On appeal from the Superior Court, Chancery Division, Family Part, Union County, Docket No. FJ-20-0016-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2012
Before Judges Parrillo and Hoffman.
By leave granted, the State appeals from an August 11, 2011 Law Division order suppressing evidence, two handguns, seized during a warrantless search of an automobile following a motor vehicle stop. A.P., a seventeen-year-old male, was a passenger in the vehicle at the time of the stop, and was charged with second-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(b), in a juvenile delinquency complaint. The State argues there was sufficient basis to first stop and then search the automobile. We agree, and reverse.
According to the State's proofs, on July 3, 2011, between 11:00 p.m. and 12:00 a.m., Linden Police Officer Matthew Jones observed a Honda Civic parked with its headlights illuminated and engine running on McGillvary Place near its T-intersection with Edgar Road, also known as U.S. Route 1. There were four occupants in the vehicle including A.P., who was in the left rear seat. The vehicle was parked approximately thirty feet from the intersection in an area where parking is prohibited. Officer Jones was parked in a parking lot on Edgar Road directly across from the intersection.
After observing the vehicle impede the passage of at least two cars, Officer Jones drove his patrol car onto the highway with the intention of issuing a citation for illegal parking. Before he reached the vehicle, however, it drove off and made a right turn onto Edgar Road. Because the vehicle was on a highway, the officer did not stop the car at that point, for his own safety.
Two blocks later, the vehicle made a left turn onto a side street, Bachellor Avenue. The officer did not stop the vehicle at that point because doing so would have impeded traffic. One block later, at the next intersection, the officer observed the vehicle "roll through a stop sign" at Bachellor and Urbanowitz Avenues. Officer Jones then turned on his overhead lights, stopped the vehicle, and called in the stop. Two other Linden Police Officers, Perez and Bachmann, arrived within seconds.
As Officer Jones exited his own patrol car and approached the vehicle, he saw the two rear-seat passengers unbuckle their seatbelts, glance at the officer "a couple of times," and reach down to the floor of the vehicle. Upon making this observation, Officer Jones, concerned that the occupants might be reaching for a weapon, approached the vehicle and ordered everyone to show their hands. The two front-seat occupants immediately did so, but the rear-seat passengers ignored the order and remained in a hunched position with their hands at their feet for five to ten seconds. Officer Jones repeated the order several times before the passengers complied. He then ordered everyone to get out of the car.
A.P. accompanied Officer Jones to the police cruiser behind the vehicle. After removing the passenger side rear-seat passenger, Tyshawn Johnson, Officer Perez observed the brown handle of a .44 caliber handgun sticking out of a bag on the floor behind the front passenger seat. Officer Perez removed the handgun and told the other officers to place everyone under arrest. Officer Perez testified that while he was clearing the handgun, A.P. said to him, "I don't know anything about those."
Officer Bachmann then searched Johnson, and found a single .38 caliber bullet on his person. Given that the bullet was a different caliber than the .44 caliber handgun removed by Officer Perez, coupled with use of the plural "those" in A.P.'s statement, the officers believed there was probably one or more additional guns in the vehicle. Officer Bachmann then returned to the vehicle and pulled out a shirt from the floor behind the driver's seat. The shirt concealed a .38 caliber handgun.
A.P. filed a motion to suppress evidence of the two handguns, challenging the validity of the initial motor vehicle stop. In the alternative, A.P. argued that sufficient cause did not exist to order the passengers out of the vehicle, and that all evidence resulting from the search must be suppressed as fruit of a poisonous tree. At the suppression hearing, the State presented testimony from Officers Jones and Perez.
In its oral ruling granting A.P.'s motion, the court found that Officer Jones's observation of the vehicle rolling through a stop sign "does not give rise to a reasonable suspicion of criminal activity," and the stop was therefore unlawful. The court also concluded that there was no basis to order the rear- seat passengers out of the car. The court further concluded that the plain view exception to the warrant requirement was not applicable because the discovery of the two handguns did not occur until after the rear-seat passengers were ordered out of the car. Finally, the court ...