On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-01-0085-E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2011
Before Judges A. A. Rodriguez and Fasciale.
After defendant's motion to suppress evidence was denied, defendant pleaded guilty to second-degree possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7. In exchange, the State agreed to recommend less than the maximum potential sentence and dismissal of all related charges. We affirm.
The following proofs were presented by the state at a hearing on the motion to suppress. At approximately 10:00 p.m. on October 9, 2007, three plainclothes detectives, Alexus Smith, Paul Petinga, and a third detective, were conducting surveillance in an unmarked patrol vehicle in an area known for high levels of drug trafficking. They observed a Toyota Camry with a driver and front seat passenger traveling with a disabled taillight. After the Camry swerved into the detectives' lane and nearly struck their vehicle, the detectives requested a marked patrol car to conduct a traffic stop. Atlantic City Police Officer Brennan responded, activated his lights and siren, and pulled the vehicle over. The detectives then pulled up behind Officer Brennan's patrol car.
The detectives observed defendant, who was in the front passenger seat wearing his seatbelt, slowly lean over "so far that his head [was] now almost touching an open glove box compartment." At the suppression hearing, Detective Smith testified that she could only see defendant's back and that he was "making some kind of movement with his upper body." She further testified: "[Defendant's] movements were very uncommon [and] there was no reason that the passenger should've been doing this. I found his movements very odd and they were very suspicious and heightened, you know, they really alerted my senses."
At that point, Detective Smith asked defendant to "sit up straight" and defendant "sat up very, very slowly." Detective Smith testified:
[Defendant's] body was positioned [so] he was sitting up very rigidly, but he was sitting to the side of the door, almost pressing and wedging his body against the door. And as he's doing this, he takes his [right] elbow and he puts his elbow very, very close to his body.
And as he was wedging his body, he takes his left hand and his left hand is tight around his waist and he's making stuffing motions in the area of his waistband and the seat and the door.
Detective Smith then asked defendant to stop the movement but defendant "did not immediately comply." She testified that he "modified the movement. He didn't make the movement so pronounced, but he still did it slightly and, again, he was asked to stop." After the second request, defendant responded, "Who me?" Detective Smith testified that "[e]ventually there was a compliance; he did eventually stop making the stuffing motions." However, defendant "still had his body wedged against the door, so you couldn't completely see the right side of his body."
Detective Smith testified that after she ordered defendant from the vehicle:
He opens the door and he just basically, with his body still wedged against the door of the car, he exits and he keeps his body in contact with the seat and the side of the seat and he basically rolls his body, almost bringing his left side across himself to exit the vehicle. When he exits the vehicle, part of his body is still shielded . . . by the door frame of the car. He stands up very slowly with . . . his right arm, still wedged against his waistband . .., still keeping his body kind of shielded with the opening of the door.
Detective Smith further testified that defendant was still not completely out of the vehicle and that she "thought his actions were to conceal something." She observed that after being asked to step away from the car, defendant's "hand[s] were loose as if he was trying to be casual . . ., but his upper arms and his elbows were wedged very tight against his body."
Detective Petinga began a pat-down search, and defendant admitted that he had a gun. Detective Petinga retrieved a defaced 9mm handgun from the right side ...