STATE OF NEW JERSEY v. GARY K. FLOYD

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5721-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GARY K. FLOYD,

          Defendant-Appellant.


                   Submitted November 5, 2020 – Decided December 1, 2020

                   Before Judges Alvarez and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 17-07-0449.

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

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Erin M. Campbell, Assistant Prosecutor,
                   on the brief).

PER CURIAM
      Defendant Gary K. Floyd appeals the denial of his motion to suppress

evidence, specifically, a handgun.    After the judge denied the application,

defendant entered a guilty plea 1 to the charge of second-degree unlawful

possession of a handgun,  N.J.S.A. 2C:39-5(b)(1).         On July 23, 2018, in

accordance with the negotiated plea, he was sentenced to five years

imprisonment, subject to a year of parole ineligibility, pursuant to the Graves

Act,  N.J.S.A. 2C:43-6. We affirm for the reasons stated by Judge John A.

Young, Jr., adding some brief comments.

      Jersey City Police Officer Patrick Marella testified at the suppression

hearing that on April 28, 2017, he was on patrol in a marked vehicle with a

partner, Officer Nick Lawson.      At approximately 9:00 p.m., the officers

observed a blue Buick with tinted windows fail to signal a left turn, and they

pulled the car over. As Lawson approached the driver's side, he said to Marella,

who stood on the passenger side, that he saw a bullet hole "on my side." 2 Lawson

asked the occupants to lower their windows because the officers could not see



1
 Defendant was separately indicted for the same offense, illegal gun possession,
on a different occasion. The plea called for the same concurrent sentence on
both indictments.
2
  When shown a close-up photograph during the hearing of the bullet hole,
Marella referred to it as a bullet hole in the rear driver's side door.
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through the tinted glass. The driver was unable to produce his driver's license.

Lawson performed a Terry3 frisk on the driver.         Meanwhile, Marella saw

defendant appearing to shift around in his seat in the rear, apparently nervous.

Marella had been speaking to the front seat passenger, but when he noticed

defendant's movements, he asked defendant to step out of the car.          When

defendant did so, with the aid of a flashlight, the officer saw a tightly secured

black plastic bag tied around "the handle of a handgun sitting on the lip of [a]

back pouch . . . of the passenger seat." The officer said he identified the object

immediately upon seeing the gun handle, confirming his identification once he

had his hand on the bag. Photographs of the interior and exterior of the car, as

well as the bag and the gun itself, were admitted into evidence. Marella said

they removed the gun immediately. The officers were outnumbered by the

occupants of the car, it was dark, and Lawson and Marella did not know how

close the backup officers were to the location of the stop.

      On cross-examination, the officer testified that he could not actually see

the handle of the gun, only the shapes and contours inside the bag. He did not

believe that the gun would have fit inside the pouch, as it contained other items.


3
  Terry v. Ohio,  392 U.S. 1, 27 (1968) (establishing a "narrowly drawn authority
to permit a reasonable search for weapons for the protection of the police
officer.").
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Marella said he knew immediately when he looked at the bag that there was a

gun inside. When Marella authored the complaint's probable cause narrative, he

stated that he saw the "butt of [a] handgun near [a] plastic bag observed

protruding from the rear pouch of the passenger seat."

         The judge found the facts as we have described them in the testimony. In

addition, the judge found Marella to be a credible witness.

         Because Marella saw the handgun while standing outside of the car

"during a lawful motor vehicle stop," the judge opined the plain view exception

applied. The observation the officer made into the vehicle with the aid of his

flashlight was not a search of the interior within the meaning of the Fourth

Amendment. The judge also noted that the parties did not contest the initial

motor vehicle stop. After having reviewed the relevant law as applied to the

facts, the judge stated that because the handgun was in plain view, no warrant

was required, the seizure was lawful, and the weapon would be admissible at

trial.

         Now on appeal, defendant raises the following point:

               BECAUSE LAW ENFORCEMENT ORDERED MR.
               FLOYD, A PASSENGER, TO STEP OUT OF THE
               CAR WITHOUT OBJECTIVE FACTS TO SUPPORT
               A REASONABLE SUSPICION OF DANGER OR A
               NEED TO SECURE THE SCENE, THE MOTION TO
               SUPPRESS SHOULD HAVE BEEN GRANTED.

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      We note preliminarily that defendant did not argue at trial that the officers

had no lawful basis to ask him to step out of the car. Defendant now attacks the

circumstances, claiming that his movements and nervous appearance do not

suffice as a matter of law to justify the request.

      As always, we defer to the trial court's factual findings on a motion to

suppress unless clearly mistaken or so wide of the mark as to require our

intervention. State v. Elders,  192 N.J. 224, 245 (2007) (quoting N.J. Div. of

Youth & Family Servs. v. M.M.,  189 N.J. 261, 279 (2007)).

      The judge's findings of fact and credibility determination on this record

are amply supported. Our review of the trial judge's application of the law to

these facts is de novo. State v. Harris,  181 N.J. 391, 416 (2004) (holding

appellate courts "review de novo the lower court's application of any legal rules

to [the] factual findings.").

      We do not ordinarily consider questions that are raised for the first time

on appeal. State v. Robinson,  200 N.J. 1, 19 (2009). This is particularly true

with regard to a suppression hearing. Raising the issue now means the judge

had no opportunity to analyze it, make factual findings, and apply the law. See

State v. Witt,  223 N.J. 409, 419 (2015) (citing Robinson,  200 N.J. at 19).



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      Even if we were to consider defendant's argument, however, it is so

lacking in merit as to not warrant much discussion in a written opinion. R.

2:11-3(e)(2).   The cases defendant relies upon all lack the context of this

unanticipated encounter between police and civilians.           Unlike the cases

defendant relies upon, in this case the officers had significant reasons to be

concerned about their safety, namely, that a bullet hole was plainly visible in the

body of the car. Because the windows were tinted and the officers could not see

inside, they had no alternative but to ask the occupants to roll them down, and

take the precaution of patting down the driver for their own safety. The pat-

down occurred before Marella saw the gun handle. Given the bullet hole, the

tinted windows, and defendant's nervous appearance while shifting in the back

seat, Marella had sufficient basis to ask him to step outside of the car.

      In State v. Smith,  134 N.J. 599, 618 (1994), the Court explained "that an

officer must be able to point to specific and articulable facts that would warrant

heightened caution to justify ordering the occupants to step out of a vehicle

detained for a traffic violation." The standard is not as stringent as the Terry

standard, and

            the officer need point only to some fact or facts in the
            totality of the circumstances that would create in a
            police officer a heightened awareness of danger that
            would warrant an objectively reasonable officer in

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                                        6
            securing the scene in a more effective manner by
            ordering the passenger to alight from the car.

            [Ibid.]

      We conclude that the combination of circumstances here gave rise to

concern for officer safety and constituted justification for asking the passenger,

defendant, to step outside the vehicle. Defendant does not challenge the plain

view observation made by the officer. His challenge on appeal is limited only

to defendant's removal from the vehicle, which we have addressed.

      Affirmed.




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