On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-10-2757.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2012
Before Judges Carchman, Baxter and Nugent.
By leave granted, the State appeals from a Law Division order granting the motion of defendants Ismauel Torres and Saul Rivera to suppress two guns seized from them without a search warrant.
Based solely on the report from a citizen that defendant Torres had just shot at him, the Camden police arrested defendant. When the police peered into the vehicle in which defendant was found, they saw a gun protruding from under the seat, and seized it, along with a second gun that was laying on the rear seat of the vehicle. The motion judge held that because the police failed to corroborate the citizen's accusation, the arrest of Torres was unlawful, and suppression of the guns was required as the fruit of the poisonous tree.*fn1
We disagree with the judge's conclusion that the victim's accusation against defendant was insufficient to establish probable cause to arrest. The victim had known defendant for several years and the victim repeated his accusation on four separate occasions. Because the arrest of defendant Torres was based on probable cause and was lawful, the warrantless seizure of the guns was not the fruit of the poisonous tree. Instead, the seizure was proper under the plain view exception to the warrant requirement. We reverse on the State's appeal. On defendant Rivera's cross-appeal, which challenged the judge's conclusion that the requirements of the plain view exception were satisfied, we affirm.
On the afternoon of March 3, 2010, Jesus Rodriguez called the 9-1-1 dispatcher of the Camden police department to report that he had been the victim of an attempted shooting at his home. Officer William Roberts was dispatched to respond to Rodriguez's call.
The officer met Rodriguez at his residence on North Seventh Street, where Rodriguez explained that, earlier in the day, he had quarreled with defendant Torres, whom he knew. As the argument ended, and Torres was leaving, Torres warned Rodriguez "he [would] be back." Rodriguez also told Officer Roberts that an hour after he left Torres, he, Rodriguez, was standing outside of his home when he noticed a red Dodge Caravan approaching. Aware that Torres drove a red Caravan, and concerned for his own safety, Rodriguez began to retreat into his home. According to Rodriguez, as the Caravan passed his home, Torres yelled something from the window and fired a single gunshot toward Rodriguez. The shot missed him.
Officer Roberts conducted a search of the home's exterior, but found no bullet or anything of evidential value. The officer then drove Rodriguez and his father, who was in the home at the time of the shooting, to police headquarters in order to obtain a sworn statement.
At the police station, Rodriguez spoke with Detective Moore. He described his fight with Torres, and for the third time that afternoon, reported that Torres fired a shot at him. Rodriguez confirmed that he knew Torres well, knew him by name, knew the car that he drove, and had been involved in "prior incidents" with Torres.
While speaking to the detective, Rodriguez received a telephone call from a friend, who informed him that Torres was sitting in a white Mercedes parked in front of a residence on Pierce Street in Camden. At that point, the officers were still in the "initial investigation" phase, as a sworn statement had not yet been obtained from Rodriguez or his father, and a formal complaint had not yet been issued. Based upon the information Rodriguez received from his friend concerning Torres's whereabouts, Detective Moore decided to halt the taking of the statement from Rodriguez and his father. Detective Moore proceeded to "assemble a group" of approximately six officers, and directed several marked and unmarked police units to proceed to the Pierce Street address. Detective Moore drove one of the unmarked vehicles, with Rodriguez and his father riding in the rear to potentially provide an identification.
Detective Moore drove past the parked Mercedes slowly so that "the victim could get a good look inside the vehicle." As they drove alongside the Mercedes, Rodriguez confirmed that Torres was sitting in the front passenger seat. Moore radioed the officers and reported that Rodriguez had made a positive identification of Torres. Moore directed the officers to "move in" and remove the occupants from the Mercedes. Two police vehicles were positioned in front and in the rear of the Mercedes to prevent the driver from pulling away.
The officers ordered the four occupants of the Mercedes to "put their hands up." Initially, Rivera, who was seated in the rear passenger seat, and Torres, did not comply. Both defendants were leaning forward, and "making movements with their hands," as if they were "hiding something under the car seats." According to Officer Roberts, the police were "concerned there was a gun inside the car" due to the hand movements they had observed and Rodriguez's report that Torres had fired at him earlier in the day. The officers ordered the four occupants out of the vehicle, handcuffed them, and secured them in the back of the police cars.
Officer Roberts approached the front passenger side of the Mercedes and looked inside. Because the defendants had just exited the vehicle, its doors were still open. Officer Roberts stood outside of the car, and peered into it while positioned in the door jamb. From that position, Roberts observed "the butt of a gun" "on the floor sticking out from under the [front passenger] seat," where Torres had been sitting.
Still outside the vehicle, Officer Roberts moved to the door jamb of the rear passenger side, and looked into the back of the car where Rivera had been seated. He observed a second handgun "obviously" laying "right in the middle of the back seat."
At that point, Officer Roberts reached into the car and seized both handguns. He later testified that he "saw the guns first, and then [he] entered the car" as he "wanted to make sure . . . the [weapons] were safe and secure." Roberts acknowledged during cross-examination that the occupants of the car had already been removed when he first saw the guns. That same night, the police impounded and towed the Mercedes and the red Caravan, which had been parked across the street from the Mercedes. Rodriguez and his father then returned to the police station to provide taped statements to police, after which the officers signed complaints against Torres and Rivera charging them with various weapons offenses.*fn2 Roberts acknowledged that prior to taking Torres into custody, the police had "no independent evidence" to corroborate the accusation made by Rodriguez. All he had "linking defendant to any criminality" was "the statement made by Mr. Rodriguez."
Torres was charged with: third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count one); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(9) (count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f)(1) (count five); third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count six); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count eight). Rivera was indicted on a single count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven).
Defendants Torres and Rivera moved to suppress the guns found in the Mercedes. At the conclusion of the hearing, the judge found the testimony of Officer Roberts and Detective Moore credible, but determined that they had conducted a warrantless arrest without probable cause. The judge reasoned that the "unsworn report by a known citizen informant" was insufficient, standing alone, to establish probable cause to arrest Torres. The judge also held that the officers were required to corroborate Rodriguez's report of an attempted shooting before probable cause could be established. The judge specifically rejected the State's assertion that Torres's red Caravan, which was parked across the street from the Mercedes, constituted corroboration. The judge found that the mere proximity of the Caravan to the Mercedes was insufficient to corroborate "an ...