STATE OF NEW JERSEY v. AKEEM D. GIBSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4272-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AKEEM D. GIBSON,

Defendant-Appellant.

_________________________________

October 19, 2010

Submitted: October 6, 2010 - Decided:

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-08-1395.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Akeem Gibson pled guilty to second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b), pursuant to a plea agreement after his motion to suppress evidence was denied by the trial court. He appeals the order of February 4, 2009, denying his motion to suppress two handguns found on his person. R. 3:5-7(d). We affirm substantially for the reasons articulated by Judge Camille Kenny.

The evidence presented at the suppression hearing is set forth in detail in the judge's oral opinion of February 4, 2009, and need not be repeated here. We note only the following salient facts.

Officer Frank Russo of the Jersey City Police Department was the only witness who testified at the suppression hearing. The veteran law enforcement officer related that at about midnight on April 15, 2008, he and his partner proceeded to a three- or four-family dwelling in response to a radio call that a woman wanted her boyfriend out of the house. Upon finding the exterior front door locked, they knocked on the door and an unidentified black female, later identified as the victim,1 dropped them a key from an upper story window. As the police ascended the stairs to the third floor, they encountered a man, later identified as defendant, sitting on the second floor landing. Defendant responded to the officers' question that he did not live in the building, and then left as directed by the police.

After the police arrived at the apartment and returned the key to the victim, she informed the officers that her boyfriend had left and she needed no further assistance. The officers then exited the building. While they were standing outside conversing with their backup team, an unidentified woman who the officer believed was the victim, came to the window of the apartment they had just left, gestured to them by pointing down the block at defendant, and stated in a stage-whisper, "he's got a gun." There was no one else on the block besides defendant. Officer Russo then "put two and two together" and concluded that defendant, the person whom they had just told to leave the building and at whom the woman was pointing, was the ex-boyfriend who had just left the apartment.

The officers drove down the block in their patrol cars, recognized defendant as the person they had conversed with in the apartment building, and because they had been informed defendant was armed, drew their guns and ordered defendant to the ground. Because of safety concerns, Officer Russo conducted a "quick frisk" of defendant's outer clothing. The officer felt what appeared to be "a heavy steel object" in defendant's right pants pocket, which the officer believed was a gun. The object, which the officer removed, turned out to be a loaded .22 caliber gun.

Defendant was arrested and read his Miranda2 rights. On the way to transporting defendant to headquarters, the officers received a radio message from the backup officers, who had returned to interview the victim, that defendant may have another gun in his possession.3 Officer Russo's partner removed defendant from the car, searched him, found a 22 derringer in defendant's groin area, and disarmed him.

Defendant was charged in a nine-count indictment with seven counts of weapons offenses, including second-degree possession of a weapon by a convicted felon, one count of contempt of a restraining order, and one count of terroristic threats. His motion to suppress the seized weapons was denied. Defendant then pled guilty to possession of a weapon by a convicted felon and, pursuant to the plea agreement, the other offenses were dismissed and defendant was sentenced to a five-year custodial term, with appropriate fines and penalties. This appeal ensued.

On appeal, defendant argues that his constitutional rights were infringed by an unreasonable seizure as the officers had neither a reasonable, articulable suspicion for the stop nor the pat-down of defendant for weapons. After considering the record, briefs and applicable law, we are satisfied defendant's argument is without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.

In reviewing the order denying defendant's motion to suppress, we are required to "uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). We must also "give deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, l92 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

We disagree that the information provided to the officers, along with their observations and experience, did not provide a reasonable, articulable suspicion that would justify their stop and protective Terry4 pat-down search of defendant. See State v. Nishina, 175 N.J. 502, 5ll (2003) (holding that to justify an investigative stop, the facts and rational inferences known to the police officers must rise to the level of a reasonable, objective and particularized suspicion); State v. Rodriquez, 172 N.J. 117, 126 (2002) ("An officer does not need a warrant to make [an investigatory] stop if it is based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity.") (internal citation omitted). The judge addressed, but did not find material to the officers' credibility, the omissions in the police reports and grand jury testimony. We defer to these findings as supported by the record.

Under the totality of the circumstances known to the officers at the time, we are satisfied the court correctly found the officers to have had a reasonable suspicion to stop and pat down defendant. The police had responded to the particular address around midnight on a report of a man who would not leave his girlfriend's apartment. The victim had been sufficiently concerned about her safety so as to prompt a call to her mother to contact the police and to then throw down the key for the officers to use to enter the building. Moments after being informed the ex-boyfriend had left, the police were advised defendant was armed by a woman resembling the victim who appeared at the same window. Defendant, who was the only one on the street and was only about half a block away, was recognized within minutes by the officers as the person they had encountered in the apartment building and who most likely was the ex-boyfriend. That defendant did not initially appear suspicious does not nullify the officers' subsequent particularized suspicion that defendant might be armed and dangerous based on what they learned and observed after the first encounter.

The officers lawfully performed a quick pat-down of defendant in a protective search for weapons, and having found the first gun, lawfully placed defendant under arrest. The second gun was found pursuant to a search incident to a lawful arrest. See State v. Oyenusi, 387 N.J. Super. 146, 154 (App. Div. 2006) ("A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification[,]" provided the search is "substantially contemporaneous" with the arrest) (internal citations omitted), certif. denied, 189 N.J. 426 (2007).

1 We refer to the apartment occupant as the victim for ease in this opinion as that was the nomenclature testified to by the police.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 According to the supplementary report and grand jury testimony of Officer Nunez, one of the backup officers, and the victims' statement, submitted in connection with the suppression motion, she and her partner were informed by the victim that defendant had taken two guns out of his pocket and placed them on the bed in her apartment earlier that evening. The victim told the officers she feared for her life because defendant had been violent with her in the past and she had a final restraining order against him. As related by the officer, the victim had further explained that she had contacted her mother and requested she call the police. In the victim's statement given to the police later at headquarters, she elaborated about her interaction with defendant in the apartment, and confirmed she was the person who threw the apartment keys down to the police and her sister was the informant who had subsequently called to the police from her apartment window.

4 Terry v. Ohio, 392 U.S. l, 21, 88 S. Ct. l868, l880, 20 L. Ed. 2d 889, 906 (l968).