State v. Kevin Gamble (071234)

95 A.3d 188, 218 N.J. 412, 2014 WL 3858497, 2014 N.J. LEXIS 801
CourtSupreme Court of New Jersey
DecidedJuly 29, 2014
DocketA-53-12
StatusPublished
Cited by390 cases

This text of 95 A.3d 188 (State v. Kevin Gamble (071234)) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kevin Gamble (071234), 95 A.3d 188, 218 N.J. 412, 2014 WL 3858497, 2014 N.J. LEXIS 801 (N.J. 2014).

Opinion

Judge CUFF (temporarily assigned) delivered the opinion of the Court.

This appeal involves the validity of a warrantless search of a van and the seizure of a handgun from the van’s center console. The initial investigatory stop, the subsequent frisk of the occupants, and the protective search of the passenger compartment of the van were precipitated by two late night anonymous calls to police. The first reported “shots fired”; the second reported an individual seated in a van with a gun on his lap. Both calls identified a location that was well-known to the responding police officers as a high-crime area.

The entry into the passenger compartment of the van by one of the responding officers occurred after police located the vehicle and observed frantic movements by its occupants. When ordered to exit the vehicle, the driver started to leave and then balked. After the driver was forcibly removed by an officer, he was frisked. No weapon was found on him or his passenger. As the officer returned to inspect the interior of the van, he observed the handle of a gun protruding from the center console of the van and almost simultaneously heard a commotion caused by the driver’s attempt to flee. The gun was seized by another officer after the driver was subdued, restrained, and placed in a police ear.

*419 The totality of the circumstances — specifically the 9-1-1 calls, the late hour, the location of the van, the frantic movements of the occupants, and the hesitancy of the driver to leave the van— permitted the responding police officers to form a reasonable suspicion that either one or both of the occupants of the van were armed or that a weapon would be found in the vehicle. The frisk of both occupants failed to produce a weapon. That finding underscored the need to inspect the interior of the vehicle to make sure it did not contain a weapon before the driver and passenger reentered the van. Under the totality of the circumstances, we conclude that the officers conducted a valid investigatory stop, Terry 1 frisk, and protective sweep of the passenger compartment of the van.

I.

We derive the facts from the evidentiary hearing held in response to defendant’s motion to suppress. On May 3, 2008, at approximately 11:00 p.m., Irvington Police Officers Theodore Bryant and Richard Santiago responded to a dispatch of “shots fired” in the area of Chancellor and Union Avenues, a high-crime neighborhood. While patrolling the area, the officers received another dispatch in response to an anonymous 9-1-1 call reporting an individual seated in a tan van with a gun in his lap. No other information was given.

The officers soon spotted a tan van parked on Chancellor Avenue. The officers parked their vehicle behind the van and directed a spotlight on it, then exited their vehicle with their weapons drawn. Officer Bryant could see the occupants moving frantically inside the vehicle, “as if trying to hide something.” He approached on the driver’s side and ordered the occupants, later identified as defendant Kevin Gamble and co-defendant Terrell Wright, to exit the vehicle. At this point, Officer Bryant did not see a gun in the van.

*420 Wright, the front-seat passenger, exited as instructed. As Officer Bryant approached, defendant began to exit and then retreated to the driver’s seat. Bryant testified that he feared defendant might be trying to retrieve a weapon. He struck defendant and pulled him from the vehicle. Bryant frisked defendant for weapons. Finding none, he transferred defendant to a responding backup officer. 2

Officer Bryant then returned to the vehicle to search its interi- or. Bryant testified that he observed the handle of a handgun protruding from the van’s middle console “as he entered the vehicle.” At that point, Bryant heard a commotion and realized that defendant was trying to flee. Bryant exited the van, subdued and restrained defendant, placed him into a police vehicle, and notified other officers that there was a handgun inside the van. In addition to retrieving the handgun from the van, police recovered shell casings at the scene.

Janelle Johnson, defendant’s fiancée, testified for defendant. Johnson, the owner of the van, observed parts of the incident from her apartment window across the street. She testified that she heard someone yelling “get out the car, get out the car,” and saw lights. Johnson looked out the window and saw police surround the van with their guns drawn. Johnson went outside and saw defendant lying on the ground. From the other side of the street, she observed a police officer inside the van “go straight towards the middle of the car and yank the console out,” and remove a handgun. Johnson did not know where the handgun came from or how it got inside the van.

II.

A.

Defendant was charged with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); third-degree receiving stolen *421 property (the handgun), N.J.S.A. 2C:20 — 7; and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a).

Defendant filed a motion to suppress the evidence recovered at the scene, arguing that the search was illegal because no exception to the warrant requirement applied. The State contended that the search was reasonable under the automobile exception to the warrant requirement, maintaining that there was probable cause to believe there were weapons in the vehicle and that exigent circumstances existed when defendant broke free and attempted to flee from the officers. The State argued that, even if the circumstances did not establish probable cause, the officers had reasonable suspicion to justify a protective search of the vehicle. Alternatively, the State maintained that the search was permissible under the plain view exception to the warrant requirement.

The motion court denied defendant’s motion to suppress. The court credited Johnson’s testimony, but found Officer Bryant’s testimony more credible. The motion court held that the totality of the circumstances, including “the fighting, the fact that one individual tried to retreat back into the car, the corroboration of the handgun being found, and in connection with a call, which indicated shots fired,” created a reasonable suspicion to investigate, and further held that the State had met its burden because the weapon was in plain view of the officer.

Following the denial of his motion to suppress, defendant pled guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a), pursuant to a negotiated plea agreement. The court sentenced defendant to the statutory minimum of three years’ imprisonment with a three-year period of parole ineligibility.

B.

Defendant appealed, arguing that the trial court erred in applying the plain view exception. He further contended that no other exception to the warrant requirement applied to the search of the van. The State maintained that the handgun was seized in plain *422

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Cite This Page — Counsel Stack

Bluebook (online)
95 A.3d 188, 218 N.J. 412, 2014 WL 3858497, 2014 N.J. LEXIS 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kevin-gamble-071234-nj-2014.