On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 08-10-00863; 00864 and 00865.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2011
Before Judges Fuentes, Gilroy and Nugent.
By leave granted, the State appeals from the order of the trial court granting defendants Larson O'Connor and Corey Moore's motion to suppress evidence seized by the police during a warrantless search of their car. The police searched defendants' vehicle based on an anonymous tip that two African-American men inside an SUV parked in a particular location were displaying a firearm to bystanders. Because this information was provided by an anonymous source and the police only corroborated non-incriminatory details of the information provided, the trial court found probable cause did not exist to justify the search under the automobile exception to the warrant requirement.
On appeal, the State argues the trial court erroneously failed to
analyze the case under the "reasonable suspicion" standard set forth
by the United States Supreme Court in Michigan v. Long, 463 U.S. 1032,
103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). The State further argues
that probable cause still existed, regardless of the applicability of
the Long holding, to justify the search under the automobile exception
because the information provided by the anonymous caller suggested the
tip came from a "concerned citizen" and the police corroborated the
information received. We disagree with the State's arguments and
affirm the order of suppression but for reasons that are materially
different than those expressed by the trial court. Isko v. Planning
Bd. of Livingston, 51 N.J. 162, 175 (1968),
abrogated on other grounds, Commercial Realty & Res. Corp. v. First
Atl. Properties Co., 122 N.J. 546, 585 (1991).
We gather the following facts from the evidence presented to the trial court in the evidentiary hearing conducted to adjudicate defendants' motion to suppress.
On April 1, 2008, Roselle Police Sergeant John Wyso received a call on his work cellular phone from an unidentified individual who told him two African-American men in a tan Suzuki SUV parked at a particular location*fn1 in Roselle were displaying a firearm to an individual or individuals standing outside of the vehicle. The caller also provided the first three characters of the SUV's license plate.
At approximately 7:00 p.m., Sergeant Wyso along with Officers Stacey Williams and Matthew Jackubowski responded to the address provided by the caller. Upon arriving, the officers observed an SUV matching the description given by the caller parked by the side of the road; two men were standing outside the vehicle and two other men were "inside, leaning toward the passenger side of the vehicle." Defendants were later identified as the individuals inside of the SUV.
The officers approached the SUV and requested the individuals standing outside the vehicle to step away and defendants to exit the vehicle. Defendants complied without incident and were not arrested or handcuffed at this time. The officers escorted defendants to the back of the vehicle and patted them down; no weapons or contraband were discovered on their persons. Sergeant Wyso then searched the vehicle's inner compartment and found in the glove-box a .380 caliber handgun loaded with hollow point ammunition. In addition to these core facts, Officer Williams testified that the street where the SUV was parked is in a "high-crime area" known as a "thoroughfare for the Crips [criminal gang]" where numerous shootings have taken place.
Defendants were arrested and subsequently charged and indicted with second-degree possession of a firearm, N.J.S.A. 2C:39-5(b), and fourth degree possession of a prohibited device, N.J.S.A. 2C:39-3(f). Based on their past criminal record, defendants were also separately charged under this indictment with second degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7.
The State argued before the trial court that probable cause existed to support the search of defendant's vehicle because the call providing the information about the vehicle was made to Sergeant Wyso's cell phone, so we can presume from that that ordinary citizens, you know, regular anonymous tips don't have access to a police officer's work cell phone. So from that information given, we can discern that it was a citizen, a concerned citizen informant who did phone Officer Wyso. Moreover, when that concerned citizen made the phone call to Sergeant Wyso's cell phone, he or she indicated that they observed those defendants showing a handgun outside of that very same vehicle. . . . That person gave information about the make, the color, the model of the vehicle, where the vehicle was located, where the vehicle was parked, and the first three letters of the vehicle's license plate, as well as two black males in the vehicle who were showing the gun to another individual on the street.
Because the tip came from "a citizen informant" the State was not obligated to establish the information provided was "reliable." Probable cause existed because the responding officers were able to confirm the vehicle's make and model with the description given by the caller. Moreover, relying on Michigan v. Long, supra, for the proposition that, incident to a Terry*fn2 pat-down search, a police officer may also search the passenger compartment of ...