On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-09-2519.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Ashrafi.
Following a guilty plea, defendant Raul Vargas appeals the denial of his motion to suppress two handguns seized without a warrant from a car. See R. 3:5-7(d). We affirm.
Defendant and three others were indicted on four second-degree charges: (count one) possession of a .357 Magnum Smith and Wesson revolver without a permit, N.J.S.A. 2C:39-5b; (count two) possession of the same handgun with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a; (count three) possession of a .9 millimeter [Taurus] handgun without a permit, N.J.S.A. 2C:39-5b; and (count four) possession of the same .9 millimeter handgun with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a. Defendant moved jointly with the co-defendants to suppress the handguns on the ground that the police had violated their constitutional rights by a warrantless search of the automobile they had occupied. The trial court held a suppression hearing at which Officer Luis Oliveira of the Newark Police Department and one of the co-defendants, Fabian Frater, were the only witnesses.
Officer Oliveira testified that he and his partner, Officer Richard Pisano, were on patrol in Newark on the night of July 15, 2009. They received a radio dispatch to be on the lookout for a burgundy Dodge Intrepid with four male occupants in the area of Jay Street and Sussex Avenue. According to the police department's "Event Chronology" that was admitted in evidence, the police dispatcher had received an anonymous tip from a female caller who reported that four men in the described car were seen changing from lighter T-shirts into dark clothing.
Immediately after receiving the dispatch, the two officers drove to the area of Jay Street and Sussex Avenue at about 11:40 p.m., and they saw a burgundy Dodge Intrepid parked there with four men inside.*fn1 They parked their police car next to the Intrepid and the officers approached the suspect vehicle on different sides. The officers ordered the occupants to show their hands by placing them up and in front; the men complied. Officer Oliveira testified that three of the men were wearing gloves, and he also observed that the three had stockings on top of their heads. Officer Pisano ordered defendant Vargas out of the car from the driver's seat. He questioned Vargas briefly and then placed him in the back seat of the patrol car.
From the passenger side of the car, Officer Oliveira used his flashlight to look into the interior, and he saw what appeared to be the handle of a gun on the back seat between the two occupants there. He gave a coded verbal signal to Officer Pisano that he had seen a weapon in the car, and he ordered one of the back seat occupants, Erasmo Jimenez, out of the car. Officer Pisano handcuffed Jimenez and placed him sitting at the curb. Officer Oliveira reached into the car and retrieved a .9 millimeter Taurus handgun from the back seat. As he did so, he felt that the back seat was loose. He lifted the right side of the rear seat and saw a second handgun, a .357 Magnum Smith and Wesson revolver, which he seized. Both guns were loaded.
Co-defendant Frater testified that he had accompanied defendant Vargas to give Jimenez a ride. Later, the fourth defendant joined them in the car. At that point, two police cars blocked their car, and four officers approached with weapons drawn. All four men were removed from the Dodge Intrepid, handcuffed, and placed seated at the curb. The police then conducted a lengthy search of the car, "tearing it apart," and also searching the trunk. Frater testified that he had no knowledge of a gun in the car and also that he and the others were not wearing gloves or stockings.
In her ruling, the trial judge indicated that she credited aspects of the testimony of both witnesses. Ultimately, she found that Officer Oliveira testified credibly that he observed the butt of a handgun on the back seat from outside the car.
The judge concluded that the observation of a gun in plain view provided probable cause under exigent circumstances for the police to conduct a warrantless search of the car for weapons. The judge denied defendants' motion to suppress the guns.
Subsequently, defendant Vargas entered into a plea agreement with the State and pleaded guilty to counts one and three of the indictment, the charges of unlawful possession of the two handguns without permits. He was sentenced in accordance with the plea agreement to ...