NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4376-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRUCE W. JACKSON, JR.,
Defendant-Appellant. ______________________________
Submitted July 25, 2017 – Decided June 14, 2018
Before Judges Ostrer and Leone.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 14-01-0052.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Christopher S. Porrino, Attorney General, attorney for respondent (Sarah D. Brigham, Deputy Attorney General, of counsel and on the brief).
The opinion of the court was delivered by
LEONE, J.A.D. Defendant Bruce W. Jackson appeals his August 5, 2015 judgment
of conviction after a guilty plea. He challenges the denial of
his motion to suppress. We affirm.
I.
We derive the following facts from the trial court's factual
findings at the April 23, 2015 suppression hearing, and the hearing
testimony of Officer Timothy Rehmann, Officer Michael McLaughlin,
and Officer Colt Gibson, all patrol officers with the Millville
Police Department.
On September 7, 2013, Officer Rehmann received a call from a
known source reporting that shots had been fired at the Delsea
Gardens apartment complex involving a black Toyota FJ Cruiser with
a white top. The caller followed the FJ Cruiser to a Wawa. When
Rehmann got there, the FJ Cruiser had left the Wawa, but Rehmann
reviewed the Wawa's surveillance footage, saw the FJ Cruiser had
parked there, and identified defendant as the driver and the
registered owner of the FJ Cruiser. Rehmann lacked sufficient
evidence of a shooting, but printed out a picture of the FJ Cruiser
from the surveillance footage and posted it where other officers
saw it, including Officer Gibson.
On October 1, 2013, at 12:19 a.m., Officers Rehmann,
McLaughlin, and Gibson responded to another report of shots fired
at an apartment in Delsea Gardens. Rehmann found a bullet strike
2 A-4376-15T4 through an apartment window and bullet fragments in the apartment.
Other officers found shell casings on the ground nearby.
While looking for evidence, Officer McLaughlin was approached
by an individual in a hooded sweatshirt, with the hood pulled
tightly over his face. The individual stated he knew who did the
shooting, and he was willing to talk in a more private place.
McLaughlin met privately with the individual, who said he saw a
black FJ Cruiser with a white top pull into the complex, multiple
persons exit the vehicle, and the persons "cranking rounds off."
They then got back in the FJ Cruiser and left. The individual
declined to identify himself due to the high level of gang activity
in the area and his resulting fear of retaliation. McLaughlin
shared this information with the other officers, including Officer
Gibson.
Within a few minutes of that conversation, Officer McLaughlin
observed a black FJ Cruiser with a white top pull into the complex.
McLaughlin testified that "as they pulled in, they turned their
headlights off and it seemed like as soon as they saw the police
car there they hurried up and turned back out," driving without
headlights on the street. Officer Rehmann testified that while
taking photographs of the shell casings, he observed a black FJ
Cruiser with a white top enter Delsea Gardens, drive with no lights
3 A-4376-15T4 on, turn into a nearby parking lot, and then turn back and exit
the complex.
Officer Gibson testified he observed the black FJ Cruiser
with a white top pull into the complex with its headlights on,
make an immediate u-turn, emerge from behind a building with its
lights off, and then leave the complex, driving on the street with
its lights off. Gibson immediately went to his vehicle to follow
the FJ Cruiser.
Officer Gibson located the FJ Cruiser stopped at a Wawa gas
station. He exited his vehicle and performed a "felony stop,"
pointing his weapon at the occupants of the FJ Cruiser and ordering
them to open the door, exit the FJ Cruiser, and lay on the ground.
Three occupants – including defendant, the driver – exited the FJ
Cruiser. Two other occupants of the FJ Cruiser, who were in the
Wawa, fled when the police approached.
Officer Gibson approached and looked in the FJ Cruiser to
confirm there were no more occupants left in the vehicle. Through
a window he observed a handgun in the pouch behind the front
passenger seat.
Officers Rehmann and McLaughlin joined Officer Gibson. Using
his flashlight, Rehmann looked into the vehicle to see if any
weapons were in plain view and to verify the vehicle was
unoccupied. Without opening the doors, Rehmann observed the butt
4 A-4376-15T4 end of the semi-automatic-pistol in the pouch on the back of the
front passenger seat. He also looked through the rear window of
the SUV and saw a revolver and the barrel of a shotgun in the
cargo area.1
Defendant was charged with second-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b) and third-degree unlawful
possession of a shotgun, N.J.S.A. 2C:39-5(c)(1). After the hearing
on defendant's motion to suppress, the trial court found "[t]here
was a legitimate reason to stop [the] car for a motor vehicle
violation," that "the felony stop" was justified under "the
totality of the circumstances," and the weapons were properly
seized under "a recognized exception to the warrant requirement
in that they were recovered due to the fact that they were located
in plain view."
Defendant pled guilty to second-degree unlawful possession
of a weapon. At the plea hearing, defendant stated as follows.
On October 1, 2013, he was driving his FJ Cruiser and had a 9 mm
Ruger handgun in the pouch behind the front passenger seat. He
had no permit. He, co-defendant Hector Guevera, and three other
passengers drove to the Delsea Gardens apartment complex, heard
1 Officer McLaughlin testified he patted down defendant, and found a large hunting knife. However, defendant was not charged with possessing the knife, and it is not at issue on appeal.
5 A-4376-15T4 shots fired, left, and discovered the FJ Cruiser had a bullet
hole. They drove to the residence of Guevera, got two more
handguns and a shotgun, and drove back to Delsea Gardens. They
then drove to get gas at the Wawa, where the police came and saw
and seized the guns. Pursuant to the plea agreement, the trial
court sentenced defendant to five years in prison with one year
of parole ineligibility.
Defendant appeals, arguing:
THE ITEMS SEIZED FROM DEFENDANT'S VEHICLE SHOULD HAVE BEEN SUPPRESSED AS FRUITS OF AN ILLEGAL WARRANTLESS SEARCH. BECAUSE NO EXIGENT CIRCUMSTANCES EXISTED, THE WARRANTLESS SEARCH OF THE VEHICLE WAS UNCONSTITUTIONAL.
II.
We must hew to our standard of review. An appellate court
is "bound to uphold a trial court's factual findings in a motion
to suppress provided those 'findings are "supported by sufficient
credible evidence in the record."'" State v. Watts, 223 N.J. 503,
516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)).
"Deference to those findings is particularly appropriate when the
trial court has the '"opportunity to hear and see the witnesses
and to have the feel of the case, which a reviewing court cannot
enjoy."'" Ibid. (quoting Elders, 192 N.J. at 244). "Nevertheless,
we are not required to accept findings that are 'clearly mistaken'
6 A-4376-15T4 based on our independent review of the record." Ibid. (quoting
Elders, 192 N.J. at 244). "We owe no deference to a trial . . .
court's interpretation of the law, and therefore our review of
legal matters is de novo." State v. Hathaway, 222 N.J. 453, 467
(2015).
III.
The United States and New Jersey Constitutions allow an
investigatory stop "where a police officer observes unusual
conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot." Terry v. Ohio,
392 U.S. 1, 30 (1968); State v. Davis, 104 N.J. 490, 504-05 (1986).
An investigatory stop is valid "if, based on the totality of the
circumstances, the officer had a reasonable and particularized
suspicion to believe that an individual has just engaged in, or
was about to engage in, criminal activity." State v. Stovall, 170
N.J. 346, 356 (2002).
Reasonable suspicion "requires '"some minimal level of
objective justification for making the stop."'" State v. Amelio,
197 N.J. 207, 211-12 (2008) (citations omitted). "Although a mere
'hunch' does not create reasonable suspicion, the level of
suspicion required is 'considerably less than proof of wrongdoing
by a preponderance of the evidence, and 'obviously less' than is
necessary for probable cause." State v. Gamble, 218 N.J. 412, 428
7 A-4376-15T4 (2014) (citations omitted). "Because the 'determination of
reasonable [and articulable] suspicion is fact-sensitive,' a
careful review of the totality of the circumstances surrounding
each case is required." State v. Mann, 203 N.J. 328, 338 (2010)
(alteration in original) (citation omitted). Here, the totality
of the circumstances gave rise to reasonable suspicion both of a
traffic violation and of illegal possession of a firearm.
"'It is firmly established that a police officer is justified
in stopping a motor vehicle when he has an articulable and
reasonable suspicion that the driver has committed a motor vehicle
offense.'" State v. Locurto, 157 N.J. 463, 470 (1999) (citation
omitted). Here, it is undisputed Officer Gibson had the right to
stop the FJ Cruiser once he and the other officers saw it commit
a motor vehicle violation by driving without headlights on the
streets around midnight. N.J.S.A. 39:3-47(a) ("No person shall
drive . . . any vehicle . . . on any street or highway during the
times when lighted lamps are required unless such vehicle . . .
displays lighted lamps[.]"). Thus, when Gibson saw the FJ Cruiser
parked at the Wawa, he had the right to detain the FJ Cruiser and
its driver, defendant.
In addition, Officer Gibson had a reasonable suspicion the
occupants of the FJ Cruiser had one or more firearms. Gibson was
aware of the report of the shooting at Delsea Gardens, which had
8 A-4376-15T4 been confirmed by Officer Rehmann's discovery of the bullet hole,
bullet fragments, and shell casings. Gibson also knew that Officer
McLaughlin had received information that the shooting was done by
persons in the FJ Cruiser.
"[A]s a general rule, '[a]n anonymous tip, standing alone,
is rarely sufficient to establish a reasonable articulable
suspicion of criminal activity.'" State v. Golotta, 178 N.J. 205,
228 (2003) (citation omitted). "[H]owever, there are situations
in which an anonymous tip, suitably corroborated, exhibits
'sufficient indicia of reliability to provide reasonable suspicion
to make the investigatory stop.'" Florida v. J.L., 529 U.S. 266,
270 (2000) (citation omitted). "When an anonymous tip is involved,
additional factors must be considered to generate the requisite
level of reasonable and articulable suspicion." State v. Privott,
203 N.J. 16, 26 (2010).
Unlike those cases, which involved anonymous telephone calls,
here the individual spoke to Officer McLaughlin face-to-face.
"Generally speaking, information imparted by a citizen directly
to a police officer will receive greater weight than information
received from an anonymous tipster." State v. Basil, 202 N.J.
570, 586 (2010). "'[W]hen a tip is made in-person, an officer can
observe the informant's demeanor and determine whether the
informant seems credible enough to justify immediate police action
9 A-4376-15T4 without further questioning.'" Ibid. (citation omitted). "Thus,
an objectively reasonable police officer may assume that an
ordinary citizen reporting a crime, which the citizen purports to
have observed, is providing reliable information." Ibid.
This is so even though the individual "refuse[d] to give any
identifying data about [him]self out of an expressed fear for
h[is] safety," as that "does little to diminish the reliability
of the information." Id. at 576-87 (finding probable cause that
the defendant had a gun based on face-to-face information from a
woman who refused to identify herself). "One reason a face-to-
face encounter with a citizen is considered more reliable than a
purely anonymous tipster is that 'an in-person informant risks
losing anonymity and being held accountable for a false tip.'"
State v. Hathaway, 222 N.J. 453, 471 (2015) (quoting Basil, 202
N.J. at 586). Here, the individual reported the shooting "in a
face-to-face conversation," allowing Officer McLaughlin to observe
his "physical characteristics" including race, sex, height, and
weight, "providing the possibility of his later identification."
Id. at 475 (finding an officer could reasonably credit an anonymous
patron who reported a robbery face-to-face). Thus, "[t]his case
is not like Florida v. J.L.," Basil, 202 N.J. at 588-89, and the
individual was "more akin to an eyewitness citizen informant than
an anonymous tipster," Hathaway, 222 N.J. at 475.
10 A-4376-15T4 The trial court found the officers could assume the individual
was providing reliable information when he stated he witnessed the
black FJ Cruiser with a white top enter Delsea Gardens and he knew
who did the shooting, establishing personal knowledge. The
individual stated the FJ Cruiser pulled into Delsea Gardens,
multiple persons exited the FJ Cruiser and began shooting,
reentered the FJ Cruiser, and left. This information was
sufficient to provide reasonable suspicion that the FJ Cruiser's
occupants had at least one firearm.
In any event, the individual's information was corroborated
in numerous ways. First, the officers had information that a
black FJ Cruiser with a white top had been involved in the
September 7 shooting. Second, the officers had found physical
evidence confirming that a shooting had taken place at Delsea
Gardens on October 1. Third, about thirty minutes after that
shooting, and only ten minutes after the individual spoke with
Officer McLaughlin, all three of the testifying officers saw a
Black FJ Cruiser with a white top pull into Delsea Gardens.2
Fourth, the FJ Cruiser immediately turned off its headlights and
left the complex "as soon as they saw the police cars." As the
trial court found, the officers could infer the occupants turned
2 Officer Rehmann testified that FJ Cruisers were not a "fairly common, widespread type of vehicle."
11 A-4376-15T4 off the headlights of the FJ Cruiser, immediately drove off, and
illegally operated it on the street without lights "to conceal it
from identification by the officers." An attempt to hide from
police can contribute to reasonable suspicion. See State v.
Valentine, 134 N.J. 536, 553-54 (1994).
All that information gave Officer Gibson reasonable suspicion
the occupants of the FJ Cruiser had violated the motor vehicle
laws, reasonable suspicion they had just been involved in the
shooting incident at Delsea Gardens, and reasonable suspicion to
believe they were armed with guns and were trying to evade the
police. He thus had ample basis to "stop" the parked FJ Cruiser
and detain the occupants for an investigatory stop.
As Officer Gibson had reasonable suspicion the occupants had
at least one gun, had been shooting, and had tried to evade police,
it was entirely appropriate for him to order the occupants to exit
the FJ Cruiser at gunpoint. See, e.g., State v. Padilla, 321 N.J.
Super. 96, 108 (App. Div. 1999) (ruling that where a "caller
reported a person with a gun; consequently, the officers had the
right to draw their handguns"). "[T]he authority to conduct an
investigative stop must necessarily carry with it some ability to
effectuate such a stop, including the use of force, if necessary."
State v. Branch, 301 N.J. Super. 307, 319 (App. Div. 1997) (holding
officer properly drew and cocked gun to effectuate a stop), rev'd
12 A-4376-15T4 in part on other grounds, 155 N.J. 317 (1998). Gibson was
"authorized to take such steps as were reasonably necessary to
protect [his] personal safety and to maintain the status quo during
the course of the stop." United States v. Hensley, 469 U.S. 221,
235 (1985).
In Hensley, the United States Supreme Court held that an
officer's conduct in approaching the suspect with gun drawn in a
Terry stop "was well within the permissible range in the context
of suspects who are reported to be armed and dangerous." Id. at
223-24, 235. "The courts have rather consistently upheld such
police conduct when the circumstances . . . indicated that it was
a reasonable precaution for the protection and safety of the
investigating officers." 4 Wayne R. LaFave, Search and Seizure §
9.2(d), at 403 & n.124 (5th ed. 2012).3
Defendant notes "the principle that 'the investigative
methods employed [in a Terry stop] should be the least intrusive
means reasonably available to verify or dispel the officer's
suspicion in a short period of time." Privott, 203 N.J. at 31
(alteration in original) (quoting Florida v. Royer, 460 U.S. 491,
3 Defendant does not challenge the reasonableness of ordering defendant and his passengers to exit the car, see State v. Bacome, 228 N.J. 94, 104-08 (2017), lie down, or be handcuffed, see State v. Legette, 441 N.J. Super. 1, 28 (App. Div. 2015), rev'd on other grounds, 227 N.J. 460 (2017).
13 A-4376-15T4 500 (1983)). Here, the officers engaged in non-intrusive means
by looking through the windows of the FJ Cruiser and seeing the
guns within, which verified their suspicions.
IV.
The seizure of the guns was permissible under the plain-view
doctrine. At the time of the stop, the doctrine justified a
warrantless seizure of evidence when:
(1) the officer was "lawfully in the viewing area," (2) the officer discovered the evidence "'inadvertently,' meaning that he did not know in advance where the evidence was located nor intend beforehand to seize it," and (3) it was "immediately apparent" that the items "were evidence of a crime, contraband, or otherwise subject to seizure."
[State v. Earls, 214 N.J. 564, 592 (2013) (citation omitted).]4
Here, the officers were lawfully present next to the FJ
Cruiser because they made a valid "stop" of the vehicle while it
was parked at a Wawa gas station.
Moreover, when Officers Gibson and Rehmann looked through the
FJ Cruiser's windows and saw the pistol protruding from, the pouch
behind the front passenger seat, and the revolver and the barrel
of the shotgun in the cargo area, it was immediately apparent that
4 Subsequent to this stop, our Supreme Court removed the inadvertence requirement, but did so only prospectively. State v. Gonzales, 227 N.J. 77, 101 (2016).
14 A-4376-15T4 the firearms were evidence of criminal activity. "The term
'immediately apparent' in the third factor means that the police
officer must have 'probable cause to associate the item[] with
criminal activity.'" State v. Bogan, 200 N.J. 61, 79 n.10 (2009)
(quoting State v. Bruzzese, 94 N.J. 210, 236-37 (1983)).
Defendant argues that while the officers could see the
firearms through the FJ Cruiser's windows, they could not seize
them. Our Supreme Court ruled otherwise in State v. Mann, 203
N.J. 328 (2010). In Mann, an officer peered into the open window
of a GMC Yukon SUV, saw what appeared to be drugs on the back
seat, opened the door, and seized the drugs. Id. at 334-35. The
Court ruled that the officer "was lawfully standing outside the
Yukon when he looked inside the open window and observed the
suspected drugs," and "conclude[d] that the plain view exception
to the warrant requirement applies, and that [the officer]'s
seizure of the drugs from the back seat of defendant's vehicle was
lawful." Id. at 340-41; see State v. Reininger, 430 N.J. Super.
517, 526-27, 535-36 (App. Div. 2013) (ruling an officer who saw
firearm cases in a vehicle could open the door and seize them
under the plain view doctrine); State v. Smith, 306 N.J. Super.
370, 379-81 (App. Div. 1997). "There is no legitimate expectation
of privacy shielding that portion of the interior of an automobile
which may be viewed from outside the vehicle by either inquisitive
15 A-4376-15T4 passersby or diligent police officers." Reininger, 430 N.J. Super.
at 534 (quoting Texas v. Brown, 460 U.S. 730, 740 (1983)).
Further, the discovery of the evidence was inadvertent. "The
purpose of the inadvertence requirement, in part, was to
acknowledge that 'where the discovery is anticipated, where the
police know in advance the location of the evidence and intend to
seize it,' the police should secure a valid warrant." Gonzales,
227 N.J. at 91-92 (citation omitted). Here, the police did not
know where the FJ Cruiser was until Officer Gibson found it at the
Wawa, and even then did not know if the gun or guns were still in
the FJ Cruiser or on its occupants, some of whom had fled and
others who had not been frisked until moments before the guns were
spotted. Thus, "the 'inadvertence' requirement of plain view
. . . was satisfied in this case because the police officers did
not know in advance that evidence would be found" in that precise
location. State v. Johnson, 171 N.J. 192, 213 (2002).
Thus, Officer Rehmann properly seized the pistol, revolver,
and shotgun that were in plain view. While he was doing so, the
handgun on the floor came into plain view. Accordingly, seizure
of the firearms was justified under the plain-view doctrine.
"Because the seizure of the [guns] was proper under the plain
view doctrine, it was not necessary for the State to establish
exigent circumstances under the automobile exception." Reininger,
16 A-4376-15T4 430 N.J. Super. at 537. In any event, exigent circumstances also
justified the search of the FJ Cruiser once the police saw the
guns.
At the time of this stop, the automobile exception permitted
a warrantless search of an automobile if: "(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." State v. Pena-Flores, 198 N.J. 6, 28 (2009).5 Under
that test, "courts must not only consider the mobility of the
vehicle or the lessened expectation of privacy in it, but also
must look, to all of the facts and circumstances surrounding the
search to determine the existence of exigency." Id. at 26.
Legitimate considerations are as varied as the possible scenarios surrounding an automobile stop. They include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.
5 Subsequent to this stop, our Supreme Court removed the exigent circumstances requirement in State v. Witt, 223 N.J. 409, 450 (2015), but did so only prospectively.
17 A-4376-15T4 [Id. at 29.]
Here, the stop occurred after midnight. The FJ Cruiser
contained multiple firearms and its occupants had just been
shooting. Although four occupants had been secured by a number
of officers, two other occupants "who kn[e]w the location of the
car and could remove it or its contents" were at large. Ibid.
The search also took place at a Wawa, where "passersby . . . could
tamper with the car or its contents." Ibid. Further, it was
unsafe to leave the FJ Cruiser unguarded, and to delay to obtain
a warrant would place the officers and evidence at risk. Seeing
the guns gave the officers probable cause, there were sufficient
exigent circumstances to justify a search of the FJ Cruiser and
the seizure of the firearms.
The State also contends the officers could have conducted a
protective sweep of the FJ Cruiser to search for weapons because
they had reasonable suspicion. See State v. Gamble, 218 N.J. 412,
426-33 (2014). We need not reach that issue because the officers
had probable cause once they saw the firearms, and could properly
seize them under the plain view and automobile exceptions.
Affirmed.
18 A-4376-15T4