STATE OF NEW JERSEY v. VINCENT REED

NOT FOR PUBLICATION WITHOUT THE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.

VINCENT REED, a/k/a VINCENT S.

REED,

Defendant-Appellant.

________________________________________________

November 30, 2015

Submitted October 20, 2015 Decided

Before Judges St. John and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-12-2950.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel; Lynne M. Glass, on the brief).

PER CURIAM

In December 2011, a grand jury sitting in Atlantic County returned an indictment charging defendant Vincent Reed with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and second-degree unlawful possession of a weapon by certain persons, N.J.S.A. 2C:39-7.

After his motion to suppress was denied, defendant pled guilty, pursuant to a plea agreement, to second-degree unlawful possession of a weapon by certain persons. The State agreed to recommend a five-year prison term with a five-year parole disqualifier, and dismiss the remaining pending charges.

After defendant was sentenced in accordance with the plea agreement, defendant filed a notice of appeal challenging the denial of his motion to suppress.

We glean the following facts from the record on appeal. On September 27, 2011, Sergeant James Scoppa of the Atlantic County Prosecutor's Office (ACPO) received a call from a paid confidential informant. Sergeant Scoppa had been working with the informant for three to four months and was in contact with him on a regular basis.

The informant was considered reliable by Sergeant Scoppa and other law enforcement agencies that worked with him because of his knowledge of local drug dealers and criminal activity, as well as his participation in controlled purchases of drugs.

The informant told Sergeant Scoppa that a man known to him as "Viz" was traveling from Atlantic City to Pleasantville to find someone to rob. The informant learned this from Viz, who he described as a thin black man in his early twenties with scruffy facial hair.

Sergeant Scoppa and Detective Michael Kelly, also of the ACPO, drove to Pleasantville. While en route, the informant called again, telling the officers that he had often seen Viz with guns in the past, although he did not know if Viz was armed on this day.

After Scoppa and Kelly arrived in Pleasantville, they met with local Detectives Sample and Taggart. During their meeting, the informant called again and told Scoppa that Viz was at the Atlantic gas station on the corner of Delilah and Main Streets in Pleasantville, in a gray or silver Mercedes SUV driven by a woman.

The officers drove to a Rite Aid across the street from the gas station and, using binoculars, observed a woman driving a silver Mercedes SUV with a male matching the informant's description of Viz sitting in the passenger seat. No other vehicles were in the area.

After observing the Mercedes for a few minutes, Scoppa and Taggart drove to the gas station and parked in front of the Mercedes while Sample and Kelly drove in behind it, blocking all exits. Scoppa and Taggart approached with weapons drawn, identified themselves as police officers, and ordered the occupants to put their hands in the air.

Scoppa was now able to see a third occupant in the back seat, later identified as Rashad Lampkin. The driver immediately raised her hands, but defendant and Lampkin spoke with each other for approximately eight to ten seconds before slowly putting their hands up as well.

After defendant got out of the car, Detective Sample handcuffed him and Detective Kelly removed a gun from the waistband of his pants.

On appeal, defendant presents one point for our consideration

point i

the warrantless stop of the automobile in which defendant was a passenger and seizure of a firearm on his waistband violated his right against unlawful search and seizure.

Our review of a motion judge's findings in a suppression hearing is limited and we must uphold the factual findings underlying the judge's decision so long as those findings are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243 (2007). We will not disturb these findings unless they are so clearly mistaken that the interests of justice demand intervention and correction. Id. at 244.

Defendant claims that the warrantless stop of the car in which he was riding and the subsequent seizure of a weapon from his waistband violated his right against unlawful search and seizure. We disagree, and find no constitutional infirmity in either the stop of the Mercedes or the seizure of the weapon.

A warrantless search is permissible only if "justified by one of the 'few specifically established and well-delineated exceptions' to the warrant requirement." State v. Witt, ___ N.J. ____, ____ (Sept. 24, 2015) (slip op. at 25) (quoting State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)). One such exception is the investigative detention, often called a "Terry stop," referring to the standards announced by the Supreme Court in Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). To justify a Terry stop, a police officer must have a reasonable and articulable suspicion that the person detained is, or is about to be, engaged in criminal activity. State v. Stovall, 170 N.J. 346, 356 (2002).

The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).

Reasonable suspicion for a Terry stop may be based on information provided by a confidential informant. See State v. Zutic, 155 N.J. 103 (1998). The reliability of the informant and the information he offers is assessed under the totality of the circumstances, including the informant's veracity and basis of knowledge, "two highly relevant factors." Id. at 110. An informant's veracity may be established by "past reliability," and his basis for knowledge may be shown by the "level of detail and amount of hard-to-know information disclosed in the tip." Id. at 111.

Defendant does not challenge the motion judge's determination that the informant was established to be reliable and the information he provided came from defendant. Rather, defendant challenges the accuracy of the information provided, noting that the informant, who claimed to know defendant for years, did not know his full name. He also claims that while the information as to defendant's physical description, location, and vehicle were corroborated, there was no confirmation that defendant was about to engage in criminal activity.

The motion judge acknowledged this, but noted that the informant was providing contemporaneous information about defendant's activities and the "immediacy" of this information was a "key piece" to assessing corroboration. The judge concluded that the informant's "information was corroborated effectively in real time, in that it demonstrated that the defendant had arrived in the town where he said he intended to pull off a job."

We are satisfied that the officers received information from a reliable informant that defendant was travelling to Pleasantville to commit a robbery. The informant provided a description of defendant, the car he was travelling in, and his exact location when he arrived in Pleasantville. In addition, the informant had seen defendant with a gun in the past and believed he would be carrying a gun, as he was planning a robbery. The officers were able to corroborate the informant's information when they observed defendant at the Pleasantville gas station. They had reasonable suspicion to believe that defendant was about to engage in criminal activity when they blocked the car and ordered him out.

Once defendant was out of the car, the officers acted reasonably in conducting a protective frisk as they had a reasonable suspicion that "the individual is dangerous and may gain immediate access to weapons." State v. Gamble, 218 N.J. 412, 432 (2014).

Affirmed.