On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-12-2251.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Wefing and Messano.
Following a jury trial, defendant Troy Roberts was convicted of third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f). He was sentenced to an aggregate term of four years in prison. On appeal, he raises a single point:
THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S MOTION TO SUPPRESS WHERE THE INVESTIGATORY STOP WAS CONDUCTED ON LESS THAN REASONABLE SUSPICION.
We have considered this contention in light of the record and applicable legal standards. We affirm.
A pre-trial evidentiary hearing on defendant's motion to suppress took place before now-retired Judge Sebastian Gaeta, Jr. Ramsey Police detective Brian Huth testified that on August 13, 2003, at approximately 10:30 p.m., he was in an unmarked police car "checking a suspicious person that [he] happened upon" in the rear parking lot of the Maple Shade Motel on Route 17. Police officer Brian Lyman responded to Huth's call for back-up assistance in a marked patrol car. The "suspicious person," a woman in a parked car, was "released" after the officers "checked" her.
Before the woman drove off, however, a black Honda turned the corner of the motel and approached Huth and Lyman as they stood outside their cars. The car came "within ten feet" of the officers, "immediately stopped," and backed up "in a rapid manner." The area behind the motel was "very tight... overgrown with... vegetation[,]" and basically permitted only one-way traffic. The Honda, with four male occupants, backed off the edge of the parking lot and into a bush.
Huth believed "the driver was impaired or something was afoot that [he] needed to check." The driver appeared to "cut the wheels to get away" when Lyman ordered him to stop. Huth observed the front seat passenger, defendant, "[r]eaching down towards his feet." Lyman approached the car on the driver's side and Huth proceeded to defendant's side. He asked defendant what he had reached for, but defendant "denied reaching." Huth asked defendant to exit the Honda, and he complied. He told Huth that "they were there to meet some girls." When Huth asked if there were any weapons in the car, defendant "lift[ed] his shirt" and said, "I don't have any weapons on me."
The passenger side door was open and Huth shined his flashlight "towards the area where [he] saw [defendant] bend down." He observed "the back strap of a pistol." Huth ordered defendant onto the ground, radioed for additional backup, and seized a.40 caliber handgun from the floor of the front-passenger side of the Honda. It was loaded with a clip of ammunition.
Defendant argued that the officers lacked any reasonable, articulable suspicion to stop the Honda; therefore, the subsequent order Huth gave to have defendant exit the car, Huth's subsequent observations, and ultimately the seizure of the gun and ammunition without a warrant, were illegal. The prosecutor argued that the sudden and erratic movements of the car when the driver unexpectedly saw the police supported the original stop of the car, since it provided the officers with a reasonable suspicion that various motor vehicle offenses were committed, in particular, driving while intoxicated. He further argued that Huth had a reasonable, articulable suspicion to order defendant out of the car based upon his "furtive movements...." Lastly, the prosecutor noted that Huth "was lawfully in th[e] area" of the passenger side door when he observed the gun on the floor of the car.
Implicitly finding Huth's testimony credible, Judge Gaeta noted that "[l]aw enforcement officers may stop a motor vehicle upon 'articulable reasonable suspicion' that a motor vehicle offense had occurred." Noting further that "[n]ot every suspicious action" or "over reaction to police presence warrant[s] a stop," the judge reasoned that "in combination [with other facts], they may well do so." Citing the driver's actions in abruptly stopping his car, "putting the vehicle in reverse and driving into bushes at the edge of ...