STATE OF NEW JERSEY v. TROY ROBERTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6311-06T46311-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TROY ROBERTS,

Defendant-Appellant.

_____________________________________________________

 

Submitted December 15, 2009 - Decided

Before Judges Wefing and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-12-2251.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Troy Roberts was convicted of third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f). He was sentenced to an aggregate term of four years in prison. On appeal, he raises a single point:

POINT I

THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S MOTION TO SUPPRESS WHERE THE INVESTIGATORY STOP WAS CONDUCTED ON LESS THAN REASONABLE SUSPICION.

We have considered this contention in light of the record and applicable legal standards. We affirm.

A pre-trial evidentiary hearing on defendant's motion to suppress took place before now-retired Judge Sebastian Gaeta, Jr. Ramsey Police detective Brian Huth testified that on August 13, 2003, at approximately 10:30 p.m., he was in an unmarked police car "checking a suspicious person that [he] happened upon" in the rear parking lot of the Maple Shade Motel on Route 17. Police officer Brian Lyman responded to Huth's call for back-up assistance in a marked patrol car. The "suspicious person," a woman in a parked car, was "released" after the officers "checked" her.

Before the woman drove off, however, a black Honda turned the corner of the motel and approached Huth and Lyman as they stood outside their cars. The car came "within ten feet" of the officers, "immediately stopped," and backed up "in a rapid manner." The area behind the motel was "very tight . . . overgrown with . . . vegetation[,]" and basically permitted only one-way traffic. The Honda, with four male occupants, backed off the edge of the parking lot and into a bush.

Huth believed "the driver was impaired or something was afoot that [he] needed to check." The driver appeared to "cut the wheels to get away" when Lyman ordered him to stop. Huth observed the front seat passenger, defendant, "[r]eaching down towards his feet." Lyman approached the car on the driver's side and Huth proceeded to defendant's side. He asked defendant what he had reached for, but defendant "denied reaching." Huth asked defendant to exit the Honda, and he complied. He told Huth that "they were there to meet some girls." When Huth asked if there were any weapons in the car, defendant "lift[ed] his shirt" and said, "I don't have any weapons on me."

The passenger side door was open and Huth shined his flashlight "towards the area where [he] saw [defendant] bend down." He observed "the back strap of a pistol." Huth ordered defendant onto the ground, radioed for additional backup, and seized a .40 caliber handgun from the floor of the front-passenger side of the Honda. It was loaded with a clip of ammunition.

Defendant argued that the officers lacked any reasonable, articulable suspicion to stop the Honda; therefore, the subsequent order Huth gave to have defendant exit the car, Huth's subsequent observations, and ultimately the seizure of the gun and ammunition without a warrant, were illegal. The prosecutor argued that the sudden and erratic movements of the car when the driver unexpectedly saw the police supported the original stop of the car, since it provided the officers with a reasonable suspicion that various motor vehicle offenses were committed, in particular, driving while intoxicated. He further argued that Huth had a reasonable, articulable suspicion to order defendant out of the car based upon his "furtive movements . . . ." Lastly, the prosecutor noted that Huth "was lawfully in th[e] area" of the passenger side door when he observed the gun on the floor of the car.

Implicitly finding Huth's testimony credible, Judge Gaeta noted that "[l]aw enforcement officers may stop a motor vehicle upon 'articulable reasonable suspicion' that a motor vehicle offense had occurred." Noting further that "[n]ot every suspicious action" or "over reaction to police presence warrant[s] a stop," the judge reasoned that "in combination [with other facts], they may well do so." Citing the driver's actions in abruptly stopping his car, "putting the vehicle in reverse and driving into bushes at the edge of the parking lot[,]" Judge Gaeta concluded "such operation raised a reasonable suspicion that the operator may [have been] impaired . . . ."

The judge further observed that "[g]iven the circumstances apparent to the officers, the movement of [defendant] reasonably took on an ominous significance." He concluded that Huth had a reasonable, articulable suspicion that something was "not quite right," and that the "stop[] and asking [defendant] to exit the car were proper." Lastly, Judge Gaeta concluded "[t]he firearm was in plain view, [and] [its] seizure was lawful."

Before us, defendant essentially reiterates the arguments made below. He contends that "neither the driver of the Honda [n]or its passengers had done anything which reasonably suggested that he or they had been engaged in or w[ere] about to engage in criminal activity." He further argues that Judge Gaeta erroneously found that Huth observed defendant's "reaching" movement before Lyman ordered the driver to stop, when, in fact, the testimony was just the opposite. Thus, "the furtive gesture cannot be used to justify the investigative stop."

While we acknowledge defendant's point regarding Huth's testimony as to the chronology of events, it matters little to the analysis, and we affirm substantially for the reasons expressed by Judge Gaeta. We add only these brief comments.

"A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." State v. Carty, 170 N.J. 632, 639-40 (2002)(citations omitted); State v. Amelio, 197 N.J. 207, 211 (2008), certif. denied, ____ U.S. ____ 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). "Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate . . . ." State v. Nishina, 175 N.J. 502, 511 (2003). We concur with Judge Gaeta's conclusion that based upon the totality of the conduct exhibited by the driver of the Honda, Huth and Lyman possessed an objectively reasonable and articulable suspicion that he may have been driving while intoxicated. Therefore, the original stop of the car was lawful.

We therefore move on to consider Huth's order to have defendant exit the vehicle. As the Supreme Court has said:

To support an order to a passenger to alight from a vehicle stopped for a traffic violation, . . . the officer 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 that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.

[State v. Smith, 134 N.J. 599, 618 (1994).]

After Lyman ordered the driver to stop, Huth observed defendant bend over in his seat, and then shortly thereafter return to his original position. He was entitled to assess the significance of this movement in light of the totality of the circumstances and his own experience as a trained law enforcement officer. See State v. Citarella, 154 N.J. 272, 279 (1998). In State v. Conquest, 243 N.J. Super. 528, 530 (App. Div. 1990), we upheld a warrantless search premised upon an officer's order to the front seat passenger to exit the vehicle after he "observed [her] . . . bend out of sight for approximately three seconds towards the driver's side of the vehicle." In this case, Huth's command for defendant to exit the car was justified under all the circumstances.

 
Once defendant was out of the car, Huth made his observations of the floor area where defendant had reached moments earlier. Having seen a portion of the gun, Huth's seizure of it fully complied with the plain view exception to the warrant requirement. See State v. Johnson, 171 N.J. 192, 211-12 (2002); see also State v. Bruzzese, 94 N.J. 210, 236-37 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).

Affirmed.

(continued)

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A-6311-06T4

 

February 4, 2010