STATE OF NEW JERSEY v. JABRIL REYNOLDS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0837-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JABRIL REYNOLDS,

Defendant-Appellant.

__________________________________

December 7, 2012

Submitted November 7, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-02-0270.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After unsuccessfully moving to suppress evidence, defendant Jabril Reynolds pled guilty to second-degree unlawful possession of a weapon (a .45 caliber handgun) without first obtaining a permit to carry the same, N.J.S.A. 2C:39-5(b). He was sentenced to three years in prison with a parole disqualifier of three years.

On appeal, Reynolds presents the following argument:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE.

Our examination of the record convinces us that the motion was properly denied. We affirm.

I.

On Saturday, November 8, 2008, at approximately 2:30 a.m., two New Brunswick police officers Sergeant Steven Middleton and Police Officer Dean Dakin observed a Honda automobile parked in a public parking lot on Easton Avenue in New Brunswick. The Honda had previously been observed on the street with Reynolds driving. The police officers were familiar with the Honda and its two occupants, having stopped the car and interviewed both occupants the previous day.

Sergeant Middleton began walking towards the parking lot while Officer Dakin turned his unmarked Ford Explorer around. Reynolds was observed in the vicinity of the Honda's trunk, which he had opened. Upon Sergeant Middleton's approach, Reynolds looked up and then ran off. The sergeant pursued and apprehended Reynolds in short order.

Meanwhile, Officer Dakin was able to maneuver his vehicle into the parking lot and positioned it behind the Honda, blocking its movement. He exited and eventually looked into the open trunk, observing "a large handgun pursuant [sic] to a white leather coat." Officer Dakin immediately seized what he described as a "44 Desert Eagle[,] [i]t's a very, very large handgun. . . . It's a cannon, like they use like Dirty Harry would use in the movie. It's that large of a gun."

After Sergeant Middleton returned with Reynolds in handcuffs and under arrest, Officer Dakin proceeded to "further check out the Honda and [he] discover[ed] another handgun in the trunk." Reynolds was wearing a bullet-proof vest, "exactly like a law enforcement officer. He had [it] under his clothes, and it was tight[] to his body, how a police officer would wear it."

Sergeant Middleton described where these events occurred as being a high crime neighborhood. He stated,

That area, in the morning, yes. It's part of our direct patrol our direct patrol is the assignment that we have, that our officers are directed to go to is the problem areas, uptown. Right there at Easton and Condict, that's where, like I said before, at 2:00, 2:30 in the morning, all the clubs and everyone else appear.

If you're looking for a problem, I've responded there numerous times for fights. I've responded there for shots fired calls. I've responded there for a man who was actually killed at that intersection, on of at least. They're the only killing there, I thought there was more. There's so many problems there, you know. It's it's 100 [percent] high crime area at 2 o'clock in the morning.

In explaining why the Honda's trunk was more fully examined without obtaining a telephonic search warrant, Sergeant Middleton stated,

At 2:00, 2:30 in the morning at Easton and Condict, and the people, the fights, I don't know what kind of manpower our patrol division had. I only had four guys under my command, and I guess I already had one group of people [present]. I don't know if they're friends or family of these two men, I'm already being video tapped [sic] and called all kinds of names from one group, and the other group of drunken college onlookers. At that time, my guess, it [was] not feasible.

The Law Division denied the motion to suppress based upon the plain view doctrine and the presence of exigent circumstances. This appeal followed.

II.

When reviewing a motion to suppress, an "appellate court 'must uphold the factual findings underlying the [motion] court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). A motion court's findings of fact may be disturbed only when "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Best, 403 N.J. Super. 428, 434 (App. Div. 2008) (quoting Elders, supra, 192 N.J. at 244)), aff'd, 201 N.J. 100 (2010); see also State v. Locurto, 157 N.J. 463, 471 (1999).

The United States Constitution and New Jersey's Constitution protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, 7. A warrant is generally required before a search and seizure is conducted. A warrantless search is presumed invalid, and places the burden on the State to prove that the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). These exceptions include the plain view doctrine and exigent circumstances.

The plain view doctrine is triggered when the police are "lawfully in the viewing area" and while there, discover the evidence "inadvertently, meaning that [they] did not know in advance where evidence was located nor intend before[] to seize it," and they had "probable cause to associate the [item] with criminal activity." State v. Mann, 203 N.J. 328, 341 (2010) (citation omitted).

All of these conditions were satisfied when Officer Dakin first observed the .44 caliber Desert Eagle handgun amidst the clothing in the Honda's open trunk. Although, arguably, the police officers were familiar with the automobile and its occupants because of their encounter twenty-four hours earlier, the discovery of the exposed firearm was inadvertent and unexpected. There is no basis to suppress such evidence as the product of a Fourth Amendment violation.

In New Jersey, exigent circumstances are required for the police to conduct a warrantless search of an automobile. State v. Pena-Flores, 198 N.J. 6, 13-14 (2009). "[E]xigency above and beyond the mere mobility of the vehicle is required." Id. at 24. However, in this regard, "'exigent circumstances do not dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom of movement.'" State v. Cooke, 163 N.J. 657, 672 (2000) (citing State v. Alston, 88 N.J. 211, 234 (1981)). "[U]ntil the vehicle is seized by the police and removed from the scene, 'it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it.'" Ibid. Exigency will be found "when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." State v. Johnson, 193 N.J. 528, 553 (2008). "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." Pena-Flores, supra, 198 N.J. at 11.

We agree that exigent circumstances existed at the time and place the Honda's trunk was thoroughly searched. Although there were at least four officers present and Reynolds was in police custody, the pertinent events occurred in the presence of numerous onlookers many allegedly intoxicated in a high-crime area, four hours before dawn. The circumstances existing on Easton Avenue were far too uncertain and potentially dangerous to the police officers and members of the public to conclude that exigency did not exist.

Furthermore, firearms and the special threat they pose to public safety have been recognized by this court in other Fourth Amendment cases. See, e.g., State v. Wilson, 362 N.J. Super. 319, 331-36 (App. Div.) (permitting search of car for handgun even though "both suspects were in custody and the automobile under police control"), certif. denied, 178 N.J. 250 (2003). The presence of a firearm "like Dirty Harry would use in the movie" in an open vehicle triggered enhanced safety concerns and constituted a significant factor in determining whether exigent circumstances existed. State v. Diloreto, 180 N.J. 264, 281-82 (2004). We are satisfied that the Law Division correctly concluded that a warrantless search of the Honda and seizure of both firearms were appropriate under the totality of the circumstances.

Affirmed.