On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-12-0780.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Waugh.
Following an unsuccessful motion to suppress, defendant Bernard Monell Dickens, Jr., entered a plea of guilty to second-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5b; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and second-degree possession of a firearm by a person prohibited from possessing weapons, N.J.S.A. 2C:39-7. The trial judge sentenced defendant to an aggregate term of five years imprisonment with a five-year period of parole ineligibility together with mandated fines, penalties and assessments. Defendant now appeals from the denial of the motion to suppress, and we affirm.
These are the facts adduced at the hearing on the motion. On November 4, 2003, at approximately 10:50 p.m., Officer Keith A. Reynolds and several other officers of the Somerville Police Department were dispatched to the area of Hamilton Street following a 9-1-1 report of a disturbance involving a possible handgun. The report also indicated that the individuals involved in the disturbance were driving a tan Ford Focus heading towards Mechanic Street.
When he received the report concerning the disturbance, Officer Reynolds, who was in his marked patrol car one block away from the scene, turned onto Mechanic Street where he observed a brown Ford Escort with a shattered rear window parked illegally on the east side of the street. The officer observed defendant and three other men cleaning shattered glass out of the rear of the car.
Because the brown Ford Escort was similar in style to a Ford Focus, was parked illegally on Mechanic Street and because its rear window appeared to have been shattered by a gunshot, Reynolds concluded that the vehicle was the one that had been the subject of the radio dispatch. After informing police headquarters of his observations, and with a "heightened sense of safety," the officer exited his vehicle, drew his service weapon, ordered the four men to move onto the sidewalk and required them to get down on their knees.
Three of the men on Mechanic Street complied with the officer's orders, but defendant failed to do so and began walking away. Although the officer ordered defendant to stop, he kept walking away while simultaneously putting his hand in his right coat pocket. Defendant also yelled back to the officer that he lived a few houses down the street. This proved to be false as defendant resided in North Plainfield.
While another officer covered the three men kneeling on the sidewalk, Reynolds pursued defendant. He caught up to defendant on the front lawn of a nearby house, grabbed defendant by the collar and the arm and informed him that he was under arrest. Defendant struggled, attempting to put his right hand into his right coat pocket. As a result, the officer, with his weapon still out and still in a stage of "very heightened alert," told defendant that he would be forced to shoot him if he did not take his hand out of his pocket. After hearing this, defendant finally stopped struggling, allowing the officer to start leading him back towards the brown Ford.
As the two men neared the Ford, defendant began struggling again. Another officer came to Reynolds' aid, and the two officers were able to wrestle defendant to the ground. Once on the ground, however, defendant was still able to get his right hand into his right coat pocket. Concerned about what might have been in this pocket, one officer grabbed defendant's right arm and forcibly removed his hand from the pocket, making sure that the hand stayed empty.
Defendant was finally subdued, and a pat-down led to the discovery defendant had a loaded nine millimeter semi-automatic handgun in his right coat pocket. This handgun proved to have been stolen.
On appeal, defendant asserts that the search and seizure were in violation of both the United States and State Constitution. U.S. Const., amends. IV, XIV; N.J. Const., art. 1 ¶ 7. More specifically, he claims that the "tip" "failed to provide the police with 'an objective, articulable, and reasonable basis to believe the subject of the stop was armed and dangerous.'" State v. Matthews, 398 N.J. Super. 551, 557 (App. Div.), certif. denied, 196 N.J. 344 (2008) (citing State v. Roach, 172 N.J. 19, 27 (2002)).
A motion to suppress is a mixed issue of fact and law. Our review of a motion to suppress requires us to "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). However, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then the appellate court should review 'the record as if it were deciding the matter at inception and make its own findings and conclusions.'" Mann, supra, 203 N.J. at 337 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Nevertheless, "[i]t is a well-established principle of appellate review that a reviewing court is neither bound ...