June 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN GAMBLE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2732.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2012
Before Judges Waugh and St. John.
Defendant Kevin Gamble appeals from his conviction, following a guilty plea, for unlawful possession of a weapon and resisting arrest. He challenges an order denying his motion to suppress a handgun seized from the console of the van in which he was sitting when his vehicle was approached by police in Irvington.
Following the denial of his motion to suppress, defendant pled guilty, and was sentenced to three-years imprisonment with a three-year period of parole ineligibility. The court also imposed requisite fines and penalties accordingly.
The issue on appeal is whether the plain view exception to a warrantless search applies. We conclude that no exception to the warrant requirement would permit the search of the van and the seizure of the handgun. We reverse.
Essex County Indictment No. 08-09-2732 charged defendant with second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count one); third-degree receiving stolen property (handgun) (count two), N.J.S.A. 2C:20-7; and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (count three).
The following facts were adduced from the evidentiary hearing on the motion to suppress. The only witnesses at the hearing were Irvington Police Officer Theodore Bryant on behalf of the State, and Janelle Johnson, defendant's fiancee, on his behalf.
At approximately 11:00 p.m. on May 3, 2008, Bryant and his partner, Officer Richard Santiago, responded to a dispatch of "shots fired" in the area of Chancellor and Union Avenues in Irvington. While patrolling the area, described as being a high crime neighborhood, the officers received another dispatch in response to an anonymous 9-1-1 call reporting "an individual inside a tan van who [was] seen with a gun in the lap inside the van." No testimony was offered concerning any information Bryant received about the sex, race, age or other physical identifiers of the individual in the van. The officers eventually spotted a tan van, and directed their spotlight on it to make the inside more clearly visible.
The officers exited their vehicle with their weapons drawn and approached the van, at which point Bryant "could see the occupants moving very frantically as if trying to hide something." Bryant ordered defendant and co-defendant Terrell Wright to exit the vehicle. Wright, who was sitting on the passenger side of the van, exited as instructed. Defendant began to exit and then retreated back to the driver's seat. Bryant, "fearing that [defendant] might be going for what might be a weapon,  struck [defendant and] pulled him out of the vehicle." Bryant did not handcuff defendant, but "patted him down for any weapons, and at that point he didn't have them on his person." Bryant then passed defendant off to a responding backup officer, Patrolman Iona McKensey.
Bryant testified that he then "began a search of the interior of the vehicle," and as he "entered the vehicle," he saw the handle of a handgun showing from the middle console. At that point, Bryant heard a commotion, turned around and saw defendant begin to flee from McKensey's custody. Bryant exited the van and subdued Gamble, who was then placed into a police vehicle. Bryant notified the other officers that there was a handgun inside the van. In addition to retrieving the handgun, police recovered shell casings at the scene.
On cross examination, Bryant testified that prior to approaching the van, he had no information concerning: the number of suspects inside; the license plate number, make, model or year of the van; or whether it had tinted windows. The only identifier for Bryant was that the vehicle was a tan van.
Johnson, the owner of the van, which she described as "greenish grayish," observed the incident. From her apartment window across the street, she saw police surround the van with their guns drawn. Johnson went outside and saw defendant laying on the ground. She stood on the other side of the street at a distance of approximately seventeen to twenty feet from the parked van. She observed a police officer inside the van "go straight towards the middle of the car[,] yank the console out[,]" and remove a handgun. She did not know where the handgun came from or "how it got inside."
After hearing the testimony, the judge denied defendant's motion to suppress the handgun seized from the van, finding that the State met its burden, "as it relates to the requirements under the warrantless search" because "the weapon was in plain view of the officer."
Defendant raises a single point for our consideration on appeal.
KEVIN GAMBLE'S MOTION TO SUPRESS EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE TRIAL COURT ERRED IN FINDING PLAIN VIEW AND BECAUSE NO OTHER EXCEPTIONS TO THE WARRANT REQUIREMENTS WOULD HAVE PERMITTED A WARRANTLESS SEARCH OF THE VAN.
A. THE COURT ERRED IN FINDING THAT THE GUN WAS IN PLAIN VIEW.
B. THE AUTOMOBILE EXCEPTION DOES NOT APPLY TO THE WARRANTLESS SEARCH OF KEVIN GAMBLE'S VAN BECAUSE THE SEARCH LACKED BOTH EXIGENCY AND PROBABLE CAUSE.
In our limited review of a determination of a motion to suppress evidence, State v. Handy, 206 N.J. 39, 44 (2011), we consider the trial court's underlying factual findings to which we defer, "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks and citations omitted). Such factual determinations will not be disturbed, even if an opportunity for independent review could lead to a different conclusion. State v. Johnson, 42 N.J. 146, 162 (1964). However, whether established facts warrant the grant or denial of a suppression motion is a legal question subject to de novo review. Handy, supra, 206 N.J. at 45. Moreover, a trial court's legal conclusions are not afforded the same deference. Ibid. "When a question of law is at stake," appellate review is plenary. State v. Mann, 203 N.J. 328, 337 (2010).
The United States and New Jersey Constitutions protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "Fourth Amendment issues are complex and are 'peculiarly dependent upon the facts involved.'" State v. Zapata, 297 N.J. Super. 160, 171 (App. Div. 1997) (quoting State v. Anderson, 198 N.J. Super. 340, 348 (App. Div.), certif. denied, 101 N.J. 283 (1985)), certif. denied, 156 N.J. 405 (1988). Constitutional protections prohibiting unreasonable searches and seizures "impose a standard of reasonableness on the exercise of discretion by government officials to protect persons against arbitrary invasions." State v. Maristany, 133 N.J. 299, 304 (1993).
"'Indeed the touchstone of the Fourth Amendment is reasonableness.'" State v. Crumb, 307 N.J. Super. 204, 245 (App. Div. 1997) (quoting State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)), certif. denied, 153 N.J. 219 (1998).
The test of reasonableness "is satisfied where the police obtain, upon a showing of probable cause, a search warrant from a neutral magistrate." Bruzzese, supra, 94 N.J. at 218. There are a number of judicially recognized exceptions to the warrant requirement. Ibid. Nonetheless, a warrantless search "that does not fall within one of the enumerated exceptions is presumptively unconstitutional." Ibid. "[T]he proper standard for determining the constitutionality of a warrantless search-and-seizure is whether the police officer's conduct was objectively reasonable and in conformity with recognized exceptions to the warrant requirement." Id. at 239.
It is the State's burden to prove that a warrantless search falls within one of the recognized exceptions to the warrant requirement. State v. Davila, 203 N.J. 97, 112 (2010); State v. Pena--Flores, 198 N.J. 6, 25 (2009). With respect to the "plain view" exception, the State must satisfy three criteria: (1) the officer must be lawfully in the viewing area; (2) the officer must discover the evidence inadvertently; and (3) the officer must immediately recognize that the items in plain view are contraband or evidence of a crime. Mann, supra, 203 N.J. at 341. The failure to meet any one of these criteria will preclude the State from invoking the plain view doctrine. Bruzzese, supra, 94 N.J. at 236.
There is no evidence in the record demonstrating Bryant viewed the handgun in the console prior to entering the van. On the contrary, Bryant's testimony confirms he was in the van conducting a search when he discovered the weapon. Absent any other exception to the warrant requirement or a constitutionally permissible reason for Bryant's entry into the van, the evidence must be suppressed.
The State argues the handgun was in plain view prior to Bryant's
entry. However, the State also contends that even if the handgun was
out of Bryant's view, the police conducted a valid investigatory stop,
"subdued [defendant,] and decided to conduct a protective search of
the van's passenger compartment," which is constitutionally permitted.
"[A]n investigatory stop, sometimes referred to as a Terry*fn1
stop, is valid 'if it is based on specific and articulable
facts which, taken together with
rational inferences from those facts, give rise to a reasonable
suspicion of criminal activity.'" State v. Pineiro, 181 N.J.
20 (2004) (quoting State v. Nishina, 175 N.J. 502, 510-11 (2003)). The
suspicion necessary to conduct a lawful Terry stop "need not rise to
the probable cause necessary to justify an arrest." Ibid. (internal
quotation marks and citation omitted). However, "[u]nless the totality
of the circumstances satisfies the reasonable and articulable
suspicion standard, the investigatory stop 'is an unlawful seizure,
and evidence discovered during the course of an unconstitutional
detention is subject to the exclusionary rule.'" Mann, supra, 203 N.J.
339 (quoting Elders, supra, 192 N.J. at 247).
A stop of a motor vehicle is lawful if based on a reasonable articulable suspicion that a criminal or quasi-criminal behavior has been or is being committed. State v. Carty, 170 N.J. 632, 639-40, modified by 174 N.J. 351 (2002). Reasonable suspicion of criminal or quasi-criminal behavior requires "'some minimal level of objective justification' for making the stop." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989) (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S. Ct. 1758, 1763, 80 L. Ed. 2d 247, 255 (1984)). Any determination of the existence of reasonable suspicion to support a stop is highly fact-sensitive, Nishina, supra, 175 N.J. at 511, and must be more than an officer's suspicion or hunch, Sokolow, supra, 490 U.S. at 7, 109 S. Ct. at 1585, 104 L. Ed. 2d at 10.
Bryant's articulable suspicion that criminal behavior had occurred was based on the dispatch of "shots fired," the late hour of the evening, the high crime nature of the area, and a report of "an individual inside a tan van . . . seen with a gun in the lap." As noted, Bryant offered no testimony in support of his knowledge of the identity or description of the individual or any description of the van other than its color. Although Bryant's suspicion or hunch yielded discovery of a handgun, reasonable suspicion to support a stop demands more.
Whether a police officer acted reasonably depends upon "'the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). "'[I]narticulate hunches'" and "subjective good faith" will not justify infringing a citizen's constitutional rights. Ibid. (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906).
The State argues that the search of the van was permissible for the officers' protection. In State v. Lund, 119 N.J. 35, 48 (1990), our Supreme Court adopted the position of the Supreme Court of the United States in Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), that police officers are expected to "possess objective cause before intruding into constitutionally-protected areas." Lund, supra, 119 N.J. at 43. The Lund Court also recognized that there are instances "in which 'furtive' movements or gestures by a motorist, accompanied by other circumstances, will ripen into a reasonable suspicion that the person may be armed and dangerous or probable cause to believe that the person possesses criminal contraband." Id. at 48.
Here, defendant's furtive movements as the officers approached were not accompanied by other circumstances, other than the report of an "individual inside a tan van" and defendant's attempt to re-enter, that would ripen into a reasonable suspicion that defendant may be armed and dangerous. Although police officer safety and that of the public is critical, the rational inferences to be drawn from two men sitting in a tan van does not translate into Bryant's reasonable belief that defendant was dangerous and that the vehicle might contain a weapon accessible to defendant or his passenger.
Our Supreme Court has made clear that a "warrantless search of an automobile" is permitted "where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." Pena-Flores, supra, 198 N.J. at 28. The criterion for a permitted search under Pena-Flores were not fully explored by the judge, presumably because of the State's reliance on the plain view exception. However, Bryant possessed insufficient information prior to the search to support probable cause*fn2 to believe defendant's van contained evidence of a crime.
In Lund, supra, 119 N.J. at 48 (1990), our Supreme Court stated, "the Michigan v. Long rule is sound and compelling precedent and should be followed to protect New Jersey's police community." Long and Pena-Flores address different and distinct constitutional scenarios and should be applied as the factual context dictates. The automobile exception in Pena-Flores, supra, speaks to circumstances where probable cause to believe that some form of contraband is present in the vehicle arises following an "unexpected" stop of the vehicle. 198 N.J. at 28. On the other hand, the exception set forth in Long, supra, arises when an officer is conducting a Terry stop and develops a "reasonable, articulable suspicion" that an individual might be dangerous, and that a weapon may be present in a vehicle that poses a danger to the officer and the public. 436 U.S. at 1049, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1220. Bryant offered no testimony concerning the basis for his reasonable suspicion, that defendant was dangerous or that the van contained a weapon, other than the dispatch call plus the furtive movements and defendant's re-entry into the van.
Reasonable suspicion is defined as "a particularized and objective basis for suspecting the person stopped of criminal activity." Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996) (internal citation and quotation marks omitted). "The principal components of a determination of reasonable suspicion . . . [are] the events which occurred leading up to the stop . . . and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion." Id. at 696, 116 S. Ct. at 1661-62, 134 L. Ed. 2d at 919. Reasonable suspicion is determined by examining "the totality of the circumstances -- the whole picture." United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981). In the context of a vehicle search executed under Long, one way that "the right to conduct a protective search" may arise is "directly from the basis for the investigatory stop." Lund, supra, 119 N.J. at 45.
We conclude that the State did not meet its burden of proof by a preponderance of the evidence that the investigatory stop and search of the van was reasonable under the circumstances. See Florida v. J.L., 529 U.S. 266, 268, 120 S. Ct. 1375, 1377, 146 L. Ed. 2d 254, 258 (2000) (holding an anonymous tip that a person is carrying a gun is, without more, insufficient to justify a police officer's stop and frisk of that person). New Jersey has refused to entertain a "firearm" or a "man with a gun exception" to the rule of individualized suspicion for a "stop and frisk," based on an anonymous tip. State v. Goree, 327 N.J. Super. 227, 245 (App. Div. 2000). See also State v. Richards, 351 N.J. Super. 289, 300 (App. Div. 2002).
The judge's finding that the weapon was in plain view prior to the search of the van is not supported by Bryant's testimony or any other evidence in the record. Additionally, the judge made no findings concerning Bryant's reasonable, articulable suspicion of defendant's criminal behavior justifying the stop. The record also does not support a finding that the officers had a reasonable, articulable suspicion that defendant might be dangerous and, specifically, that a weapon may be present in the van that poses a danger to the officers and the public.
Accordingly, the evidence seized from the van must be suppressed.