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DOCKET NO. A-5577-09T4








July 12, 2011


Submitted January 12, 2011 - Decided

Before Judges Fuentes, Gilroy and Nugent.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment Nos.

08-10-00863; 00864 and 00865.

Theodore J. Romankow, Union County Prosecutor,

attorney for appellant (Sara B. Leibman,

Assistant Prosecutor, of counsel and on

the brief).

Law Offices of Montell Figgins, attorney for

respondent Larson O'Connor (Montell Figgins,

on the brief).

Respondent Cory Moore has not filed a brief.


By leave granted, the State appeals from the order of the trial court granting defendants Larson O'Connor and Corey Moore's motion to suppress evidence seized by the police during a warrantless search of their car. The police searched defendants' vehicle based on an anonymous tip that two African-American men inside an SUV parked in a particular location were displaying a firearm to bystanders. Because this information was provided by an anonymous source and the police only corroborated non-incriminatory details of the information provided, the trial court found probable cause did not exist to justify the search under the automobile exception to the warrant requirement.

On appeal, the State argues the trial court erroneously failed to analyze the case under the "reasonable suspicion" standard set forth by the United States Supreme Court in Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). The State further argues that probable cause still existed, regardless of the applicability of the Long holding, to justify the search under the automobile exception because the information provided by the anonymous caller suggested the tip came from a "concerned citizen" and the police corroborated the information received. We disagree with the State's arguments and affirm the order of suppression but for reasons that are materially different than those expressed by the trial court. Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968), abrogated on other grounds, Commercial Realty & Res. Corp. v. First Atl. Properties Co., 122 N.J. 546, 585 (1991).

We gather the following facts from the evidence presented to the trial court in the evidentiary hearing conducted to adjudicate defendants' motion to suppress.


On April 1, 2008, Roselle Police Sergeant John Wyso received a call on his work cellular phone from an unidentified individual who told him two African-American men in a tan Suzuki SUV parked at a particular location1 in Roselle were displaying a firearm to an individual or individuals standing outside of the vehicle. The caller also provided the first three characters of the SUV's license plate.

At approximately 7:00 p.m., Sergeant Wyso along with Officers Stacey Williams and Matthew Jackubowski responded to the address provided by the caller. Upon arriving, the officers observed an SUV matching the description given by the caller parked by the side of the road; two men were standing outside the vehicle and two other men were "inside, leaning toward the passenger side of the vehicle." Defendants were later identified as the individuals inside of the SUV.

The officers approached the SUV and requested the individuals standing outside the vehicle to step away and defendants to exit the vehicle. Defendants complied without incident and were not arrested or handcuffed at this time. The officers escorted defendants to the back of the vehicle and patted them down; no weapons or contraband were discovered on their persons. Sergeant Wyso then searched the vehicle's inner compartment and found in the glove-box a .380 caliber handgun loaded with hollow point ammunition. In addition to these core facts, Officer Williams testified that the street where the SUV was parked is in a "high-crime area" known as a "thoroughfare for the Crips [criminal gang]" where numerous shootings have taken place.

Defendants were arrested and subsequently charged and indicted with second-degree possession of a firearm, N.J.S.A. 2C:39-5(b), and fourth degree possession of a prohibited device, N.J.S.A. 2C:39-3(f). Based on their past criminal record, defendants were also separately charged under this indictment with second degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7.

The State argued before the trial court that probable cause existed to support the search of defendant's vehicle because the call providing the information about the vehicle

was made to Sergeant Wyso's cell phone, so we can presume from that that ordinary citizens, you know, regular anonymous tips don't have access to a police officer's work cell phone. So from that information given, we can discern that it was a citizen, a concerned citizen informant who did phone Officer Wyso. Moreover, when that concerned citizen made the phone call to Sergeant Wyso's cell phone, he or she indicated that they observed those defendants showing a handgun outside of that very same vehicle. . . . That person gave information about the make, the color, the model of the vehicle, where the vehicle was located, where the vehicle was parked, and the first three letters of the vehicle's license plate, as well as two black males in the vehicle who were showing the gun to another individual on the street.


Because the tip came from "a citizen informant" the State was not obligated to establish the information provided was "reliable." Probable cause existed because the responding officers were able to confirm the vehicle's make and model with the description given by the caller. Moreover, relying on Michigan v. Long, supra, for the proposition that, incident to a Terry2 pat-down search, a police officer may also search the passenger compartment of an automobile in areas where a weapon may be found, the State argued the search of defendants' vehicle was lawful.

In rejecting the State's arguments, the motion judge made the following findings:

I am not satisfied that the State has proven, by a preponderance of the credible evidence, that the person who provided the information in this case should be accorded the designation of a citizen informant. The evidence here is only that there was a call to the detective's work phone. There's no evidence that they knew who this person was, they could get in touch with this person again, that they knew the address of the person who called. The prosecutor argues that the only people who would call that number are concerned citizens; makes that argument based upon Detective Williams's testimony that he only gets calls from people he knows. But not every call he comes in [sic] from someone he knows must necessarily be a concerned citizen. Detectives give out their cell phone numbers to informants as well as people on the street. So the fact that he knows someone doesn't mean that it's not an informant.


. . . .


Because of that designation and the fact that the State has not proven that this was a concerned citizen, we have to look to a totality of the circumstances as to the reliability of what was supplied by this individual.


The court continued:

In this case, the individual, according to Detective Williams, advised that there was two black males who were showing a handgun to a passer-by. Now there's no evidence in this case that this witness saw that himself as opposed to being advised by someone that that's what's going on.


. . . .


In terms of any evidence as to whether this individual gave prior reliable information that resulted in arrest, we know nothing about this person. So whether this information would support a finding of probable cause, we have no information regarding the reliability of the witness, nor the source of the knowledge.


. . . .


Finally, with respect to the totality of the circumstances, this information could still be supported based upon the credibility of what the tipster gave the police. The police corroborated what was being told in some non-incriminatory issues. There was, in fact, an SUV. It matched the color description, there were two black males, there were passersby. So there is some credibility that can be accorded to the statement of this tipster. However the information that's corroborated is essentially non-incriminatory. A weapon was not seen being displayed and that would be the sine qua non of whether or not probable cause existed.


The court also rejected as misplaced the State's reliance on Long, supra, because under these circumstances, the officers here did not have the authority to conduct a "protective sweep" of the interior of the SUV. However, if the officers' conduct here was permissible under Long, the court found our Supreme Court's decision in State v. Pena-Flores, 198 N.J. 6 (2009), created a higher and controlling standard rendering the search here constitutionally impermissible.


The State argues on appeal that the trial court improperly concluded that the constitutional standards articulated by the United States Supreme Court in Long, supra, did not apply to this case. Under Long, when an officer engaged in a roadside encounter is confronted with a need to conduct a Terry pat-down of an individual, the officer may also "search . . . the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden." Long, supra, 392 U.S. at 1049, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1220. Because the trial court found the police had a reasonable articulable suspicion that defendants' vehicle contained a firearm, the State argues Sergeant Wyso was authorized to search the vehicle's glove compartment.

Defendants argue the trial court properly found that the United States Supreme Court's holding in Long was inapplicable to this case because our Supreme Court's decision in Pena-Flores constitutes the controlling standard regarding the automobile exception to the warrant requirement. In Pena-Flores, the Court "reaffirm[ed the] 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." Pena-Flores, supra, 198 N.J. at 11. Defendant thus argues that the "reasonable belief" standard under Long was preempted by the Pena-Flores standard requiring probable cause and exigent circumstances. We disagree that Long is not controlling here.

Both the United States Constitution and the New Jersey Constitution guarantee the right of the people to be secure against unreasonable searches or seizures in their persons, houses, papers, and effects. U.S. Const. amend. IV; N.J. Const. art. I, 7. Warrantless searches are presumed to be unreasonable unless falling within a recognized exception to the warrant requirement. State v. Wilson, 178 N.J. 7, 12 (2003). One exception to the warrant requirement recognized in New Jersey is the automobile exception, which has been most recently addressed in Pena-Flores, supra.

In Pena-Flores, our Supreme Court examined the federal standard governing the automobile exception, which allows for a warrantless search of a vehicle where the vehicle is "readily mobile and there is probable cause to believe it contains evidence of criminality." Id. at 20 (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031, 1036 (1996)). The Court noted that our state's courts "have never subscribed fully to the federal version of the automobile exception" and asserted that state precedent established a more rigorous standard for the automobile exception in New Jersey, requiring a finding that "(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." Id. at 20, 28 (citations omitted). The existence of exigent circumstances "must be determined on a case-by-case basis" and "[n]o one factor is dispositive; courts must consider the totality of the circumstances." Id. at 28 (citations omitted).

In Long, the United States Supreme Court looked to Terry v. Ohio, in which the Court "upheld the validity of a protective search for weapons in the absence of probable cause to arrest . . . when [a police officer] possesses an articulable suspicion that an individual is armed and dangerous." Long, supra, 463 U.S. at 1034, 103 S. Ct. at 3473, 77 L. Ed. 2d at 1210. The Long Court then addressed the specific question of whether such a search "could extend to an area beyond the person in the absence of probable cause to arrest." Ibid. Writing for the majority, Justice O'Connor concluded:

Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.


[Id. at 1049, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1219-20 (internal citation and quotation marks omitted).]


The Court went on to state that the holding "does not mean that the police may conduct automobile searches whenever they conduct an investigative stop" and that "officers who conduct area searches during investigative detentions must do so only when they have the level of suspicion identified in Terry." Id. at 1220 n.14, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1220. The Court further reiterated that "[a] Terry search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime" but that "[t]he sole justification of the search . . . is the protection of the police officer and others nearby." Ibid. (citation and internal quotation marks omitted). Finally, the Court declined to rule on whether the search of a vehicle's trunk may fall under the exception set forth in the case, as it was not addressed by the Michigan Supreme Court in its holding below. Id. at 1053, 103 S. Ct. at 3483, 77 L. Ed. 2d at 1222-23.

In State v. Lund, 119 N.J. 35, 48 (1990), our Supreme Court stated: "the Michigan v. Long rule is sound and compelling precedent and should be followed to protect New Jersey's police community." Furthermore, the holding in Long is not irreconcilable with the holding in Pena-Flores because they address different and distinct constitutional scenarios. While the automobile exception in Pena-Flores speaks to a scenario where probable cause that some form of contraband is present in the vehicle arises following an "unexpected" stop of the vehicle, the exception set forth in Long arises when an officer conducting a Terry stop develops a "reasonable, articulable suspicion" both that an individual might be dangerous and, specifically, that a weapon may be present in a vehicle that poses a danger to the officer and the public. The trial court thus erred when it determined the reasoning in Long was not applicable to this case.


Notwithstanding the court's analytical error, the evidence seized by the police from defendants' vehicle must be suppressed. The record developed before the trial court does not support a finding that the officers had a reasonable, articulable suspicion that defendants posed a danger to the officers' safety justifying the warrantless search of defendants' vehicle.

Reasonable suspicion is defined as "a particularized and objective basis for suspecting the person stopped of criminal activity." Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996) (internal citation and quotation marks omitted). "The principal components of a determination of reasonable suspicion . . . [are] 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." Id. at 696, 116 S. Ct. at 1661-62, 134 L. Ed. 2d at 919. Reasonable suspicion is determined by examining "the totality of the circumstances - the whole picture." United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981). In the context of a Long vehicle search, one way that "the right to conduct a protective search" may arise is "directly from the basis for the investigatory stop." Lund, supra, 119 N.J. at 45.

Here, the officers were directed to the vehicle in which defendants were found by virtue of the tip that came in to Sergeant Wyso's work cellular phone. There is no evidence in the record identifying the individual who called in the tip or his or her reliability as a law enforcement source. Although the State argued that Sergeant Wyso could have traced back the call to determine the identity of the caller, no evidence was presented before the trial court to support a claim that the call was traceable.

"An anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 127 (2002) (citing Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)). Because "the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable," action taken on the basis of an anonymous tip must by justified by police efforts to "verify that the tip is reliable by some independent corroborative effort." Ibid. (discussing White, supra, 496 U.S. at 329-30, 110 S. Ct. at 2415-16, 110 L. Ed. 2d at 308-09) (internal quotation marks omitted).

Here, the officers responding to the vehicle visually corroborated the information provided in the phone call as to the description and location of the vehicle and the general description of the individuals present both inside and outside of the car. However, as pointed out by the trial court, all of these facts are "essentially non-incriminatory" and "[a] weapon was not seen being displayed."

In Rodriguez, the State argued that an anonymous tip provided a constitutionally justifiable basis for an investigatory stop and search of two individuals. Rejecting this argument, the Court did not find reasonable suspicion existed to justify the stop:

Because the police asked no questions of defendant before taking him to the patrol office and observed nothing unusual about him, the information obtained from the anonymous informant constitutes the only possible basis on which to justify the stop.


. . . .


The informant accurately described the appearance of defendant and [the other individual], and correctly predicted their location at the bus terminal. We cannot reasonably conclude, based on those benign elements of the informant's tip, that the tip itself was reliable in its assertion of illegality. In respect of that aspect of the tip most critical to the analysis, namely, that defendant would be engaged in drug trafficking, the informant provided no explanation of how or why he arrived at that conclusion. In fact, the only portion of the tip corroborated by the officers pertained to the innocent details of defendant's appearance at the bus terminal. Without more, the tip is insufficient to justify the detention under Terry and our analogous case law.


[Rodriguez, supra, 172 N.J. at 129, 131 (internal citation and quotation marks omitted) (emphasis added).]


The facts surrounding the anonymous tip and the level of corroboration found insufficient in Rodriguez are nearly identical to those in this case. Under Long, the search of defendants' vehicle here cannot be justified as "flow[ing] directly from the basis for the investigatory stop." Lund, supra, 119 N.J. at 45. Nor did defendants' conduct after the investigatory stop give rise to an objectively reasonable suspicion that either one of them was armed. Id. at 46.


The order of the trial court suppressing evidence seized as a result of the warrantless search of defendants' vehicle is affirmed.





1 The caller indicated the exact address where the SUV was allegedly parked. In the interest of protecting the privacy of all involved, we have intentionally omitted that address.

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

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