On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-06-1541-D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011
Before Judges Kestin and Newman.
Defendant Antonio C. DeShazo appeals from an order denying a motion to suppress a handgun uncovered in the automobile he was driving when stopped by the police in Egg Harbor Township.
On a separate indictment, No. 09-04-1050, defendant pled guilty to cocaine distribution and was sentenced to a term of seven years imprisonment. On Indictment No. 08-06-1541-D, involving the subject search and seizure, defendant pled guilty to unlawful possession of a handgun and was sentenced to a term of five years imprisonment with a three-year period of parole ineligibility to run concurrent to the seven-year sentence. Defendant does not appeal from the drug distribution conviction. We now reverse.
The relevant facts may be summarized as follows. Officer Michael Bordonaro of the Egg Harbor Township Police Department was monitoring traffic on May 24, 2008, at 4:23 p.m., when he saw a silver vehicle drive by bearing Virginia license plates, with the rear window broken out. The window was duct-taped and covered with plastic. Trying to determine if the car was reported stolen, Officer Bordonaro was advised by the dispatch unit that the National Crime Information Center (NCIC) computer index was not operating. Rather than waiting for NCIC to come back online, he made a motor vehicle stop of the car.
The vehicle stopped "abruptly" and pulled over when directed to do so. Officer Bordonaro saw two occupants in the car, a driver and front seat passenger. He testified at the suppression hearing that he observed the driver "reach down" toward the center console "in a frantic movement" and then turn his body, reaching "all the way into the back seat." Officer Bordonaro called for backup.
Officer Bordonaro testified that he asked the passenger to put his hands on his lap and requested the driver produce his license, registration, and insurance card. The driver "did not have his driver's license," but "identified himself as Anthony DeShazo." Officer Bordonaro recognized DeShazo's name as the victim of a shooting in Pleasantville two nights before when Officer Bordonaro, with his K-9 partner, went to Pleasantville to aid in an investigation. Officer Bordonaro testified that he was told by Officer Terri Tully that DeShazo was the victim of a shooting and kept "a weapon in the center console of [his] vehicle."
The passenger, who was later determined to be Tejohn Cooper, "moved his hands down to his sides." Officer Bordonaro directed him to place his hands on the dashboard. Before doing so, Cooper turned and looked at Officer Bordonaro's weapon and then complied with the officer's request.
Lieutenant Christopher Ruef and Officer Davenport arrived as backup. Defendant was then requested to exit the car so that he could be patted down. While defendant complied with the request, he started berating the officers and "accusing them of harassment," which led to defendant being placed in the back seat of Officer Davenport's patrol car. Defendant was not placed under arrest, but was in custody.
The officers also removed Cooper, who lacked any identification, from the car. He was patted down and told to sit on the curb near the rear of the stopped vehicle. With the scene under control, Officer Davenport searched the vehicle and found a velvet Crown Royal bag containing bullets on the back seat. Defendant was informed that they had found the bullets, but remarked that the officers had not located a gun. According to Officer Bordonaro's testimony, when "ask[ed] if there was a gun," defendant replied, "it's not here." The search of the vehicle's passenger compartment continued. Lt. "Ruef went into the back seat and pulled down a cord, which gave him access to the trunk" from the interior of the driving compartment. He found a loaded .9 mm handgun. As noted in defendant's brief, he also discovered "a ski mask, zip ties, and a [bandolera] for shotgun shells."
The officers then handcuffed Cooper and put him in the back seat of a later-arriving officer's patrol car. Officer Bordonaro testified he then "handcuffed [defendant] and advised him he was under arrest." Officer Bordonaro's drug-sniffing dog then was used to search the vehicle. The dog's reaction to the front passenger seat led to the discovery of a small bag of cocaine under the seat. A scale and a large knife were found under the rear passenger seat.
In denying the motion to suppress, the trial judge made the following pertinent findings of ...