NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-05-0477.
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for appellant (Michael A. Nardelli, Assistant Prosecutor, of counsel and on the brief).
Rogers and Krajewski, attorneys for respondent (Robert Rogers, on the brief).
Before Judges Alvarez and Ostrer.
On leave granted, the State appeals the March 21, 2013 order suppressing evidence seized during a warrantless search of the person of defendant Daniel Walker. The testimony presented at the hearing centered on the most consequential item, a black semi-automatic handgun loaded with ten rounds of ammunition. For the reasons that follow, we affirm.
The State's principal witness was Matthew Przemieniecki,  a thirteen-year veteran of the Trenton Police Department, and one of the two officers who conducted the stop of defendant. Przemieniecki stated that at approximately 9:00 p.m. on January 19, 2011, he and Detective George Wilson were on patrol in an unmarked white Crown Victoria. As the officers traveled towards Montgomery Street on East Hanover Street, in an area Przemieniecki described as not only high drug and high crime, but violent, he saw a man standing in front of 232 East Hanover. He recognized defendant from prior contacts, and knew him to be a member of the Bloods gang.
Przemieniecki testified that once defendant "became aware" of the officers' presence, he placed his right hand at his waistband and ducked down an alley between two buildings. The officer incorrectly identified the buildings adjoining the alley as 230 and 232. No number 230 exists; rather, the structures are designated as 228 and 232/234.
Przemieniecki did not recall any obstruction across the alley. Once the officers saw defendant leave, they backed up around the corner to Wood Street, knowing that if defendant continued walking to the far end of the alley, he would exit on Wood Street. As they approached, they saw defendant coming out of the alley, and Przemieniecki told him to raise his hands. Before defendant did so, he "checked his right side again." Even when pressed on cross-examination, Przemieniecki insisted the alley had no obstructions, including any fencing.
When defendant raised his hands, the officer saw a bulge on the right side of his waistband. The officers put defendant in a "pat frisk position." Przemieniecki felt the bulge and discerned the shape of a handgun. He lifted defendant's shirt and removed the gun. Defendant then attempted to flee.
The ensuing indictment charged defendant with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7(a) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count four); and second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b) (count five).
Defendant's sole witness was the owner of 228 East Hanover, David Thompson. Thompson had been at the premises on January 29, 2011, ten days after the arrest, because he wanted to clear the snow off the sidewalk in front of his building, even though it was unoccupied. He took photos of the property on that date, which were time-stamped January 29, 2011. The photos depict an ungated six-foot chain-link metal fence, lined with barbed wire along the top, which had been installed by the City of Trenton across the alley between 228 and 232/234 in an effort to curb criminal activity in the area. Thompson did not recall going to the property in December or earlier in the month of January. He did not recall when the fence was erected, but ...