On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment no. 09-02-0213.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 2010
Before Judges Carchman and Messano.
By leave granted, the State appeals from an interlocutory order of the Law Division suppressing evidence seized as a result of a search of defendant Calvin Johnson's parked vehicle. The State asserts that the investigating police officers had reasonable suspicion to justify an inquiry and investigation of defendant leading to a "plain view" sighting of the weapon and cocaine recovered from defendant's vehicle. We disagree and affirm.
These are the relevant facts adduced at the hearing conducted in the Law Division. On September 6, 2008, at approximately 7:00 p.m., the New Brunswick Police Department received a 911 call during which a local city resident informed police that his son had witnessed a drug transaction near 87 Remsen Avenue and observed "two individuals that were selling narcotics from their mouth." The caller did not identify himself and provided a brief description that one of the individuals was wearing a raincoat while the other wore "black pants." The weather was inclement, and it was raining that evening.
Upon receiving the anonymous tip, the New Brunswick Police Department dispatched Officers John Langan and Jeff Monticello to the scene. Langan described the area surrounding 87 Remsen Avenue as "extremely high crime, where numerous arrests ha[d] been made for violent offenses and narcotic offenses." Subsequently, he and his partner, who were both uniformed, proceeded to the area in a marked police car where they observed a man, later identified as defendant, wearing a raincoat and standing outside a local pizzeria. The officer neither observed a second man dressed in black pants nor see anyone selling narcotics from the mouth.
As they exited from their vehicle and approached the pizzeria, the officers watched defendant engaging in conduct that, according to the officer, strongly indicated defendant possessed narcotics. Langan stated that fifteen years of experience had acquainted him with individuals who sell "rock cocaine" from "their mouth." He claimed that they keep liquid nearby so they can quickly take a sip and swallow the narcotics along with the liquid if police approach. These individuals frequently wait until "the last minute" to drink the liquid to avoid ingesting the narcotics.
[A]s I arrived, I observed an individual with the raincoat on. This individual had a can in his right hand. Upon s[ee]ing police, he placed this can up to his lips. He didn't take a sip from it. He didn't drink from it. He just held it there at his lips. And we were still in the car at this time.
Langan further explained that defendant kept the can of soda pressed to his lips until police were about 20 feet away, at which time defendant "t[oo]k a sip of the drink, turn[ed] and walk[ed] right into the store."
Langan and Monticello subsequently followed defendant inside the pizzeria. There, defendant immediately reached into his pocket even though the officers had not yet requested his identification or asked him any questions. Believing that defendant might possess a weapon, Monticello grabbed defendant's hand to prevent him from obtaining any items inside his pocket. Defendant produced, from his pocket, a car key to a Honda, a police-issued traffic summons and money, items that Langan then took from defendant and retained. Langan claimed defendant "handed" these items over to him; however, the record is unclear as to whether defendant voluntarily did so.
Although the officers could not establish any suspicious narcotics-related activity during their initial encounter with defendant, they detained him anyway to find out why he was at the pizzeria. In response, defendant explained to the officers he was heading home to Piscataway but had first dropped off a friend, pointing to a man, later identified as co-defendant John Franklin, who was working behind the pizza counter. Defendant later admitted he and Franklin did not know each other. At this time, Franklin began accusing the police of "harassment," prompting the officers to conduct a warrant check that revealed several active warrants for Franklin in New Brunswick and Paterson. Langan said defendant's behavior also changed during this time, noting that defendant began sweating, appeared very nervous and "his right leg [started] to tremble."
With Monticello guarding both defendants inside, Langan checked the police-issued traffic summons and discovered the vehicle the ticket described was unregistered. The summons, which was issued by the Plainfield Police Department, identified the vehicle as being a "blue Honda with a temporary PA tag." Langan then saw a Honda matching that description parked about ten to fifteen feet away from the pizzeria's entrance and proceeded outside to confirm his suspicions "out of curiosity." Once he established the Honda had expired Pennsylvania tags, Langan walked around the car to peer inside the passenger side window. Langan testified the windows were "slightly tinted" and "a little hard to see" so he had to use "[his] hands to cup [his] eyes." At that time, Langan spotted what appeared to be a silver handgun wedged between the center console and passenger seat.
Believing the car contained a concealed weapon, Langan entered the vehicle and confirmed the presence of a revolver. Langan could not verify how he gained entry, stating "I don't know if I had to use the key to unlock it or if the door was already open." Now armed with the knowledge defendant was traveling with a weapon, Langan left the gun in the car so as not to "alarm anyone" and re-entered the pizzeria to inform his partner they would be making an arrest. Langan admitted that before he returned inside, he failed to check whether the gun was loaded and instead just "closed the door." It was only established after defendant's arrest that the gun had "three rounds inside the chamber."
Once inside the pizzeria, Langan called for backup units to assist the officers with their arrest. Langan testified that a "minimum of eight men" are required to be on duty for city police matters at any given time and only two officers per sector. Moreover, he claimed the city encourages "for safety reasons [that] two officers should transport a prisoner." Langan and his partner did not "secure" defendant until after additional units arrived. Following defendant's arrest, Langan returned to the parked car and conducted a more extensive search of the passenger ...