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State of New Jersey v. David M. Gibson

May 8, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID M. GIBSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 08-03-0299 and 08-08-0882.

The opinion of the court was delivered by: Fisher, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted April 17, 2012 -

Before Judges Fisher, Nugent and Carchman.

The opinion of the court was delivered by FISHER, P.J.A.D.

In this appeal, defendant argues, among other things, that the trial judge erred in denying his motion to suppress evidence seized from him following his arrest for defiant trespass. This argument centers on whether, by the time of the search, the arresting officer possessed probable cause that defendant had engaged in a defiant trespass -- an issue that requires our consideration of whether it mattered that the owner of the property had posted a "no loitering" instead of a "no trespassing" sign. We reject this and defendant's other arguments and affirm.

In indictments returned in 2008 and 2009, defendant was charged with various drug offenses. With regard to the 2008 indictment, defendant moved for the suppression of evidence seized from him at the police station following his arrest for defiant trespass. After conducting an evidentiary hearing, the trial judge denied defendant's motion for reasons expressed in an oral opinion. Defendant later, with regard to the 2008 indictment, pleaded guilty to third-degree possession of a controlled dangerous substance (CDS) with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and, with regard to the 2009 indictment, pleaded guilty to third-degree CDS possession with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. The trial judge imposed concurrent eight-year terms, subject to four-year parole ineligibility periods, on these convictions.

In this appeal, defendant argues:

I. OFFICER COMEGNO DID NOT HAVE REASONABLE SUSPICION TO STOP, LET ALONE PROBABLE CAUSE TO ARREST, GIBSON FOR DEFIANT TRESSPASS BECAUSE, CONTRARY TO THE SPECIFIC REQUIREMENTS OF N.J.S.A. 2C:18-3b(2), THE OMEGA COMMUNITY CENTER DID NOT HAVE A POSTING NOTIFYING GIBSON AGAINST TRESPASS. EVEN IF THERE HAD BEEN NOTICE AGAINST TRESSPASS, THE TOTALITY OF THE CIRCUMSTANCES DID NOT GIVE RISE TO A WELL-GROUNDED SUSPICION THAT GIBSON WAS THE TYPE OF "UNWANTED" PERSON THAT THE OMEGA HOUSE PRESIDENT HAD AN INTEREST IN REMOVING.

A. Comegno Did Not Have Reasonable Suspicion To Stop Gibson, Let Alone Probable Cause For a Full Custodial Arrest.

B. Even If Notice Against Trespass Had Existed, The Totality Of The Circumstances Did Not Furnish Comegno With Probable Cause To Believe That Gibson Committed Defiant Trespass.

II. EVEN IF THERE HAD BEEN PROBABLE CAUSE FOR GIBSON'S ARREST, THE SECOND, MORE INTRUSIVE SEARCH THAT OCCURRED AT THE STATION HOUSE, DURING WHICH THE DRUGS WERE FOUND, WAS UNCONSTITUTIONAL BECAUSE GIBSON HAD NOT BEEN GIVEN AN OPPORTUNITY TO POST BAIL. THEREFORE, THE TRIAL COURT ERRED IN DENYING GIBSON'S MOTION TO SUPPRESS.

III. IN THE EVENT THAT THIS COURT REVERSES THE DENIAL OF GIBSON'S MOTION TO SUPPRESS [WITH REGARD TO THE 2008 INDICTMENT], GIBSON REQUESTS THAT THE MATTER BE REMANDED FOR THE JUDGE TO RECONSIDER THE ...


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