walking in front of 151 Jefferson Avenue, which is less than two blocks from the location of the threat reported to the police. According to the officers, defendant and Pryor were the only pedestrians in the area at the time.
Upon observing defendant and Pryor, the officers exited their vehicles and drew their firearms. They ordered defendant and Pryor to show their hands. Pryor immediately complied but defendant kept both of his hands in the pockets of his jacket, and he did not comply until after he had been ordered several times to show his hands. The officers then ordered defendant and Pryor to place their hands on the wall of a building at 151 Jefferson Avenue.
Mooney conducted a pat-down search of defendant. Mooney found a loaded .45 caliber handgun in the left, front pocket of defendant's jacket. A bullet was in the chamber of the gun. The gun was cocked and ready to be fired. Mooney seized the gun. McDonough handcuffed defendant and placed him under arrest. McMahon then searched defendant and seized a black leather holster from the right side of defendant's waist area. Police Officer Mayella Aryola, who responded to the scene, searched Pryor but found no weapons. Other officers brought Foster to the scene and he identified defendant as the person who threatened him earlier while he was waiting for the bus.
In denying the motion to suppress, the trial court made the following findings:
In this situation[,] the information provided by the citizen included his name so that we [did not] have an anonymous tip here. We had someone who was willing to come forward, present his name and presumably be a witness at any time in the future. He provided a location. There was a time. He said [the] number of persons, their race, their location, their gender[s] and the fact that they were wearing dark clothing.
Now, the fact of the matter is that at 6:20 in the morning there [are not] going to be a lot of people on the street and it just so happened that the police were able to arrive shortly after this information was communicated to the police and . . . they found two people who . . . matched [the description given to the police] exactly and matched also the location . . . that was given by the victim since the victim indicated that the perpetrator and his companion were walking in the direction of Jefferson Avenue. This was a place where the defendant was found and was consistent . . . with the description that had been given by the victim.
So under those circumstances I think that the police were actually obligated, not just permitted, but obligated to investigate this particular defendant . . . at this particular location under these particular circumstances, particularly in light of the fact that there was no relationship between the victim and the perpetrator. There was just a . . . person on the street who happened to . . . look at [defendant's girlfriend] the wrong way and that was enough to prompt a threat of gunfire.
So under those circumstances . . . I think [the police] acted completely reasonably and [therefore] the ...