December 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NELSON LEE JACKSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 08-09-0792.
FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2012 -
Before Judges Fuentes and Ashrafi.
Defendant Nelson Jackson appeals from his conviction by a jury on a single-count indictment charging second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and his sentence of six years imprisonment. We affirm.
Defendant makes the following arguments on appeal:
THE MOTION TO SUPRESS SHOULD HAVE BEEN GRANTED.
A. THE POLICE LACKED A REASONABLE SUSPICION TO STOP THE WHITE CADILLAC.
B. THE CLAIM OF THE POLICE THAT A STOP OF THE CADILLAC WAS JUSTIFIED BY THE FACT THE TAIL LIGHTS WERE NOT WORKING SHOULD HAVE BEEN REJECTED IN LIGHT OF THE TESTIMONY THAT THE AUTOMOBILE HAD BEEN RENTED ONLY TWO DAYS PRIOR TO THE STOP.
C. THE POLICE COULD NOT USE THE DOCTRINE OF PLAIN VIEW AS A PRETEXT FOR SEARCHING UNDER THE HOOD OF THE CADILLAC WITHOUT A WARRANT.
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).
THE COURT'S INSTRUCTION TO THE JURY AS TO HOW TO CONSIDER MR. JACKSON'S PRIOR CONVICTIONS WAS FLAWED, ERRONEOUS, CONFUSING, AND MISLEADING (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE STATE TO USE THREE PRIOR CONVICTIONS WHICH WERE MORE THAN TEN YEARS OLD.
THE SENTENCE IMPOSED WAS EXCESSIVE.
Only the first of these points warrants substantial analysis.
The charge against defendant arose from an anonymous telephone tip to the police that resulted in police surveillance of defendant, a "high risk felony stop" of the car he was driving with two teenaged passengers, and the discovery of a handgun concealed under the hood of the car. After indictment, defendant moved to suppress the gun as the product of an unconstitutional seizure of him and his car and warrantless search of the car. The trial court held a suppression hearing at which two police officers and defendant testified. The court then issued a written decision and order denying defendant's motion to suppress.
We have reviewed the transcript of the suppression hearing and conclude that substantial credible evidence supports the trial court's findings of fact. See State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243 (2007) ("[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.") (internal quotation marks omitted). We recount here the trial court's statement of the relevant facts.*fn1
From the testimony of Glassboro Police Detective Michael Powell, Glassboro Police Officer Rick Watt and the defendant, the Court finds that the facts are as set forth herein.
On June 25, 2008, Detective Powell received a call from Officer Redrow that an anonymous female had called the Gloucester County Communications and said that she had approached a white Cadillac and asked the driver for a cigarette. She saw on the floor beneath the driver's feet, a black handgun. The caller was never identified.
The caller stated that the driver was a shorter black male and the other was taller. The driver was wearing a red or blue hat with a white shirt and jeans. The other had a white shirt and jeans. The caller said that the white Cadillac was located at Bentley Woods Apartments and was next to a brown van and was next to and facing Elsmere Park.
Powell drove past the area in an unmarked car (he was in civilian clothes) and saw a white Cadillac next to a brown van facing Elsmere Park. Powell testified that the apartment complex where this was located is a high crime area where there have been numerous weapons offenses, homicides, shootings and the like. The prosecutor has deemed it a "Quality of Life Zone." Powell saw two black males in the vehicle and they looked ready to leave. He took a spot nearby, out of sight, and surveilled the scene for a period of time.
Powell observed activity near and with the vehicle. One person was looking at the grill area and the hood was opened. The other male was at the back of the car. The hood was shut and then lifted again. Powell identified the defendant as the person opening the hood. He observed the scene for an hour or so and drove by the car and saw the defendant kneeling down by the bumper near the grill area.
Eventually the vehicle started moving and Powell radioed Patrolman Watt and told him that the vehicle was leaving at a high rate of speed and that he should stop the vehicle if he could. Watt got behind the car and noticed that there were no rear running lights on the vehicle. These are lights that should be on when the lights are on, not brake lights. It was 10 p.m. at that time and dark. There were two males in the front of the vehicle. He followed the vehicle and stopped it on the ramp to Route 55 off of Ellis Street.
The stop was considered "high risk" due to the weapon report and other police cars were there and blocked the entrance to Route 55. The vehicle made a sudden and abrupt stop and the driver's door was flung open as the vehicle was stopping causing Watt to believe that someone would flee from the car. The driver did get partly out of the vehicle, but was screamed at and returned to the car. The defendant was the driver and the occupants were ordered out of the vehicle and were cooperative. They were all secured and not a danger of interfering. There were three occupants.
There was a warrant for the defendant from Washington Township . . . and he was placed under arrest. Tickets were given to the driver relating to maintenance of lamps . . . . There were at least 4 vehicles, with one officer in each, involved in the stop and 3 canine officers who were training in the area.
When Powell arrived he approached the grill area of the vehicle and noticed the hood latch was not completely shut. He bent down and saw an orange glow coming from the grill. When he saw this, from his experience he knew it was a dot from a handgun. The photo is S-2 in evidence. He could see the handgun and lifted the hood, took pictures and took the handgun. It was in the firing position, meaning the safety was off. That was why the orange dot was present. The firearm was a .40 caliber handgun.
There was one round in the chamber and others in the magazine.
Powell testified that he surveilled the situation to see if there was any truth to the anonymous tip. He also then wanted to get the vehicle to a safer location since its location in Bentley Woods was in a high crime area and there were children there. The testimony revealed that the stop was on the ramp to Route 55 and there were no houses around or other people. Powell testified that the vehicle was going to be towed and he was concerned that the firearm might be lost or taken and possibly be with the public if not taken then.
The defendant testified that he had gone shopping, but was not driving, in the family's green minivan. His wife drove the white Cadillac to get gas with [defendant's brother-in-law, who was a juvenile]. [The juvenile] had been under the hood before. The defendant also indicated that the tail lights were working fine when the car was rented. He was present then and it was rented June 23rd. It was tested and the lights worked.
To these findings we add only that Detective Powell testified he may have used a flashlight when he bent down in front of the Cadillac and saw an orange glow that he recognized as an indication of a concealed handgun. Since the motor vehicle stop occurred after 10:00 p.m., the detective's use of a flashlight seems probable.
With respect to credibility findings, the trial judge only stated explicitly that he credited the testimony of Officer Watt that the Cadillac's running tail lights were not working, but a general determination of the officers' credibility is implicit in the findings of fact we have recited. See State v. Hodgson, 44 N.J. 151, 163 (1965). Our own review of the record has not revealed any inherently incredible testimony by the officers. Neither police officer was evasive or reluctant to answer questions that might have elicited unfavorable responses, and neither attempted to embellish his testimony beyond the information he actually knew at the time of the incident. Also, defendant's testimony did not bring to light major differences with the officers' account, except he claimed that the car was rented two days earlier and he assumed its tail lights would have been examined and working at that time.
We reject defendant's argument in Point I.B that the trial judge erred in crediting the testimony of the officers, in particular, Officer Watt's testimony about the Cadillac's tail lights. Since Officer Watt admitted candidly that the motor vehicle stop was conducted as a "high risk felony stop" with several patrol cars and officers, weapons drawn, and immediate removal and handcuffing of the occupants, his testimony about the tail lights was unlikely to have been fabricated merely to provide an excuse for stopping the vehicle. Moreover, as we have stated, his testimony was otherwise credible, and the judge specifically accepted his testimony about the tail lights. We defer to that finding of the trial judge, who personally heard and saw the officer testify and had a better "feel" for his veracity than we can have. State v. Locurto, 157 N.J. 463, 471 (1999).
An automobile stop by the police constitutes a seizure within the meaning of the Fourth Amendment and of Article I, Paragraph 7 of the New Jersey Constitution. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979); State v. Sloane, 193 N.J. 423, 430 (2008); State v. Dickey, 152 N.J. 468, 475 (1998). When such a seizure occurs without a warrant and evidence is seized, the State must prove that the police did not violate the defendant's constitutional rights. State v. Maryland, 167 N.J. 471, 489 (2001).
We consider five specific contentions of defendant regarding the constitutionally of the search and seizure in this case: (1) that the motor vehicle stop was not supported by articulable, reasonable suspicion of criminal activity or of a motor vehicle violation; (2) that, even if the police had a reasonable ground for stopping the car for non-functioning tail lights, the scope of police conduct in effecting the stop was unreasonable and a violation of defendant's constitutional rights; (3) that the handgun concealed under the hood was not "in plain view" when Detective Powell bent down and saw the orange glow; (4) that the police lacked probable cause to conduct a search under the hood and to seize the gun; and (5) that exigent circumstances did not justify a warrantless search under the hood of the car.
"As a seizure, a traffic stop is lawful if it is reasonable. That requirement may be met 'where the police have probable cause to believe that a traffic violation has occurred.'" Sloane, supra, 193 N.J. at 432 (quoting Dickey, supra, 152 N.J. at 475). Here, the trial judge credited the testimony of Officer Watt that the tail lights of the Cadillac were not lit as the car proceeded on the road at night. Therefore, the police had probable cause to stop the car, at least for a motor vehicle violation. See N.J.S.A. 39:3-61a (requirement of tail lamps).
The United States Supreme Court has compared a traffic stop to a temporary detention of a person for purposes of investigation in accordance with Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In that context, the Court stated: "[The] stop and inquiry must be reasonably related in scope to the justification for their initiation." Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334 (1984) (alteration in original) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607, 617 (1975)) (internal quotation marks omitted).
Thus, a stop for a motor vehicle offense is expected to be "temporary and brief," used only for the purpose of checking the driver's credentials and issuing a motor vehicle citation before releasing the driver "to continue on his way." Id. at 437, 104 S. Ct. at 3149, 82 L. Ed. 2d at 333; see also United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605, 615-16 (1985) (the police must act diligently during investigatory stops and not detain motorists for an unreasonable length of time); Dickey, supra, 152 N.J. at 477 (same).
Here, if the non-functioning tail lights were the sole justification for stopping defendant's vehicle, the police would not have sufficient reason to handcuff him and his passengers and to place them in patrol cars while they investigated the tip about a gun. See State v. Pierce, 136 N.J. 184, 213 (1994) (motor vehicle stop for routine, minor traffic offense does not justify arrest and search of vehicle as incident to arrest). Nor would as many as five police vehicles and seven or eight officers have been needed with weapons drawn.
The State contended the scope of the police conduct was justified because of police suspicion that defendant was in possession of an illegal firearm. See id. at 205; State v. Lund, 119 N.J. 35, 48 (1990) (adopting for purposes of State constitutional law the holding of Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3481, 77 L. Ed. 2d 1201, 1220 (1983), that the police may conduct a weapons search of the interior of a car when they have a reasonable belief that the motorist is potentially dangerous.) Officer Watt testified that the motor vehicle stop was conducted as a "high risk felony stop" because the police were concerned with the possible use of a firearm against them. Therefore, the question is whether the police justified their conduct and the scope and nature of defendant's detention by the information they had received about a gun in the car.
The police may stop a motor vehicle and detain its occupants temporarily while they investigate a criminal offense. See, e.g., United States v. Hensley, 469 U.S. 221, 226, 105 S. Ct. 675, 679, 83 L. Ed. 2d 604, 610 (1985); Prouse, supra, 440 U.S. at 663, 99 S. Ct. at 1401, 59 L. Ed. 2d at 673; Brignoni-Ponce, supra, 422 U.S. at 881-82, 95 S. Ct. at 2580, 45 L. Ed. 2d at 616-17. Such investigatory detentions do not require probable cause because they are "minimally intrusive" restraints on the person's freedom. Dickey, supra, 152 N.J. at 478.
However, to subject a person to investigatory detention, the police must have reasonable, articulable suspicion of conduct that violates the law. Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906; Hensley, supra, 469 U.S. at 229, 105 S. Ct. at 680, 83 L. Ed. 2d at 612; Elders, supra, 192 N.J. at 247; State v. Pineiro, 181 N.J. 13, 21-22 (2004). Reasonable, articulable suspicion requires less evidence of criminal conduct than probable cause to arrest and charge a person. Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990); State v. Rodriguez, 172 N.J. 117, 127 (2002); State v. Stovall, 170 N.J. 346, 356 (2002). A showing of probable cause requires "a 'well-grounded' suspicion that a crime has been or is being committed," State v. Johnson, 171 N.J. 192, 214 (2002) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)), but to show reasonable suspicion, the police need only have "a particularized and objective basis for suspecting the person stopped of criminal activity," Stovall, supra, 170 N.J. at 356 (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)) (internal quotation marks omitted). In other words, the State need not show an actual violation of law to justify a motor vehicle stop. It is sufficient for the State to prove reasonable suspicion that a violation has occurred. State v. Williamson, 138 N.J. 302, 304 (1994).
Here, the police had reasonable suspicion that one or more occupants of the Cadillac were in possession of a concealed firearm in violation of the law. They had a tip from an anonymous caller that she had personally observed a handgun at the feet of the driver of the Cadillac, and Detective Powell had corroborated specific details of the tip by personal observation of the Cadillac and defendant's appearance and conduct.
"An anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." Rodriguez, supra, 172 N.J. at 127. But "[i]n some circumstances an informant's tip may assist the court in evaluating whether the police officer had reasonable suspicion to stop a person" driving a motor vehicle. State v. Amelio, 197 N.J. 207, 212 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). An anonymous tipster's "veracity," "reliability," and "basis of knowledge" are "relevant in determining the value of his report." White, supra, 496 U.S. at 328, 110 S. Ct. at 2415, 110 L. Ed. 2d at 308 (quoting Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 543 (1983)). "The police . . . must verify that the tip is reliable by some independent corroborative effort." Rodriguez, supra, 172 N.J. at 127. Whether the police corroboration suffices to justify police intrusion upon a suspect's constitutional rights "turns ultimately on the totality of the circumstances." Id. at 128 (citing White, supra, 496 U.S. at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309).
In assessing the credibility of a tip: the court must decide whether the tip reveals "expressly or clearly" how the informant became aware of the alleged criminal activity. . . . [and whether] "the nature and details revealed in the tip . . . imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source." . . . [T]he information will be deemed to have come from a trustworthy source if the informant provides "sufficient detail in the tip or recount[s] information that could not otherwise be attributed to circulating rumors or easily gleaned by a casual observer." [State v. Keyes, 184 N.J. 541, 555-56 (2005) (quoting State v. Smith, 155 N.J. 83, 94-95 (1998)).]
In this case, although the caller did not identify herself, she gave detailed information about her source of knowledge, the nature of her contact with defendant, the location and description of the car defendant was driving, the location and description of the gun, a general description of defendant's physical appearance and his clothing, and a general description of another occupant of the car and his clothing. Detective Powell then personally corroborated much of this information by driving past the Cadillac and observing it and its occupants for a period of about one hour. He observed activity around the car, in particular, defendant's approaching the front of the car and "fiddling" around the hood and grill area, that supported a suspicion that something like a gun may have been concealed in that area of the car. Cf. State v. Citarella, 154 N.J. 272, 280-81 (1998) (although conduct may have an innocent explanation, it may also support suspicion of criminal activity). Furthermore, the Cadillac was parked in a high-crime area with a history of drug trafficking, violent crime, and weapons offenses. The high-crime rate in a neighborhood may be considered as one factor in the totality of circumstances establishing reasonable suspicion to detain and investigate a suspect. Piniero, supra, 181 N.J. at 26-27; Johnson, supra, 171 N.J. at 217.
The information Detective Powell gathered was more detailed than the information the police were relying upon in those cases where an anonymous tip was deemed insufficient to justify detention, questioning, or search of the suspects. See, e.g., Florida v. J.L., 529 U.S. 266, 268, 120 S. Ct. 1375, 1377, 146 L. Ed. 2d 254, 258-59 (2000); Rodriguez, supra, 172 N.J. at 121-22, 131; State v. Matthews, 398 N.J. Super. 551, 560-61 (App. Div.), certif. denied, 196 N.J. 344 (2008), cert. denied, 555 U.S. 1159, 129 S. Ct. 1037, 173 L. Ed. 2d 480 (2009). Furthermore, because Detective Powell suspected the possession of an illegal handgun in a high-crime area, a brief and limited intrusion upon defendant's privacy was warranted to protect the safety of the community and the officers. See State v. Privott, 203 N.J. 16, 29-30 (2010).
We conclude that the police had reasonable suspicion to stop the Cadillac and to detain the occupants for the purpose of determining whether an illegal handgun was in the car.
In addition, the manner of conducting the stop and detention of the occupants was justified by the potential risk of harm to the officers if a handgun was being illegally carried in the car. Long, supra, 463 U.S. at 1049, 103 S.Ct. at 3481, 77 L. Ed. 2d at 1220; Lund, supra, 119 N.J. at 48. To remove occupants from a car, the police "need not point to specific facts that the occupants are 'armed and dangerous.' Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger . . . ." State v. Mai, 202 N.J. 12, 22 (2010) (quoting State v. Smith, 134 N.J. 599, 618 (1994)). Such grounds for heightened caution need not rise to the level of a reasonable suspicion that the occupants are engaged in criminal activity. Smith, supra, 134 N.J. at 618.
Having rejected by this analysis defendants' contentions that the police violated his constitutional rights by stopping the Cadillac and detaining him, we now consider whether Detective Powell violated defendant's constitutional rights by leaning down in front of the Cadillac and observing a small orange glow inside the grill that he immediately identified as an indication of a concealed handgun. The State argues that Detective Powell observed the handgun "in plain view" from a location where he was standing lawfully. Defendant argues that the gun was hidden under the hood and was not in plain view of the officer, and also that the detective's looking for the gun at that location with the use of a flashlight was an intentional warrantless search rather than an inadvertent sighting of evidence. Defendant argues that the State's plain view justification is merely a pretext for a purposeful warrantless search, and that the Supreme Court has held that a telephonic search warrant should be sought if the police cannot show exigent circumstances for conducting an immediate search of a vehicle at the location of the stop. State v. Pena-Flores, 198 N.J. 6, 35-36 (2009).
The plain view doctrine permits the police to seize evidence without a warrant where the officer is "lawfully . . . in the viewing area," the evidence is discovered "inadvertently," and it is "'immediately apparent' to the officer that items in plain view [are] evidence of a crime, contraband, or otherwise subject to seizure." Johnson, supra, 171 N.J. at 206-07 (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971); State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).
Here, defendant does not dispute that Detective Powell was standing on a public roadway where he had a right to be. He contends the detective could not have immediately recognized the small orange glow as indicating the presence of a handgun under the hood. We reject that contention in light of the officer's knowledge of the tip that defendant was in possession of a handgun in the car, his personal observation of defendant "fiddling" in front of the Cadillac and lifting the hood, and his recognition of an orange glow as indicating that the safety of a handgun is off.
Defendant argues primarily that the detective's finding of the gun was not inadvertent, that Detective Powell was looking for the gun when he bent down to look through the car's grill using a flashlight to illuminate the location of his search. The subjective intent of the officer is not relevant to determining whether an object was "in plain view" or whether its discovery violated the defendant's constitutional rights. That determination is made based on an objective analysis of the facts. Bruzzese, supra, 94 N.J. at 219.
We conclude that Detective Powell's actions did not violate the Fourth Amendment or our State constitution because they did not amount to a search that intruded upon defendant's privacy rights. Our conclusion is consistent with the Supreme Court's discussion of the plain view doctrine and its holding in Johnson, supra, 171 N.J. 192, upon analogous factual circumstances. In that case, an unidentified citizen provided a tip to the police that the defendant was selling crack cocaine from a particular address. Id. at 199. As the police approached that address and shined a spotlight onto the porch, several persons moved away, and the police saw defendant placing something into an area of a porch post. Id. at 200. The police went onto the porch and used a flashlight to look at the post, where they found a hole. Inside the hole, again using the flashlight, they saw an object. An officer reached inside the hole and retrieved a box that contained crack cocaine. Id. at 200-01.
The Supreme Court held the police conduct did not violate the defendant's constitutional rights. Id. at 220. The Court discussed the plain view doctrine, id. at 206-20, including the questionable viability of the requirement that police discover the evidence "inadvertently," id. at 211-213 (discussing the United States Supreme Court's abandonment of the "inadvertence" prong of the plain view doctrine in Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990)). Significantly for purposes of this case, the Court stated in Johnson, supra, 171 N.J. at 210, that an officer's looking into the hole in the post "was not a search within the meaning of the Fourth Amendment." The police were lawfully on the porch, id. at 209, and: "[a]ny object in the hole could have been observed by inquisitive passers-by or any other member of the public. There is no reason why a diligent police officer should not be allowed to observe that which he or she could have observed as a private citizen[,]" id. at 210.
Similarly in this case, Detective Powell's lawful presence in front of the Cadillac parked on a public road permitted him to look at the grill without violating defendant's constitutional rights. The fact that he had to bend down to do so has no constitutional significance. Cf. State v. Basil, 202 N.J. 570, 578 (2010) (no constitutional challenge to or discussion of the fact that police recovered a shotgun from underneath a vehicle after an unidentified woman provided a tip that defendant had threatened her with the shotgun before concealing it under the vehicle). The inadvertence requirement is satisfied because the police had not previously been investigating defendant and did not know before that night that he would be carrying a concealed handgun under the hood of the Cadillac. See Johnson, supra, 171 N.J. at 212-13; State v. Padilla, 321 N.J. Super. 96, 102-03, 108 (App. Div.) (police investigating an anonymous tip about a gun in a motel room could make visual observations after obtaining permission to enter the room and could seize evidence of criminal offenses found in plain view), certif. denied, 162 N.J. 198 (1999), aff'd o.b. on different issue, 163 N.J. 3 (2000).
Nor does it make a difference constitutionally that Detective Powell may have used a flashlight to illuminate the area inside the grill and under the hood. See Texas v. Brown, 460 U.S. 730, 739-40, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502, 512 (1983); State v. Nishina, 175 N.J. 502, 517-18 (2003); Johnson, supra, 171 N.J. at 210. The important fact is that Detective Powell saw the orange glow without opening the hood of the car, that is, without a constitutionally significant intrusion upon defendant's right of privacy to the contents of the car.*fn2 Cf. Arizona v. Hicks, 480 U.S. 321, 323-25, 107 S. Ct. 1149, 1152-53, 94 L. Ed. 2d 347, 353-54 (1987) (police officer's turning over stereo equipment to view and record serial numbers for comparison with report of stolen items constituted a search beyond the plain view sighting of the equipment). Without moving any item in which defendant had a privacy right, Detective Powell saw only what any inquisitive person might have seen had he bent down and looked at the grill area of the car.
Upon seeing the orange glow and immediately recognizing it as the marking for the safety of a handgun, the officer had developed probable cause to search under the hood and seize the gun. See Johnson, supra, 171 N.J. at 206-07 (citing Coolidge, supra, 403 U.S. at 465-68, 470, 91 S. Ct. at 2037-40, 29 L. Ed. 2d at 582-85); Bruzzese, supra, 94 N.J. at 236. We reject defendant's arguments that Detective Powell's finding of the gun was inconsistent with the plain view doctrine, and that the police lacked probable cause to search under the hood and seize the gun.
The remaining issue is whether the police could lift the hood on the spot and seize the gun, or whether they were required to apply for a telephonic search warrant. That question requires our application of the automobile exception to the warrant requirement of the Fourth Amendment and our State constitution.
The automobile exception under New Jersey law differs from the federal automobile exception in that "(1) . . . the stop had to be unforeseen and spontaneous and (2) . . . exigency must be assessed based on the particular facts and circumstances of the case, and does not automatically flow from the mobility of the vehicle." Pena-Flores, supra, 198 N.J. at 22; accord State v. Cooke, 163 N.J. 657, 666-71 (2000); State v. Colvin, 123 N.J. 428, 429-30, 434-35, 437 (1991); State v. Alston, 88 N.J. 211, 233-34 (1981). Here, the stop was unforeseen and spontaneous because the police had no prior knowledge of the anticipated movement of the Cadillac. Defendant argues, however, that no exigency was demonstrated justifying the warrantless search.
Discussing what constitutes exigent circumstances for a warrantless search of a car, the New Jersey Supreme Court stated:
Legitimate considerations . . . include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk. [Pena-Flores, supra, 198 N.J. at 29.]
These considerations are neither an "exhaustive list" nor to be applied rigidly to dissimilar facts. State v. Minitee, 210 N.J. 307, 321-22 (2012). Whether or not an exigency exists for a warrantless search is determined by an objective reasonableness standard "in the totality of the circumstances." Id. at 324.
Here, the trial judge concluded that exigent circumstances existed. Noting that the car would be towed with a handgun placed under the hood and its safety device off, the court was concerned with danger to the public and the necessity of securing the gun promptly. See State v. Diloreto, 180 N.J. 264, 281-82 (2004).
Because all three occupants were taken to police headquarters and the car was stopped on the ramp of a State highway, closing it to traffic, the car could not have been safely left in place while the police applied for a search warrant. The police arranged to have the car towed and impounded. They could not be sure that the potentially loaded handgun would remain securely in place while the car was being towed. For the safety of the public, the police had a duty to seize and secure the gun before the car was towed. Like Minitee, supra, 210 N.J. at 322-23, the particular circumstances here justified a limited warrantless search under the hood and seizure of the handgun.
The trial judge correctly concluded that the police did not violate defendant's constitutional rights in stopping the vehicle he was driving, detaining him, and searching for and seizing the handgun from under the hood of the car.
We address in summary form each of defendant's other arguments on appeal.
Defendant argues that the verdict was against the weight of the evidence. He contends that the jury was mistaken in disregarding defense testimony from defendant's brother-in-law, one of the juveniles who was an occupant of the Cadillac with defendant. The brother-in-law testified that the handgun belonged to him and that he had hidden it under the hood without defendant's knowledge.
As an initial matter, defendant's argument is procedurally barred because he did not move for a new trial on the ground that the verdict was against the weight of the evidence. See Rule 2:10-1 ("the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court"); State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006); State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997).
In addition, credibility determinations are the province of the jury, and we do not interfere with the jury's decision in the absence of manifest injustice. State v. Cook, 179 N.J. 533, 565 (2004); State v. Reyes, 50 N.J. 454, 463-64 (1967). The jury appears to have credited the testimony of Detective Powell that he observed defendant opening and closing the hood of the Cadillac and kneeling down near the grill. There is no manifest injustice in the jury's discrediting the testimony of the juvenile and that of defendant that he had no knowledge of the concealment of the handgun.
Next, defendant argues that the trial judge gave erroneous instructions to the jury regarding its consideration of his four prior convictions to assess his credibility as a witness at trial. As defendant concedes, however, the judge's instructions conformed to Model Jury Charge (Criminal), "Credibility - Prior Conviction of Defendant" (2003). Because the four prior convictions were "sanitized" in accordance with State v. Brunson, 132 N.J. 377, 391-92 (1993), the jury could not have considered "the nature" of defendant's prior crimes except as to their degree. There was no plain error in the judge's instructions to the jury.
Nor did the trial judge abuse his discretion in admitting all four prior indictable convictions of defendant, although only the last had occurred within ten years of the trial. Defendant's record indicated a continuing series of criminal conduct, thus making all his convictions admissible as relevant to his credibility. State v. Sands, 76 N.J. 127, 145 (1978).
Finally, defendant's extensive prior record of indictable and municipal court convictions supported the finding at sentencing of aggravating factors three, six, and nine, N.J.S.A. 2C:44-1a(3), (6), (9). Those aggravating factors clearly and convincingly outweighed the absence of mitigating factors, N.J.S.A. 2C:44-1b, and they justified the sentence of six years imprisonment, which is near the low end of the sentencing range for a second-degree crime. The three-year period of parole ineligibility was mandatory under N.J.S.A. 2C:43-6c for the firearms offense. The sentencing judge did not abuse his discretion in imposing sentence. State v. Bieniek, 200 N.J. 601, 608-09 (2010); State v. Roth, 95 N.J. 334, 364-66 (1984).