STATE OF NEW JERSEY v. TYLEED J. JONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0419-07T40419-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYLEED J. JONES,

Defendant-Appellant.

_________________________

 

Submitted February 23, 2010 - Decided

Before Judges Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0190.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted for second-degree possession of a firearm, in violation of N.J.S.A. 2C:39-7(b). Following the denial of his motion to suppress the weapon, defendant entered a guilty plea to the indictment and, on March 2, 2007, was sentenced to a five-year prison term with a five-year parole ineligibility period as mandated by N.J.S.A. 2C:39-7(b)(1). Defendant now appeals from the denial of his motion to suppress. We affirm.

We briefly summarize the pertinent factual background.

The only witness who testified at the motion to suppress hearing was Elizabeth Police Officer Denado DeMarco. He stated that on November 4, 2005, he and two other police officers were patrolling the area of Mravlag Manor, which he described as a "high crime area," in which there had been three shootings in the last "48 hours[,]" and two homicides "in separate areas . . . ." At approximately 7:00 p.m., DeMarco received a radio transmission from Police Detective Graham, conveying information from "residents of [Mravlag] Manor . . . stating that there were three to four heavily armed black males who were walking in the courtyard wearing ski caps or possibly wave caps and were possibly there for retaliation of a homicide that had happened . . . the night before." DeMarco had received "descriptions of the shootings" which referred to "three or four black males."

DeMarco also received a radio transmission from Police Officer Morse who had observed "four black males in a black Oldsmobile in the area of [Mravlag] Manor . . . with a temporary plate in the rear window of the car." Morse further relayed the information that the Oldsmobile "sped off in an . . . unknown location as if the vehicle didn't want to deal with the police."

At approximately 11:00 p.m., DeMarco came upon the Oldsmobile parked on a street; it contained three passengers. DeMarco made a U-turn, approached the vehicle, saw the temporary sticker, and decided to investigate "to see if they fit the description [that] . . . had [been] given earlier that evening." The vehicle was parked on Carteret Street, which DeMarco described as "go[ing] around the perimeter of one side of [Mravlag] Manor."

As DeMarco made the U-turn, he "observed the three occupants . . . exiting the vehicle from both sides." He testified that "two of the occupants exited the passenger side, one . . . exited the driver's side. The two who exited the passenger side were in a hurry to get away from the vehicle, they left the door open and continued down Carteret Street." DeMarco stated that although he was in an unmarked vehicle, it was "a Chevy Caprice, [and] it might as well have said Elizabeth Police on it." Therefore, he believed the three individuals were aware of a "police presence . . . ." Two of the individuals ran down the street and were pursued by the other officers. DeMarco pursued and detained the third individual, later identified as Ferdinand Irizarry. When Irizarry made a gesture towards the waistband of his pants, DeMarco handcuffed him and "patted him down, . . . [and] recognized the feel of a butt of a gun . . . protruding from his waistband. [He] removed the handgun."

As the other two police officers were returning with the two remaining occupants of the vehicle, who were in handcuffs, "people were coming from the courtyards of [Mravlag] Manor . . . towards the street where [they] were." Because the original radio transmission had described a vehicle containing four males, DeMarco thought there was "a fourth suspect at large, possibly with another set of keys, [who] had access to the vehicle and may have been armed just as well." Therefore, DeMarco determined that it was necessary to search the vehicle at that time.

In DeMarco's presence, Police Officer Garcia "went through the vehicle . . . and found in the trunk a loaded automatic Tech 9 machine gun." In addition, "wave caps and . . . hats" were found in the back seat of the vehicle which "matched the descriptions of three or four heavily armed males that earlier in the evening went into the courtyard to retaliate for a homicide." DeMarco ascertained that the temporary license plate on the vehicle was registered to defendant.

The trial judge issued a written decision on November 29, 2006. After reviewing the testimony, the judge found as follows:

The police here were actively engaged in an ongoing investigation into deadly shootings that occurred within a day of the stop in question. The stop was not the product of an "[']inchoate and unparticularized suspicion or hunch.['"] Rather, the stop was the culmination of investigative activities into the shootings that began with a tip from a resident of [Mravlag] Manor that three to four heavily armed black males were in the area seeking retribution and continued through observations of the suspect vehicle and the attempted flight by the defendants as the police closed in. These facts plainly satisfy the "principal components of a determination of reasonable suspicion," i.e., "[']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. . . .[']"

The fact that the informant was identified only as a resident of [Mravlag] Manor does not vitiate the officers' reasonable suspicion. The Supreme Court referred to "the well[-]centered rule" that, as a less demanding standard than probable cause, reasonable suspicion "[']can arise from information that is less reliable than that required to show probable cause.[']" While the mere tip that there was a "man with a gun" would be insufficient to establish reasonable suspicion, our Supreme Court has instructed that courts must employ a realistic approach to the dangers presented by the modern proliferation of handguns. Even when the facts are plainly insufficient to support the issuance of a search warrant, police have the "right, if not the obligation, . . . to investigate" a report of a person armed with a gun.

And, of course, here the report of "heavily armed" suspects must be considered in light of the other circumstances. Specifically the report came on the heels of two homicides and the third shooting resulting in critical injuries; the suspects were described as seeking to retaliate for those shootings, the suspects attempted to flee when the police approached and the location was in a high crime area known for violence. Harking back to the language in Terry, it would have been "poor police work" not to stop the defendants under the circumstances here.

. . . .

Officer DeMarco testified that when he ordered the defendants to stop, . . . Irizarry turned and put his hand to his waistband. This movement, consistent with the action of one reaching for a firearm, only enhanced the already sufficient factual basis that warranted a Terry stop and frisk.

The recovery of the loaded firearm from . . . Irizarry corroborated earlier information and also, within the totality of the circumstances, served to satisfy the two prongs necessary to the automobile exception to warrant requirement, i.e., probable cause and exigent circumstances. Having found one firearm on Mr. Irizarry, the police had probable cause under the circumstances to believe that they detained the "heavily armed" males seeking retribution and that additional weapons were in the Oldsmobile.

As noted earlier, the likelihood that a fourth unknown suspect might be nearby and have access to the vehicle, the time and location of the stop, the presence of bystanders and the potential for interference all supported the conclusion that exigent circumstances warranted the search of the vehicle.

[Citations omitted.]

On appeal, defendant argues that the trial judge erred in denying his motion to suppress because there were no exigent circumstances to justify the warrantless search of the vehicle's trunk. He relies upon State v. Dunlap, 185 N.J. 543 (2006), and the companion cases of State v. Pena-Flores, and State v. Fuller, 198 N.J. 6 (2009). Having reviewed the record in light of defendant's contentions and the controlling legal principles, we are satisfied that his claims "are without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(2), other than to address his reliance upon those two cases. We are satisfied that the judge's decision comports with the holdings in both cases.

In Dunlap, supra, police officers acting on a tip from the defendant's girlfriend, detained him and searched his vehicle when the defendant drove up to and parked his car in front of the girlfriend's house; the search revealed drugs and weapons. 185 N.J. at 545-46. Quoting extensively from the Appellate Division's decision, the Court found no exigent circumstances justifying the warrantless automobile search because

"[the defendant's car] was not parked in an open area known for drug trafficking but was, rather, parked on the street in a residential neighborhood. Nor is there any evidence that third persons . . . had any knowledge of defendant's destination . . . . In short, there was no basis here upon which to conclude that a third person might come and destroy or remove evidence in the car."

[Id. at 550.]

The Court noted further:

Nothing in this opinion should be viewed as a retrenchment from the well-established principles governing the automobile exception to the warrant requirement. The standards remain the same: probable cause and exigent circumstances, each of which to be determined on a case-by-case basis. Here, the unique facts . . . fully justified the . . . conclusion that exigency was absent. Different facts . . . would likely have changed the calculus. Police safety and the preservation of evidence remain preeminent determinants of exigency.

[Id. at 551.]

In Fuller, supra, the defendant was stopped for a motor vehicle violation "in broad daylight on a city street at 1:15 in the afternoon." Id. at 32. The police officer "determined that the license plate and the bill of sale did not correspond to Fuller's vehicle." Id. at 31. Therefore, the Court considered that the officer "was entitled, separate and apart from the automobile exception, to look into the areas in the vehicle in which evidence of ownership might be expected to be found." Ibid. The police officers found a weapon "wedged between the console and the front seat . . . ." Id. at 31-32. During the search, the defendant was "arrested and secured inside the cruiser, and thus had no opportunity to gain access to the vehicle or anything it contained. There [was] nothing in the record to suggest that Fuller had cohorts who might have come on the scene." Id. at 32.

Therefore, the Court concluded that Fuller's "vehicle could have been impounded or one officer could have remained with it while a warrant was sought by telephone or in person. There was simply no urgent, immediate need for the officers to conduct a full search of the automobile." Ibid.

In Pena-Flores and Fuller, supra, the Court

reaffirm[ed] [its] longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement. The question of whether exigent circumstances exist is to be determined, as it has always been, on a case-by-case basis with the focus on police safety and preservation of evidence.

[198 N.J. at 11.]

The factual contexts in which the Court declined to find exigent circumstances justifying the warrantless automobile searches in these cases differ dramatically from the facts here. We are satisfied that the record supports the trial judge's decision and is consistent with the principles set forth in Dunlap and Pena-Flores/Fuller, supra.

Affirmed.

 

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

Dunlap, was not discussed by the judge below. The companion cases of Fuller and Pena-Flores were decided on February 25, 2009, while defendant's appeal was pending.

To the extent DeMarco may have relied upon the gun he found on Irizarry in deciding to search the vehicle, we find such reliance proper under the totality of the circumstances. Cf. State v. Privott, ___ N.J. ___ (2010). There, a police officer, prompted by an anonymous tip describing a "man with a handgun" at a specific location, slip op. at 2, detained the suspect and then searched him by lifting his shirt, finding a bag of cocaine "protruding . . . from his waistband." Id. at 4 The Court concluded that, although "the totality of the circumstances justified an investigatory stop, . . . because the search was not limited in scope to an intrusion reasonably designed to protect the officer and to discover a weapon, the fruits of the search must be suppressed." Id. at 2. The Court noted that "[a] reasonable search, as well as the least intrusive maneuver needed to protect the safety of the officer against a possible weapon, would have been the traditional pat-down search of defendant's outer clothing." Id. at 19. Here, DeMarco found the gun on Irizarry as the result of a "traditional pat-down." We are satisfied that the principle set forth in Privott, supra, was not violated in this case.

(continued)

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A-0419-07T4

July 26, 2010