STATE OF NEW JERSEY v. JIHAD L. HAWKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JIHAD L. HAWKINS,

Defendant-Appellant.

_______________________________

March 31, 2014

Submitted February 24, 2014 Decided

Before Judges Parrillo and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Union County,

Indictment No. 10-12-1257.

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress, defendant Jihad L. Hawkins pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, for which he was sentenced, in accordance with the plea agreement, to a four-year term of imprisonment with a three-year period of parole ineligibility. Defendant appeals, and we affirm.

According to the State's proofs at the suppression hearing,1 on August 14, 2010, at around 3:00 a.m., Elizabeth Police Officers Martins and Boone were on routine patrol in a marked police vehicle, traveling west on the 1000 block of William Street, a high-crime, high-narcotics area. The officers were flagged down by a man who informed them that a blue Toyota Corolla they had just passed was occupied by a black male and female who were in possession of a firearm, which was located in the center console of the car. The officers told the man to remain in the area while they investigated further.

The officers then immediately made a u-turn and activated their lights as they pulled up behind the blue Toyota, which was parked and blocking a driveway. As the officers approached the car, they noticed that the driver, later identified as defendant, was sweating profusely. When asked why he was blocking the driveway, defendant appeared puzzled and confused. Both defendant and his passenger were ordered out of the car at which time Officer Boone reached into the center console and retrieved a silver handgun. Defendant and his passenger were then placed under arrest. The individual who provided the tip about the gun was never located or identified.

After the hearing, the judge denied defendant's motion to suppress, reasoning:

Here, the police had the right to stop the vehicle and approach the defendant driver based upon either the motor vehicle infraction or the anonymous tip which, at this point, had been corroborated to a certain extent. Once again, namely that there was a blue Toyota parked on the opposite side of the street with a black male and black female inside the car. Once the police began to question the defendant driver, he was unresponsive and sweating. These factors taken as a whole are all factors in support of establishing that there may have been criminal activity present and justified the police to continue their investigation both [in] duration and scope.

. . . .

Now, the Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] doctrine has been applied to protective searches of a vehicle and its occupants. For example, in Michigan [v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983)] and [State v.] Lund, [ 119 N.J. 35 (1990)]. In general, a protective search of the interior of the vehicle is justified when the Terry standards have been met.

. . . 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 a weapon. [Michigan, supra, 463 U.S. at 1049, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1220] (quoting Terry, [supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906)].

. . . .

When the police questioned the driver of the car, he was unresponsive and visibly nervous and sweating. Based upon the police officer's training and experience, the tip and the driver's actions and behaviors were reasonable grounds to order the driver out of the car for the safety of the officers. The police observed, at this time, the vehicle indeed had a center console, further corroborating the citizen's tip.

Certainly at this time, given the facts that had quickly developed during the past minutes, these officers possessed a well-[g]rounded suspicion that a firearm was in the center console, a place where a weapon could be kept within reach of the driver and/or passenger which falls under the protective search exception to the warrant requirement. The limited search was lawful.

Now, under the automobile exception,

. . . . [e]xigent circumstances are present when officers do not have sufficient time to obtain any form of a warrant. In this case, the stop of the vehicle was unexpected and not planned prior to the anonymous tip. There was probable cause to believe the vehicle was involved in a crime based on it being parked illegally, the fully corroborated tip from the anonymous citizen, except for the actual retrieval of the weapon, and the behavior of the driver.

Moreover, the additional circumstances surrounding the stop, including that the car was stopped at 2:52 a.m. in an area known for its high crime rate and heavy drug area, supported finding a probable cause to search the vehicle for the suspected handgun.

Lastly, the requirement of exigency was met because the defendant was removed from the vehicle, but was not placed under arrest or secured inside a patrol car. . . . This is identical to the situation in [State v.] Pena-Flores, [ 198 N.J. 6 (2009)] where the Court found that exigent circumstances existed to search the interior of the car even when the occupants of the vehicle were removed from the car. The Court found that exigent circumstances still exist when the occupant, in Pena-Flores was initially removed from the vehicle, but was not placed under arrest or secured inside a patrol car.

. . . .

The Court finds that both the traffic violation and the anonymous tips are grounds for a routine stop of the vehicle and allowable to conduct an investigative stop which does not require probable cause, but only a reasonable suspicion of criminal activity.

Moreover, there were also grounds to conduct a limited search of the vehicle based on the articulated facts that the driver was sweaty and nervous, coupled with the corroborated information received from the anonymous tipster as well as the time of day and the high crime area where the search took place.

This appeal follows in which defendant challenges the constitutionality of the search as lacking in probable cause. We reject this challenge.

In the first place, there is no real dispute here that the stop of defendant's vehicle was entirely lawful if for no other reason than defendant was parked and illegally blocking a driveway. N.J.S.A. 39:4-138(d); Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); State v. Golotta, 178 N.J. 205, 213 (2003). Rather, defendant's sole claim is that the officer's subsequent intrusion into the car and retrieval of the firearm in the closed center console was not supported by probable cause. Under the circumstances, however, we conclude that it needn't be.

A recognized exception to the probable-cause requirement allows the police to "stop and frisk" when a police officer "has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest. . . ." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. In that circumstance, the officer's conduct is judged by "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. "The sole justification [for the new standard was] the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Id. at 29, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911.

Although this exception to probable cause was to be applied in very limited circumstances, the Terry protective search principles have since been extended to the search of a car. Michigan, supra, 463 U.S. at 1032, 103 S. Ct. at 3469, 77 L. Ed. 2d at 1201; Lund, supra, 119 N.J. at 48. In Michigan, supra, the Court upheld the right of police to conduct a weapons search of the interior of a car when they have a reasonable belief that the motorist is potentially dangerous. 463 U.S. at 1034-35, 103 S. Ct. at 3473, 77 L. Ed. 2d at 1210. In upholding the search, the Court explained that a search of the passenger compartment of an automobile is "permissible" if the police officer "possesses a reasonable belief based on 'specific and articulable facts which, taken together with 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 1220 (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906).

Thus, where a police officer has reason to believe he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime, a reasonable search for weapons for his protection is permitted. Indeed, our courts have stressed the significance of weapons when these are the object of the search because of concern for the safety of the police officers. See, e.g., State v. Alston, 88 N.J. 211, 232 (1981). There, the Court upheld a search of a car that revealed two handguns and a sawed-off shotgun after the police had seen live shotgun shells when shining a flashlight into the open glove compartment. Id. at 216. See also State v. Mai, 202 N.J. 12, 24-25 (2010); State v. Smith, 134 N.J. 599, 615 (1994) (noting that "the safety concerns of a police officer unquestionably merit grave consideration").

In State v. Esteves, 93 N.J. 498 (1983), police officers were dispatched to investigate a possible robbery in progress at a local meat market. The dispatcher had related that a man with a gun was seen in an orange Volkswagen. Id. at 501. On arriving at the scene, the police went first to the store. Ibid. Next turning their attention to the car in the parking lot, the officers saw what appeared to be a small handgun between the front seats and so began to search the car for the identification. Ibid. Their search of containers in the car uncovered drugs. Ibid. We there concluded that "[w]hen a police officer 'has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest,'" id. at 506 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909), and such an individual has left his vehicle and has been subjected to a Terry search, the limited search of the vehicle would be sustained because the "'defendants would have returned to their vehicle and, had there been a weapon, the weapon would then have been within the reach of the defendants.'" Id. at 507 (quoting State v. Brown, 160 N.J. Super. 227, 234 (Law Div. 1978)).

In determining whether a police officer acted reasonably, in such circumstances, "'due weight must be given . . . to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.'" State v. Thomas, 110 N.J. 673, 679 (1988) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). Here, in addition to defendant's behavior upon the officers' approach, the known high-crime, high drug trafficking character of the area, and the early morning hour, the police officers, most significantly, had a tip from a concerned citizen that there was a gun in the center console of the car. We deem this tip from a face-to-face encounter with a citizen, even unidentified, sufficiently reliable, State v. Basil, 202 N.J. 570, 587 (2010), given that the individual "could not have known when [he] provided the information to [the officer] that he would not take [him] into custody as a material witness, N.J.S.A. 2C:104-2, -5, or later seek [him] out to involve [him] in the case." Ibid. Moreover, and equally important, most of the information provided by the concerned citizen was corroborated by the on-site observations of the police, see State ex re. H.B., 75 N.J. 243, 248-49 (1977) (upholding frisk based on anonymous tip concerning armed black man at luncheonette in black hat, black leather coat, and checkered pants when defendant precisely fit broadcast description), who also noticed that defendant was sweating, appeared confused and was unresponsive to the officers' question about why he was blocking the driveway.

Under the totality of these circumstances, then, we conclude that the police officers had reasonable cause to believe there was a gun in the car and therefore were justified in searching "the passenger compartment of [defendant's] automobile, limited to those areas in which a weapon may be placed or hidden." Michigan, supra, 463 U.S. at 1049, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1220. Accordingly, defendant's motion to suppress was properly denied.

1 At the motion to suppress hearing, the parties stipulated to the facts contained in the Elizabeth Police Department Investigation Report, signed by Officer Martins, dated August 14, 2010.