STATE OF NEW JERSEY v. STANLEY ROGERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0883-08T40883-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

STANLEY ROGERS and

JAMES REVELL,

Defendants-Respondents.

 

Argued March 10, 2009 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 07-11-0982.

Dennis J. Hernon, Assistant Prosecutor, argued the cause for appellant (Ronald J. Casella, Cumberland County Prosecutor, attorney; Mr. Hernon, of counsel and on the brief).

Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for respondent, James Revell (Yvonne Smith Segars, Public Defender, attorney; Mr. Wilensky, on the brief).

Wayne Powell, attorney for respondent, Stanley Rogers, relying on the brief filed by respondent, James Revell.

PER CURIAM

On leave granted, the State appeals from the trial court's August 22, 2008 order granting defendants' motion to suppress evidence seized during a warrantless search of an automobile. We reverse.

The suppression hearing disclosed the following facts. On June 22, 2007, at approximately 9:00 p.m., an anonymous 9-1-1 caller contacted the Vineland police, telling the dispatcher that two black men in a black Chevrolet Impala, with New York license plate number DYL5881, were in possession of handguns. The caller informed the dispatcher that the car was parked at a soccer field off of Spring Road.

Vineland Police Officers Kevin Gentilini, Brian Jones, and Sergeant Pedro Casiano, responded to the call, arriving at the soccer field at approximately the same time. They approached a car that exactly matched the caller's description, in which the officers observed two African American men, who they later identified as defendants. There was sufficient light in the area to see the occupants of the car. When the officers arrived, they did not observe the occupants engage in any unlawful conduct.

The officers approached the automobile within a minute or two of their arrival. The car's windows were up. Gentilini told the occupants to keep their hands where the officers could see them; the men initially complied, but then put their hands down. Gentilini saw the occupants bend over, "as if they were reaching for something underneath their seats." He shouted at them to keep their hands where the officers could see them and to stop reaching underneath their seats, but they did not comply.

Because the officers believed the occupants could be reaching for weapons, they drew their service revolvers and ordered the men to put their hands up. Gentilini told the men to raise their hands at least five or six times before he reached the car; Jones told them to raise their hands at least ten times. After the officers drew their weapons, the men raised their hands; nevertheless, Jones saw the passenger repeatedly drop his left arm and appear to reach toward the floor of the vehicle.

The officers also asked the occupants several times to unlock the car doors and roll down the windows, but "they kept nodding their head[s] no." Sergeant Casiano ordered the man in the front passenger seat out of the car, but he replied that he was unable to unlock the door. After the officers ordered the men out of the car several more times, and they failed to respond, Jones unsuccessfully attempted to break the front passenger window with his collapsible baton.

At this point, the driver unlocked the doors, and the men got out of the car. As the passenger got out, Sergeant Casiano used his flashlight to look at the floorboard on the driver's side, where he saw a six-inch stun gun shaped as a pen in plain view. He then "further illuminated [his] flashlight underneath the seat on the driver's side and saw a handgun." After the passenger got out of the car, Sergeant Casiano entered the vehicle to look under the seats and saw another handgun under the passenger seat.

After informing the other officers what he had seen inside the vehicle, Sergeant Casiano ordered them not to arrest the men until backup units arrived. When the driver got out of the car before the passenger, he was told to lay prone on the ground with his face down. Less than a minute later, another officer arrived. The police then placed defendants in handcuffs.

After they handcuffed defendants, the police placed them on the ground at the rear of the car until another patrol car arrived, at which time they placed defendants in that vehicle. The officers then secured the car, towed it to the police station, and obtained a search warrant.

On substantially these facts, the trial court granted the suppression motion in a written opinion. In doing so, the judge reasoned as follows:

At the time the police approached the vehicle that defendants were occupying, the only information that the police had was an uncorroborated anonymous tip from an unknown citizen informant. The tip also lacked specificity in several important respects. It did not name or describe the two suspects, other than stating that they were adult black males. It did not state when the suspects were observed in possession of the handguns. It did not specify how the citizen informant learned of the handgun possession. It did not allege that the defendants had threatened anyone with a gun or pointed a gun at anyone.

Upon arrival at the parking lot, the police did not observe any illegal or suspicious behavior, and the defendants did not attempt to leave the area upon their arrival. Indeed, until the police approached the vehicle and directed the defendants to show their hands they did not even observe any furtive behavior. Moreover, they did not observe any weapons until after the driver exited the vehicle at their command.

There is no evidence that this was a high-crime area. The parking lot and adjacent soccer fields were apparently vacant. No other people were in the vicinity. The police did not recognize either defendant. The defendants made no admissions and did not consent to a search of the vehicle.

Although the defendants' vehicle was not physically blocked by the police cars, it is clear that defendants were not free to leave and would have been pursued by the police had they attempted to do so.

Given these circumstances, the police did not have a sufficient basis to detain the defendants or to order them to exit the vehicle. They also lacked probable cause to arrest the defendants, to search them, or to search their vehicle. Therefore, the warrantless search of the vehicle violated their constitutional rights. The only basis for the issuance of the search warrant was the unlawful discovery and seizure of the weapons during the initial search. Consequently, the items seized during the execution of the search warrant were "fruits of the poisonous tree." Wong Sun v. United States, 371 U.S. 471 (1963); see also State v. Johnson, 118 N.J. 639 (1990). Accordingly, the items seized during both the initial and subsequent searches of the vehicle must be suppressed.

The judge appears to have rested his decision to grant the suppression motion on what he considered to be insufficient information from the anonymous 9-1-1 tipster to justify an investigatory stop. We disagree with that conclusion. The court also failed to consider defendants' failure to comply with the police officers' requests to keep their hands visible while the officers were questioning them. That too was error.

Whether a seizure or stop is unreasonable is dependent upon the particular facts. State v. Matthews, 398 N.J. Super. 551, 557 (App. Div.), certif. denied, 196 N.J. 344 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 1037, ___ L. Ed.2d ___ (2009). Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth and Fourteenth Amendments. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979). To stop and seize an automobile based on an informant's tip, the officers must have a reasonable suspicion that criminal activity is afoot. Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 308-09 (1990). In determining the reasonableness of an automobile stop, the courts consider the exigency of the circumstances and public safety. State v. Golotta, 178 N.J. 205, 221 (2003).

The information provided by a 9-1-1 caller "must convey an unmistakable sense that the caller has witnessed an ongoing offense that implicates a risk of imminent death or serious injury to a particular person such as a vehicle's driver or to the public at large. The caller also must place the call close in time to his first-hand observations." Id. at 221-22. The caller "must provide a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller." Id. at 222 (internal quotation omitted).

Here, although the caller did not give the police a detailed description of the occupants, the caller provided a complete description of the vehicle, its make, model and color, along with its license plate number and exact location. There is no doubt that given the information provided to the police, along with what the police observed when they arrived at the scene, the vehicle they were investigating was the same vehicle that the 9-1-1 caller identified. The police had sufficient information to permit them to conduct an investigatory stop. See Matthews, supra, 398 N.J. Super. at 557 (propriety of investigatory stop involves "community caretaking function and the common law right to inquire based upon the belief that criminal activity may be involved").

The dispositive issue is whether the circumstances then confronting the officers justified their search of the vehicle without a search warrant pursuant to the automobile exception to the warrant requirement. The Supreme Court recently reiterated the "unwavering precedent" establishing the criteria for the warrantless search of an automobile. State v. Pena-Flores, ___ N.J. ___, ___ (2009) (slip op. at 28). In describing the automobile exception to a warrantless search, the Court stated that the search is permissible 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." Ibid. Here, these criteria were met.

The police had been informed that the men in the car had guns. It was entirely reasonable for the police, when investigating the vehicle, to request the men to put their hands where the police could see them. After all, the Constitution "is not a suicide pact[.]" Golotta, supra, 178 N.J. at 221 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 83 S. Ct. 554, 563, 9 L. Ed. 2d 644, 656 (1963)). Based on the information the police had when they approached the vehicle, and based on defendants' actions at that time, the police had reason to believe that the men in the car were armed and dangerous. See Matthews, supra, 398 N.J. Super. at 557.

Because the men failed to comply with the police officers' requests to keep their hands where they could be seen and based on what the police knew when they approached the vehicle, it was also reasonable for the officers to order the men out of the car. As the men were getting out, one of the officers shone his flashlight into the car and observed a stun gun in plain sight on the floorboard below the driver's seat. That reinforced the officers' suspicion that the tip they received, that the two men had handguns, was correct, justifying the limited search under the front seats, where the two handguns were found. The police did not search the rest of the car until after the officers impounded the car and obtained a search warrant.

The officer's actions were reasonable under the circumstances. At the time that they conducted the limited search, the officers were still waiting for backup. It was approximately 10:00 p.m., and three officers were faced with two men who had resisted their requests to keep their hands where the officers could see them. The ratio of police officers to suspect was thus three-to-two, and the challenged search was made before backup arrived. There was no time, given the circumstances, for the police to obtain a search warrant before searching the front floorboard of the vehicle. These circumstances "gave rise not only to probable cause, but also to exigency, thus satisfying the standards governing the automobile exception." Pena-Flores, supra, ___ N.J. at ___ (slip op. at 31). "Police safety and the preservation of evidence remain the preeminent determinants of exigency." State v. Dunlop, 185 N.J. 543, 551 (2006). Both of these factors were present here.

In sum, sufficient probable cause and exigent circumstances existed to invoke the automobile exception to conduct a limited search of the vehicle without a warrant. The circumstances provided an adequate basis under both the federal and State constitutions to justify the police officers' conduct.

 
Reversed and remanded for further proceedings consistent with this opinion.

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A-0883-08T4

April 23, 2009