On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 07-11-0982.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Fuentes.
On leave granted, the State appeals from the trial court's August 22, 2008 order granting defendants' motion to suppress evidence seized during a warrantless search of an automobile. We reverse.
The suppression hearing disclosed the following facts. On June 22, 2007, at approximately 9:00 p.m., an anonymous 9-1-1 caller contacted the Vineland police, telling the dispatcher that two black men in a black Chevrolet Impala, with New York license plate number DYL5881, were in possession of handguns. The caller informed the dispatcher that the car was parked at a soccer field off of Spring Road.
Vineland Police Officers Kevin Gentilini, Brian Jones, and Sergeant Pedro Casiano, responded to the call, arriving at the soccer field at approximately the same time. They approached a car that exactly matched the caller's description, in which the officers observed two African American men, who they later identified as defendants. There was sufficient light in the area to see the occupants of the car. When the officers arrived, they did not observe the occupants engage in any unlawful conduct.
The officers approached the automobile within a minute or two of their arrival. The car's windows were up. Gentilini told the occupants to keep their hands where the officers could see them; the men initially complied, but then put their hands down. Gentilini saw the occupants bend over, "as if they were reaching for something underneath their seats." He shouted at them to keep their hands where the officers could see them and to stop reaching underneath their seats, but they did not comply.
Because the officers believed the occupants could be reaching for weapons, they drew their service revolvers and ordered the men to put their hands up. Gentilini told the men to raise their hands at least five or six times before he reached the car; Jones told them to raise their hands at least ten times. After the officers drew their weapons, the men raised their hands; nevertheless, Jones saw the passenger repeatedly drop his left arm and appear to reach toward the floor of the vehicle.
The officers also asked the occupants several times to unlock the car doors and roll down the windows, but "they kept nodding their head[s] no." Sergeant Casiano ordered the man in the front passenger seat out of the car, but he replied that he was unable to unlock the door. After the officers ordered the men out of the car several more times, and they failed to respond, Jones unsuccessfully attempted to break the front passenger window with his collapsible baton.
At this point, the driver unlocked the doors, and the men got out of the car. As the passenger got out, Sergeant Casiano used his flashlight to look at the floorboard on the driver's side, where he saw a six-inch stun gun shaped as a pen in plain view. He then "further illuminated [his] flashlight underneath the seat on the driver's side and saw a handgun." After the passenger got out of the car, Sergeant Casiano entered the vehicle to look under the seats and saw another handgun under the passenger seat.
After informing the other officers what he had seen inside the vehicle, Sergeant Casiano ordered them not to arrest the men until backup units arrived. When the driver got out of the car before the passenger, he was told to lay prone on the ground with his face down. Less than a minute later, another officer arrived. The police then placed defendants in handcuffs.
After they handcuffed defendants, the police placed them on the ground at the rear of the car until another patrol car arrived, at which time they placed defendants in that vehicle. The officers then secured the car, towed it to the police station, and obtained a search warrant.
On substantially these facts, the trial court granted the suppression motion in a written opinion. In doing so, ...