On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 08-11-2744 and 09-06-0219.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2012 -
Before Judges Parrillo and Skillman.
Defendant was indicted for possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b), and possession of a weapon by a convicted felon, in violation of N.J.S.A. 2C:39-7.
Defendant filed a motion to suppress the evidence upon which these charges were based, which the trial court denied. Defendant then pled guilty pursuant to a plea bargain to the charge of possession of a weapon by a convicted felon. The trial court sentenced defendant in accordance with that plea bargain to a five-year term of imprisonment without eligibility for parole.*fn1
Defendant appeals from the denial of his motion to suppress. That denial was based on the evidence presented at a three-day hearing, which can be briefly summarized.
The handgun that defendant pled guilty to unlawfully possessing was discovered in plain view in a car in which defendant was riding as a passenger. Two Atlantic City police officers observed the driver fail to stop at a stop sign around 1:30 a.m. on August 30, 2008 and then suddenly stop on a highway at a green light. Based on these observations, the officers pulled over the car for motor vehicle violations.
After the officers got out of their car and asked the driver for his driving credentials, one of the officers pointed his flashlight into the car and observed the butt of a handgun in the map compartment behind the passenger front seat. The officers then ordered the driver, defendant and other occupants to get out of the car and handcuffed them. In accordance with Atlantic City police department procedures, the officers who had made the motor vehicle stop called "forensic detectives" to come to the scene and remove the gun from the car. Those officers arrived about twenty minutes later, seized the gun, and brought it to police headquarters. Except for the entry into the car to seize the gun, no other search was made at that time.
Defendant presented testimony by the driver and other occupants of the car, who offered a significantly different version of the stop of the car and discovery of the handgun that defendant was found to have unlawfully possessed. However, the trial court found their testimony to be incredible and instead credited the testimony of the police officers who stopped the car and discovered the handgun in plain view.
The court determined that that stop was valid because it was based on an articulable, reasonable suspicion that the driver had committed motor vehicle violations. The court also found that one of the officers observed the handgun in plain view in the map compartment of the rear portion of the backrest of the front passenger seat. The court concluded that under these circumstances it was permissible for the police to seize the handgun without first obtaining a warrant. Accordingly, the court denied defendant's motion to suppress.
On appeal, defendant does not challenge the trial court's factual finding that the police officers observed the driver of the car in which defendant was riding commit apparent motor vehicle violations, which justified the stop. Defendant also does not challenge the court's finding that one of the officers observed what appeared to be the butt of a handgun in a compartment behind the passenger seat. In any event, we are satisfied those findings are fully supported by the evidence presented at the hearing on defendant's motion to suppress.
Defendant's sole argument is that the police were required to obtain a warrant before entering the car to seize the gun they had observed from outside the car in plain view. In support of this argument, defendant relies primarily upon State v. Pena-Flores, 198 N.J. 6, 11 (2009), in which the Court reaffirmed that the police may conduct "an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement." However, the police in this case did not conduct a search of the car in which defendant was riding.
Rather, they discovered the handgun upon which defendant's conviction was based by observing the gun in plain view while they were standing outside the car. Such an observation does not constitute a search. See State v. Foley, 219 N.J. Super. 210, 215-16 (App. Div. 1987). Therefore, the automobile exception to the ...