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State of New Jersey In the Interest of A.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 6, 2012

STATE OF NEW JERSEY IN THE INTEREST OF A.P., JUVENILE.

On appeal from the Superior Court, Chancery Division, Family Part, Union County, Docket No. FJ-20-0016-12.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 summarily rejected the State's argument that exigent circumstances were present which would permit a warrantless search of the interior of the car.

In reviewing an order disposing of a motion to suppress evidence, "[a] trial court's [factual] findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Elders, 192 N.J. 224, 244 (2007) (citation and internal quotation marks omitted). An appellate court need not, however, defer to the trial court's conclusions of law reached from established facts. State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," an appellate court need not defer to the court's legal determinations. Ibid.

Under the New Jersey and United States Constitutions, warrantless searches and seizures are presumptively invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). In the absence of a warrant, the State bears the burden of demonstrating that the search falls within one of the few defined exceptions to the warrant requirement. State v. Maryland, 167 N.J. 471, 482 (2001).

We first address the validity of the initial motor vehicle stop. A lawful motor vehicle stop must be based on a "reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." State v. Amelio, 197 N.J. 207, 211 (2008) (citation and internal quotation marks omitted). The State bears the burden of establishing by a preponderance of the evidence that it possessed sufficient information to give rise to a reasonable and articulable suspicion. Ibid.

Here, Officer Jones had sufficient suspicion of a motor vehicle violation to warrant a stop. The evidence clearly shows that Officer Jones observed the vehicle illegally parked,*fn1 and then fail to come to a complete stop at a stop sign.*fn2 He therefore had a reasonable and articulable suspicion that the driver of the vehicle committed two motor vehicle violations.

Having determined that the initial stop was proper, the next issue presented is the propriety of Officer Jones's order to the occupants to exit the vehicle. It is well established that an officer has an unqualified right during a stop to order the driver to exit the vehicle as a minimally intrusive safety precaution. State v. Arthur, 149 N.J. 1, 16 (1997).

A higher standard must be met, however, to support an officer's order that a passenger exit a vehicle. State v. Smith, 134 N.J. 599, 618 (1994). The officer need not show that a passenger is suspected to be "armed and dangerous." Ibid. "Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car." Ibid.

A.P. argues that State v. Lund, 119 N.J. 35 (1990), is controlling. In Lund, which was decided before Smith, the Supreme Court held that furtive gestures and nervousness by a motorist, without more, did not give rise to an articulable suspicion suggesting criminal activity. Id. at 47. The Court specifically noted, however, that such furtive movements, when combined with other circumstances, may provide sufficient basis for an order to exit the vehicle. Id. at 48.

An analysis of the totality of the circumstances surrounding the vehicle stop establishes that the police had sufficient basis to order the occupants out of the vehicle. The stop occurred late at night, and the officers were outnumbered four to three. The movements of the rear-seat passengers, together with the delayed response to show their hands, reasonably aroused the officers' suspicions and created a heightened awareness of danger. As explained by Officer Jones, he was concerned the rear-seat passengers were reaching for a weapon. Under these circumstances, the order for the passengers to exit the vehicle was objectively reasonable.

Once the passengers were lawfully ordered to exit the vehicle, Officer Perez observed the brown handle of a revolver sticking out of a bag on the rear passenger side floor of the car. At that point, the gun was lawfully seized pursuant to the plain view doctrine, because the officer was lawfully in the viewing area, the discovery of the gun was inadvertent, and it was immediately apparent to the officer that the item was contraband. See State v. Bruzzese, 94 N.J. 210, 236, (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984) (setting forth required elements of plain view exception).

Finally, a separate and independent basis is necessary to support the search of the interior of the car, which yielded the second gun. Smith, supra, 134 N.J. at 609. The State argues that the automobile exception provides such a basis. "(T)he warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." State v. PenaFlores, 198 N.J. 6, 28 (2009).

The first two elements of the test are clearly satisfied and require only limited discussion. First, the initial stop was clearly not planned or premeditated by the police, and was wholly unexpected. Second, probable cause was present following the discovery of the gun, the unsolicited statement of A.P. referring to "those" guns, and the discovery of a different caliber bullet on one of the occupants.

The third element, exigent circumstances, requires more discussion. The stop occurred late at night and in a busy commercial/residential neighborhood. While the occupants had been placed under arrest upon the discovery of the first gun, the strong prospect that the vehicle contained one or more additional guns became apparent in a matter of seconds with A.P.'s statement and the discovery of the .38 caliber bullet. At that point, the occupants were still in close proximity to the subject car and had just been placed under arrest. Thus, as one or more unsecured guns potentially remained in the car, the occupants were in a position where they presented a risk of danger to the officers. See State v. Esteves, 93 N.J. 498, 505 (1983) (noting "the significance of weapons when these are the object of the search or a concern relating to the safety of the police officers" (citing State v. Alston, 88 N.J. 211, 234 (1981))).

The above analysis of the totality of circumstances, particularly the time and possible presence of additional weapons, establishes that exigent circumstances were present, thus providing sufficient basis for the warrantless search of the interior of the vehicle.

Accordingly, we reverse and remand for further proceedings.


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