STATE OF NEW JERSEY v. DAVID POWELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6011-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID POWELL,

Defendant-Appellant.

________________________________________________________________

November 16, 2011

Submitted October 25, 2011 - Decided

Before Judges Carchman and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-01-0031.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Jason M. Cieri, Assistant Prosecutor, on the brief).

PER CURIAM

Following the denial of his motion to suppress, defendant David Powell entered a plea of guilty to third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b. The trial judge sentenced defendant to a term of imprisonment of three years concurrent with a sentence of time served on a violation of probation. At the time of his plea, defendant reserved his right to appeal the denial of the motion to suppress. R. 3:9-3(f). He now appeals that denial, and we affirm.

We briefly set forth the facts adduced at the motion to suppress. On October 23, 2007, at approximately 3:49 a.m., Jersey City Police Officers Lema and Sheridan1 were on patrol in the area of Cornelison Avenue, Bright Street and Florence Street, an area in which substantial narcotics and criminal activity occurred. While driving through the parking lot of 530 Montgomery Street, the officers observed a blue Toyota Scion parked in front of a fast food restaurant. The officers noticed three people attempting to enter the parked car. However, after those individuals observed the police officers, they quickly walked away from the vehicle and reentered the restaurant. Believing this behavior to be suspicious, the officers drove out of the parking lot and parked on the Florence Street side of 530 Montgomery Street, out of view of the three individuals.

The officers performed a computer check of the vehicle's license plates, and while the officers were checking the plates to determine if the vehicle was stolen, they observed the vehicle exit the parking lot onto Florence Street at speed exceeding the speed limit. The vehicle proceeded southbound onto Cornelison Avenue and then into the parking lot located behind a house on Montgomery Street. A male, later identified as defendant, immediately exited the front passenger side of the vehicle and motioned towards his waistband. The officers then exited their vehicle, identified themselves and ordered defendant back into his vehicle.

Instead of complying with the officers' instruction, defendant ran into a house on Montgomery Street. Officer Lema chased him while Officer Sheridan secured the vehicle and the two other occupants. Officer Lema observed defendant run into the first floor of building six of the Montgomery Housing Complex. While running through the first floor, defendant threw a black handgun onto the ground. The gun he had discarded was recovered and determined to be a fully loaded Hi-Point .45 caliber handgun. Defendant then returned to the front of the building.

Officers Lema and Sheridan subdued defendant and placed him under arrest. As they did so, defendant spat out a small glassine vial with a black top containing a white powdery substance, suspected to be cocaine.

Defendant's witness disputed some of the officers' factual assertions, including when the officers engaged their vehicle's overhead lights as well as the speed of the vehicle in which defendant was traveling.

Defendant first contends that the warrantless stop of the vehicle, and subsequent search of defendant, was without reasonable and articulable suspicion. The State argues that this contention is without merit, as the record is replete with testimony showing that there clearly was reasonable and articulable suspicion to effectuate a traffic stop and to search the defendant.

The judge resolved any factual disputes in favor of the State. He found the officers' testimony to be credible. Relying on State v. Crawley, 187 N.J. 440, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006), the judge concluded that the stop was proper, but more importantly, that defendant "did not have a constitutional right to endanger the lives of police and the public by fleeing or resisting a stop event though a judge may later determine that the stop was unsupported by reasonable and articulable suspicion."

He found that the stop was not illegal, and defendant's discarding of the weapon and the vial was abandonment, thereby "relinquishing any privacy interest [defendant] had in this gun or vial, which previously [had] been on his body."

On appeal, defendant raises the following issues:

POINT I - THE MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED.

A. The Initial Stop Of The Vehicle Occupied By The Defendant Was Unlawful As It Was Not Based Upon a Reasonable Suspicion That The Law Was Being Violated.

B. A Passenger in a Motor Vehicle, Who Has Done No Wrong Nor Is Suspected of Any Criminal Activity, Has the Right to Exit [a] Vehicle Stopped for a Moving Violation.

We have carefully considered defendant's arguments and conclude that they are without merit. R. 2:11-3(e)(2). We add the following observations.

Although defendant parses out various factual circumstances that, standing alone, may not have supported the officers' conduct in stopping defendant's vehicle and ordering him to return to the vehicle, the totality of circumstances presented here justifies the officers' actions.

This was a high crime area in the middle of the night; the officers observed defendant and his companions approach the vehicle and then abruptly leave the vehicle and enter the restaurant; the officers observed the vehicle leave the area at a high speed and in a manner suggesting careless driving; defendant exited his vehicle after the stop and fled upon being advised to return to his vehicle; and the officers observed him drop the weapon and thereafter, the drugs.

In sum, while each discrete event may not have supported the stop or ultimate arrest, taken as a whole, the facts support a finding of a reasonable and articulable suspicion of a violation. See State v. Montesano, 298 N.J. Super. 597, 607-08 (App. Div.), certif. denied, 150 N.J. 27 (1997). In addition, following their observation of the speeding, the officers had a basis to order defendant to return to his vehicle. See State v. Otero, 245 N.J. Super. 83, 89-90 (App. Div. 1990) (noting the importance of officer safety as a concern in a situation involving uncooperative occupants of an automobile). Under the circumstances described in this factual scenario, we do not consider to be a defining factor the fact that, unlike in Crawley, supra, 187 N.J. at 444 n.1, the officers in this case did not have prior knowledge of the presence of a weapon.

The time, place and circumstances presented here suggest that the officer, to insure both his and his fellow officer's safety, did not impose a specific, constitutionally infirm burden on defendant by ordering him to return to his vehicle. Defendant's ensuing flight and his abandonment of both the weapon and the vial likewise did not implicate any unconstitutional proscriptions barring the police officers' subsequent actions.

We find no basis for our intervention.

Affirmed.

1 The record does not reflect the first names of the police officers.