On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-12-1944.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2011 -
Before Judges Ashrafi and Fasciale.
After pleading guilty to an open indictment, defendant appeals from his convictions for two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); four counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and one count of fourth-degree possession of prohibited weapons and devices, N.J.S.A. 2C:39-3(f). He contends that the judge failed to suppress the weapons and imposed an excessive sentence. We disagree and affirm.
At approximately 11:15 p.m. the police received a call that a motorcycle and a tall pickup truck were drag racing in a residential area. Sergeant Mark Zambrzycki, who had been patrolling, observed a pickup truck driving towards his patrol car. Zambrzycki suspected that the truck might be involved in the incident, noticed that the truck did not have a front bumper, and determined that the Texas license plate was placed in the front windshield over some paper. He activated his overhead lights, pulled over the pickup, approached the cab, which had three occupants, and asked the driver for his license, registration, and insurance. The driver (defendant) initially produced military identification, but nothing else. Eventually, he handed his driver's license to Zambrzycki. Defendant did not possess any registration or insurance information.
Zambrzycki ran the license plate number and learned that the registration had been expired for nine months. Zambrzycki advised defendant that he received a report that a pickup and motorcycle were drag racing. Defendant and his two passengers denied any involvement with a motorcycle.
Meanwhile, Officer Kevin Connors, also in the area, observed another patrol car following the motorcycle driver. Connors joined that officer, pursued the driver, and pulled over the motorcycle. The motorcycle driver admitted to Connors that he and the people in the pickup truck "were together." Connors then left the motorcycle driver with the other officer and provided backup to Zambrzycki who was not far away.
When Connors arrived at the truck, he briefed Zambrzycki that the motorcycle driver stated he was with the people in the truck. Zambrzycki explained to Connors that the people in the truck denied any connection to the motorcycle driver. This inconsistent information raised the suspicion of the officers.
Connors learned initially that the truck had been registered to a car dealership in Texas. Connors informed Zambrzycki that he wanted to obtain the Vehicle Identification Number (VIN number) of the truck to determine whether it had been stolen. Connors walked "over with my flashlight to the front of the windshield of the [truck] to light up the VIN number"; however, the number was blocked by a piece of paper and the license plate resting on the windshield. Connors was unable to reach into the truck safely to move the paper and plate. As a result, Connors asked defendant to exit the truck.
As defendant exited the pickup, Connors observed a black handle with a chrome end protruding from the dashboard. He grabbed the handle and steering wheel to pull himself up into the tall truck to see the VIN number. The handle moved and Connors discovered inadvertently that it was a bayonet. For his safety, Connors ordered the two passengers to exit the vehicle. Connors then walked around to the passenger side of the truck and noticed in plain view a semiautomatic magazine pouch on the passenger side floor and a handgun sticking out from under the passenger's seat.
The police then patted down defendant and discovered that he was wearing a .45-caliber semiautomatic gun holster. Connors located a second gun in plain view sticking out from the front seat. One of the guns was fully loaded. The police then arrested defendant and his passengers. In securing the truck, because of the obvious danger involving three suspects in a dark residential area, the police located knives, a throwing ax, a bat, an empty gun case, an ammunition box, gun clips and magazines, and "a homemade smoking pipe made of a shell casing."
The judge conducted a four-day hearing on defendant's motion to suppress. Three officers testified and defendant produced William McElarney, an expert familiar with the location of VIN numbers on pickup trucks. The judge determined that the vehicle stop was valid, and that Connors had properly investigated the VIN number and recovered the bayonet, semiautomatic magazine, and handguns pursuant to the plain view exception to the warrant requirement. The judge stated:
This was a residential area, late at night. A residential area, where people are in homes sleeping. The finding of guns, the finding of cartridges, clearly indicates there was, in fact, danger. And, in fact, the [truck] had to be secured.
As a result, the judge denied defendant's motion to suppress and concluded that exigent circumstances existed justifying the recovery of the remaining items pursuant to the ...