On Appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-08-2244.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011
Before Judges Espinosa and Kennedy.
Defendant appeals from the denial of his motion to suppress evidence. We affirm.
The only witness at the suppression hearing was Officer Michael Scottbey of the Irvington Police Department. At approximately 3:30 a.m. on the morning of March 21, 2009, Scottbey and Officer Walter Williams were dispatched to the area of 25 Cummings Street in response to an anonymous tip that there were "two individuals in a white Honda Accord with a handgun." Scottbey described the area of 25 Cummings as a high-crime, residential area where he had made prior arrests for robbery and drug offenses.
Scottbey testified that it took them no more than a minute to get to the location. They proceeded north on Cummings Street with their headlights out to avoid detection. Scottbey observed a white vehicle that matched the description of the vehicle given in the tip in front of 25 Cummings Street. When the officers were approximately two vehicle lengths away from the white vehicle, the headlights were turned on and the police vehicle pulled in front of the white vehicle. Scottbey saw two occupants in the vehicle. Both officers exited their own vehicle with guns drawn and asked the occupants not to move. He stated the driver "was doing nothing." The passenger, defendant Allen Jordan, "just became real active, real frantic. . . . The closer we got to the vehicle, the more frantic and panicky he started to get." Scottbey explained what he meant by "panicky," stating, "he just started moving around the car, reaching - -like he was reaching for something or trying to put something away. You know, the whole time we were standing there, he did that until we reached the car." He ordered the occupants to show their hands and they complied. The officers ordered the two out of the car. Scottbey removed the driver, placed him on the ground and "handcuffed him for officer safety." There were no other members of the public on the street at the time.
Scottbey was positioned on the driver's side, outside the vehicle. He described what occurred next,
When I started looking inside his car with my flashlight, I'm scanning the car, looking around. The first time I came across the area, the only thing caught me was a gleam. When I put my flashlight back on the area, that's when I observed the gun in full.
Scottbey told everybody there was a gun in the back of the car. Officer Coates, who had arrived on the scene with another officer, retrieved the handgun, a Five Star .40 caliber semi-automatic handgun. In addition, six .40 caliber bullets and a semi-automatic magazine were recovered.
There was some inconsistency between Scottbey's testimony at the suppression hearing and his police report and grand jury testimony as to which officer discovered the handgun. Still, the motion judge found Scottbey's testimony "generally credible and reliable." He stated, In every respect I find that Officer Scottbey was confident, consistent, and unwavering in his testimony, not only on direct but, more importantly, on cross-examination.
I find that overall he displayed a good recollection of the facts, did not attempt to avoid answering, notwithstanding the apparent discrepancy or inconsistency, but rather answered questions directly without equivocation and in a non-argumentative fashion.
The motion judge summarized his findings of fact:
An anonymous caller provided specific details about the make and color of a car occupied by two black males, who possessed a handgun, and were present in such automobile while parked on a residential block without street lights at approximately 3:30 in the middle of the night or morning in front of 25 Cummings Street, which as ...