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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...