On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-08-1929.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges Lihotz and Messano.
Defendant Arnaldo Lopez appeals from a March 8, 2007 Law Division order denying his motion to suppress evidence found following his detainer and arrest for the petty disorderly offense of defiant trespass, N.J.S.A. 2C:18-3(b).*fn1 Following a suppression hearing, Judge Mellaci denied defendant's motion. Thereafter, pursuant to the terms of a plea agreement with the State, defendant entered a guilty plea to third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The State agreed to dismiss both the remaining count of the indictment charging fourth-degree acquiring a handgun without a permit to purchase, N.J.S.A. 2C:39-10(a), and the summons alleging defiant trespass. Defendant received a two-year probationary sentence and was required to attend substance abuse counseling, obtain a GED, and pay applicable fines and penalties.
Defendant's guilty plea preserved his right to appeal the denial of his motion to suppress. R. 3:5-7. In a single point on appeal, defendant argues:
THE POLICE LACKED THE REQUISITE CONSTIT[UT]IONAL BASIS TO SEIZE DEFENDANT AND THE RESULTING SEIZURE OF THE GUN WAS THE FRUIT OF AN UNCONSTITUTIONAL INVESTIGATIVE STOP AND SHOULD HAVE BEEN SUPPRESSED (U.S. Const. Amend. IV, XIV; N.J. Const., Art. I, Par. 7).
The facts are taken from testimony presented at the suppression hearing. The State called Asbury Park Police Officer John Sosdian who was patrolling the 600 block of Second Avenue on April 8, 2006. Sosdian knew the block had a history of criminal activity complaints and the police department had made arrests for "open-air drug trafficking," weapons, and trespassing offenses.
On the night in question, Sosdian noticed defendant and co-defendant Adrian Miller standing on the front porch of a six-unit apartment building located at 610 Second Avenue (the property). In the past, Sosdian had been dispatched to investigate citizen complaints regarding trespassers selling drugs on the porch of the property. Additionally, Sosdian observed a "no trespassing" sign posted on the front door of the building. Sosdian exited his patrol car and approached the men to inquire why they were standing outside the property at 1:42 a.m.
In response to the officer's questions, defendant stated he was visiting a resident named Cruz. Miller suggested he was just "hanging-out" with defendant. Defendant could not answer Sosdian's follow-up questions seeking Cruz's full name or his apartment number. As defendant spoke, Miller turned his back to Sosdian to face the building, placing his hands out of sight. Sosdian instructed Miller to turn around, but he refused. Sosdian interrupted his questioning to again direct Miller to face him. This time Miller angled himself turning partially towards Sosdian, but his hands and the front of his body remained out of view.
Because Miller acted as if he was "hiding something," Sosdian's suspicions were raised and he believed Miller might have a weapon. Sosdian continued to question both men to determine their purpose at the property at such an early hour. Miller again turned his body away from Sosdian and looked at the officer over his shoulder. Although repeatedly told to turn around, Miller continually refused.
Sosdian ordered Miller to place his hands on his head, told defendant to sit on the porch landing, and placed Miller under arrest for trespassing. While Sosdian handcuffed Miller, defendant "stood up, backed against the rail, and . . . drop[ped] a silver object" he was holding behind his back over a metal railing onto the ground below. Sosdian then arrested defendant for trespassing.
A backup officer arrived on the scene and examined the area beneath the railing where defendant discarded the silver object. The officer retrieved a loaded, semi-automatic, silver Smith & Wesson 9mm handgun (the handgun). When Sosdian patted Miller down, ...