On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-03-0413.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 11, 2009
Before Judges Axelrad and Messano.
On March 24, 2005, a Union County grand jury returned Indictment No. 05-03-00411, charging defendant, Yusef Gethers, with second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1). On the same date, a Union County grand jury returned Indictment No. 05-03-00413, charging defendant with third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b) (count one), and fourth-degree possession of a prohibited device, hollow-point bullets, N.J.S.A. 2C:39-3(f). Following denial of his motion to suppress evidence and our denial of leave to appeal, defendant pled guilty to count one of Indictment No. 05-03-00413, third-degree unlawful possession of a weapon. Pursuant to a plea bargain reached with the State, defendant was sentenced to five years probation, conditioned upon 364 days of house arrest. The court dismissed the remaining charges under Indictment Nos. 05-03-00411 and 05-03-00413, as well as a municipal court warrant against defendant, and imposed appropriate fees and penalties. Defendant appealed the suppression ruling. We reverse and remand.
At the suppression hearing on October 7, 2005, Officer Edward Jackson of the Plainfield Police Department testified on behalf of the State. While on patrol at approximately 7:00 p.m. on October 9, 2004, the officer was directed by dispatch to go to 709 West Front Street in response to a call from a citizen informant who claimed a black male wearing a baseball cap pointed a gun at her and fled in a green Chrysler four-door Concord with license number RRY69C driven by a black female with ponytails. The transmission also contained information that the gun was placed in a backpack in the car. While in progress to that address, the officer received a second transmission from Sgt. Hafeken who was reporting to l037 West Fourth Street, the address to which the vehicle had been traced after a registration check was run, directing him to divert there as back-up. A total of three marked units with four uniformed and armed officers responded to the scene; Officer Lucky and his partner Officer Tyler responded to the scene first, followed by Officer Hafeken and Officer Jackson. Upon their arrival, the officers observed a green car with tinted windows pulling into the driveway of a residence. They exited their vehicles.
As the officers approached, a woman matching the dispatch description, later identified as co-defendant Quadriyyah Abdullah, exited the vehicle from the driver's side. The officers ordered her to put her hands on top of the car for her safety. Abdullah told the police she had let defendant out of the car before she pulled the car into the driveway because he was in a wheelchair. Officer Jackson observed defendant, a black male wearing a baseball cap, in a wheelchair about ten to fifteen feet further down the driveway.
Officer Jackson explained that he was standing near Officer Lucky, who was by the driver's side door, when the other officer searched the vehicle for weapons. Officer Lucky found a black backpack behind the driver's seat. Because the windows were tinted and the doors were closed, Officer Jackson admitted in cross-examination that he was not able to see the backpack in the car before the car was entered. The officers opened the backpack and discovered a loaded handgun. Both Abdullah and defendant were placed under arrest. Officer Jackson estimated that about fifteen minutes had passed between the time he was asked to respond to the scene and the time handcuffs were placed on Abdullah, and about three minutes from the time he visualized the gun to the time she was handcuffed.
In a written opinion, the court found the search of the vehicle was justified under the automobile exception to the warrant requirement, finding both probable cause and exigency, and denied defendant's motion to suppress. Probable cause was based on the report by the citizen informant, purporting to be the victim of a crime, of the armed man and description of the car and occupants, and information of a gun placed in a backpack in the car. The officers corroborated this information when they observed the car and the occupants. The court further stated, "Additionally, police on the scene spotted a black back pack in the rear of the vehicle, which is where [the victim] had told the police dispatcher the gun had been placed."
The court explained its rationale for finding exigent circumstances as follows:
Exigent circumstances are frequently found when guns are involved because of the potential threat to human life. Moreover, when the police are called upon to respond to a crime reported to be in progress, police judgments are accorded an extra degree of deference. Reardon v. Wroan, 811 F.2d 1025 (7th Cir. l987). The officers were involved in an ongoing investigation of events that occurred close in time. Despite the occupants exiting the car, the exigent circumstances remained because there was the potential that persons other than the occupants could access the car. The fact that the officers had a reasonable suspicion that there may have been a deadly weapon present in the car made it imperative that they secure the weapon for the public and their own safety. Thus, the search of the vehicle was valid pursuant to the automobile exception.
The decision was memorialized in an order of November 4, 2005. This appeal ensued.
On appeal, defendant seeks reversal of the suppression ruling, arguing: (1) the backpack and gun found inside were the direct and unattenuated results of an unconstitutional arrest because the police lacked probable cause, and (2) the warrantless searches of both the vehicle and the backpack inside it were unconstitutional as they were not supported either by probable cause or exigent circumstances. As to the first argument, defendant asserts that the police, by virtue of the information given by the citizen informant, did not have the requisite probable cause to place Abdullah in custody and seize the weapon without inquiry, in essence, effectuating an immediate arrest of his co-defendant.*fn1 According to defendant, because all four uniformed and armed police officers converged on the car, and no one questioned either the driver or defendant, the primary suspect according to the emergency call, about purported criminal activity, the original seizure of co-defendant was a de facto unlawful arrest without probable cause, rather than a mere investigatory detention. See Terry v. Ohio, 392 U.S. l, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed. 2d 889, 911 (1968) (permitting an investigatory stop and limited protective search for weapons justified by some objective manifestation that the suspect was or is involved in some criminal activity, involving something less than the probable cause standard needed to support an arrest); State v. Dickey, 152 N.J. 468, 478-79 (1998) (discussing factors needed to transform an investigative stop into a de facto arrest). None of the officers asked anything of Abdullah or defendant before searching the car for the backpack. Nor did they pat down either of the suspects to establish the officers' safety. At most, the only interaction was demanding that the driver place her hands on top of the car and ascertaining from her that defendant, who was located down the driveway in a wheelchair, had been in the car. By Officer Jackson's admission, the officers converged on the car, searched it and the backpack, and found the gun. Moreover, although the driver was actually handcuffed after the gun was found, defendant submits it was obvious Abdullah was under arrest the moment she exited her car, before the officers searched it. Defendant asserts that none of the officers witnessed corroborating behavior to establish the fact of the alleged criminal activity and thus the dispatched information that defendant threatened the citizen informant with a gun, without more, was insufficient to give police probable cause for the arrest. See State v. Kurland, 130 N.J. Super. 110, 115 (App. Div. l974) (findings of probable cause based on a citizen's information, either for an arrest or a search, have always included support "by the subsequent police investigation"); State v. Lakomy, 126 N.J. Super. 430, 432-34 (App. Div. l974) (information by a citizen informant that he had seen a man carrying a gun warranted a "stop and frisk" or pat-down search of the man in order to complete the investigation of the complaint, as opposed to a formal arrest requiring probable cause). Accordingly, defendant contends the gun seized from the backpack must be excluded from evidence as the "fruit of the poisonous tree," Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed. 2d 441, 455 (1963), as tainted by the primary illegality of co-defendant's arrest without probable cause.
As to the second argument, defendant asserts the police did not have a right to search the car, when it was parked in the driveway of co-defendant's house, of which they were aware when they located it, without first securing a search warrant. He challenges the court's finding of the two predicates of the automobile exception to the warrant requirement - probable cause and exigent circumstances. See State v. Dunlap, 185 N.J. 543, 549-550 (2006); State v. Cooke, 163 N.J. 657, 661 (2000). As previously argued, the police had, at most, a reasonable suspicion, and not probable cause, to believe that a gun was in the vehicle. Furthermore, defendant urges the State has failed to meet its burden of exigency to justify the warrantless search of co-defendant's car. Dunlap, supra, 185 N.J. at 549-50; Cooke, supra, 163 N.J. at 675-76. Defendant emphasizes that the gun was seized upon a search immediately upon the driver's exiting the vehicle. At police direction, she had her hands on top of the car. Defendant was already outside the vehicle, ten to fifteen feet away, sitting in a wheelchair. Neither occupant made any furtive gestures either to conceal the vehicle's contents or in contravention of police safety. In fact, there was no indication the officers feared for their safety as they never searched either occupant for weapons. Moreover, when the police converged on the car, it was already parked in the driveway of the residence to which it was registered. When the officers searched it, the two occupants were no longer in it and neither had control over it. There was no assertion there were any ...