On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-08-0667.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and J. N. Harris.
Defendant Thomas Boyd pled guilty to third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c), after his motion to suppress was denied. He appeals, arguing the following:
POINT I: THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE EVIDENCE BECAUSE THE COURT'S FINDINGS OF FACT WERE MISTAKEN, AS THE VIDEO ESTABLISHES THAT AT THE TIME THE OFFICER DECIDED TO STOP THE VEHICLE, THE LICENSE PLATE WAS NOT OBSTRUCTED AND THE OFFICER HAD NO OTHER BASIS FOR CONDUCTING A MOTOR VEHICLE STOP.
We affirm based upon our review of the record.
On June 23, 2009, shortly after midnight, Millville Police Officer Vernon Babka responded to a dispatch relating to a burglar alarm activation at a car dealership on Second Street. While enroute, Officer Babka passed a gray Ford pickup truck going in the opposite direction, noticing its distinctive blue light bar on the roof.
Officer Babka met two other police officers at the car dealership, and together they conducted a brief survey of the premises. They quickly determined that the premises were secure and had not been forcibly entered. While conversing with the others, Police Officer Babka saw the same Ford pickup truck enter the parking lot. As described by the police officer, "once it noticed that we were there it abruptly headed out of the parking lot quicker than it came in." At that time, Officer Babka also observed that the driver was a white male wearing a bandana.
Two to five minutes later, while Officer Babka waited in the neighborhood, the pickup truck reappeared near the closed businesses. Officer Babka began to follow the pickup truck because he found it suspicious that "[i]t was driving around numerous parking lots of businesses that were closed at that time." He then observed what he described as "[a] trailer hitch blocking the license plate, obstructing the view." It was later described as "a metal ball there in the middle of the plate." Officer Babka activated his overhead lights, which triggered a video recording of events, and initiated a motor vehicle stop of the pickup truck.
With the assistance of Sergeant Hagar and Police Officer Sataro, Officer Babka approached the driver of the pickup truck. Officer Babka testified to what happened next:
When I approached the vehicle I could see on the passenger side that there was a soft case for a rifle, and it appeared to be a butt stock because the case was unzipped, and I could see . . . it from that driver's side. And Sergeant Hagar yelled out the word, "Gun." He had seen the gun in the vehicle.
The police officers immediately drew their service weapons and ordered the two occupants to exit the vehicle. Boyd was the passenger; ...