SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2900-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANNY MAI,
Defendant-Appellant.
_______________________________
Submitted: January 14, 2009 – Decided February 6, 2009
Before Judges Fisher and C.L. Miniman
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1264.
Evan F. Nappen, attorney for appellant (Louis P. Nappen, on the brief).
Anne Milgram, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).
PER CURIAM
Defendant Danny Mai appeals from a January 15, 2008, Judg¬ment of Conviction and Order for Commitment adjudicating him guilty of third-degree unlawful possession of a handgun contrary to N.J.S.A. 2C:39-5(b). Defendant's motion to suppress evidence under Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963), was denied by order of October 24, 2007, and defendant thereafter entered a conditional guilty plea on November 26, 2007. Defendant was sentenced to probation for a period of two years conditioned on incarceration in the Hudson County Jail for 364 days and obtaining and main¬taining gainful employment when released. Because the officers did not have "an objective, articulable, and reasonable basis to believe [defendant] was armed and dangerous" based on the total¬ity of the circumstances, State v. Matthews, 398 N.J. Super. 551, 557 (App. Div.) (citing State v. Roach, 172 N.J. 19, 27 (2002)), certif. denied, 196 N.J. 344 (2008), we reverse.
Two witnesses testified at the October 15, 2007, suppres¬sion hearing: Officer Mike Szymanski and Sergeant Joseph Olszewski, both of whom were working the midnight tour on May 4, 2007, in separate police vehicles. Both received an anonymous report at 4:25 a.m. of a male with a gun wearing a black coat and black mask who was in the area of Jefferson and Oakland Ave¬nues. Szymanski and his partner responded to that area within a minute or so. Olszewski had already arrived at the scene and observed a silver Nissan Quest minivan standing in the roadway under a street light near 97 Jefferson Avenue, half a block from the reported intersection. The minivan was surrounded by a group of eight to ten males and had five occupants, whose silhouettes were visible through the windows. None of the males outside the minivan fit the description reported by the tipster and none of them had guns. Szymanski and his partner, with the assistance of three other police units, including Olszewski's unit, then "con¬ducted a motor vehicle stop" of the minivan and used their vehi¬cles to block the street to prevent the minivan from leaving the scene.
Szymanski exited his vehicle and walked up to the passenger side of the minivan while his partner approached the driver side. Although Szymanski shined his flashlight through the windows of the minivan and could see people moving around inside, he could not discern what they were doing. Olszewski, who was standing in front of the minivan, saw that defendant was wearing a leather coat and had a black bandanna around his neck. He then instructed Szymanski to remove defendant from the vehicle and pat him down. Although Szymanski had no search or arrest warrant, he opened the rear passenger-side door. Szymanski testified that he did so because he was concerned for his safety, although he admitted that he had been instructed by Olszewski to remove defendant from the minivan. Olszewski testified that defendant was the target of their investigation because he was the only person who fit the anonymous description.
Once Szymanski had opened the rear door, he saw defendant sitting right next to the door he had opened. The other passen¬gers were seated in the front passenger seat, the left rear pas¬senger seat in the second row, and the third-row seat. Because defendant was wearing a black, leather jacket and had a black bandanna around his neck, Szymanski instructed him to exit the minivan and place his hands on the ground to be patted down for weapons. The pat-down did not produce a weapon.
While Szymanski pulled defendant from the minivan, Olszewski moved around to the passenger side of the minivan. During the pat-down, Olszewski exclaimed, "There's a gun," and he instructed Szymanski to handcuff defendant. Olszewski removed the gun, which was a loaded, black .32 caliber Baretta Tomcat, from the minivan for safety reasons. Olszewski found the gun on the floor of the minivan "right where [defendant] was sitting." The other four occupants were then removed from the vehicle, handcuffed for the officers' safety, and identified. None but defendant matched the descrip¬tion given by the anonymous tipster. After defendant was arrested, another officer searched his person and seized a clip that fit the gun and a holster into which the gun fit. The vehicle was impounded for failure to inspect and make repairs, for which Summons #204486 was issued, and Summons #204487 was issued charging the operator with double-parking the minivan.
After argument on the motion, the judge placed his decision on the record. The judge found Szymanski to be a credible wit¬ness and concluded that, because of the anonymous tip, he had a safety concern for himself and his fellow officers. The judge found that the gun was in plain view and that, after defendant was placed under arrest, the clip and holster were found by a search incident to the arrest. He found that the elements of the tip were confirmed by defendant's attire, the gun, and the location of the minivan and that the circumstances of the individu¬als outside the minivan and the movement of the occupants in the minivan were suspicious given the early morning hour.
The judge concluded that the motor vehicle stop served to distinguish this case from the facts of Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), and found that the search and seizure were, thus, not unreasonable. Cit¬ing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the judge determined that the suspicious activity observed by the officers justified a search for weapons. Additionally, he concluded that a police officer making a traf¬fic stop could order the driver and passengers to exit the vehi¬cle under Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1997), and Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997). He determined that the search and seizure were reasonable and that, after the stop, the additional intrusion of instructing defendant to exit the minivan was minimal. He then concluded as follows:
Accordingly, the [c]ourt finds that [defen¬dant] was ordered out of the minivan after a valid investigatory stop of the minivan had taken place. For the reasons I've enumer¬ated, once that happens, we have a plain view of the gun in question which falls within [a] recognized exception to the general warrant requirement to be admissible. Katz v. United States, 389 U.S. 347[, 88 S. Ct. 507; 19 L. Ed. 2d 576 (1967)], State v. George, 257 N.J. Super. 493 [(App. Div. 1992)]. And from there we have . . . there¬after the arrest of the defendant and the search incident to the arrest where the additional paraphernalia connected to this gun are found. Based upon the foregoing, defendant's motion is denied.
Defendant raises the following issue for our consideration:
THE COURT BELOW COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE SEIZED WHERE POLICE SPECIFICALLY STOPPED AND SEARCHED APPELLANT WITHOUT PROB¬ABLE CAUSE, CONTRARY TO [THE] HOLDINGS OF MATTHEWS,[ ] CARSTARPHEN[ ] AND J.L.
The scope of our review is limited. "We do not weigh the evidence, assess the credibility of witnesses, or make conclu¬sions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made could rea¬sonably have been reached on sufficient credible evidence pre¬sent in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwar¬ranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (citations omitted).
However,
Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. See State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference")); see also State v. Brown, 118 N.J. 595, 604 (1990).
[State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).]
The Fourth Amendment of the United States Constitution pro¬vides that "[t]he right of the people to be secure in their per¬sons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . ." U.S. Const. amend. IV; see also N.J. Const. art. 1, ¶ 7; State v. Maristany, 133 N.J. 299, 304 (1993). "[S]earch warrants are strongly favored under the Federal and [New Jersey] constitutions," State v. Malik, 221 N.J. Super. 114, 118 (App. Div. 1987), and we may not lightly dispense with "'[t]he requirement that a search war¬rant be obtained before evidence may be seized,'" State v. Cooke, 163 N.J. 657, 664 (2000) (quoting State v. Alston, 88 N.J. 211, 230 (1981)). In fact, "[a] warrantless search is pre¬sumed invalid unless" the State can establish that the search fell "within one of the recognized exceptions to the warrant requirement." Ibid. (emphasis added); see also State v. Wilson, 178 N.J. 7, 12 (2003). It may only be found valid if "'it falls within one of the recognized exceptions to the warrant require¬ment.'" State v. Moore, 181 N.J. 40, 44 (2004) (quoting Cooke, supra, 163 N.J. at 664). In that case, "[t]he State, as the party seeking to validate the warrantless search, 'has the burden of proving the validity of the search.'" Id. at 44-45 (quoting State v. Maryland, 167 N.J. 471, 489 (2001)).
Not all warrantless searches and seizures are constitution¬ally unreasonable. Our Supreme Court in State v. Hill, 115 N.J. 169, 173-74 (1989), enumerated eleven exceptions to the require¬ment of a warrant before searching or seizing an item or a per¬son, including community caretaking, Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); plain view, Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); searches incident to arrest, Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); and evolving principles relating to automo¬bile searches, Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 2d 543 (1925).
A law enforcement officer may conduct a field investigation under Terry when the officer has an objective, articulable, and reasonable basis to believe the subject was armed and dangerous, Roach, supra, 172 N.J. at 27, "so long as the officer does not deny the individual the right to move." State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 131 (1973). In Terry, the Court held that "a police officer may in appropriate circumstances . . . approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest," Terry, supra, 392 U.S. at 22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 908, and may conduct a reasonable search for weapons if he is "justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," id. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908.
"[T]he level of reasonable suspicion necessary to justify an investigatory stop is 'something less than the probable cause standard needed to support an arrest.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting State v. Thomas, 110 N.J. 673, 678 (1988)). "There must be 'some objective manifestation that the suspect was or is involved in criminal activity.'" Ibid. (cita¬tions omitted). In evaluating the factual basis for such a suspicion, courts are to give weight to "the officer's knowledge and experience" as well as "rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." Id. at 10. This evalua¬tion depends on the totality of the circumstances known by the officer at the time, State v. Stovall, 170 N.J. 346, 361 (2002), and requires the court to "'balanc[e] the State's interest in effective law enforcement against the individual's right to be free from unwarranted and/or overbearing police intrusions.'" State v. Caldwell, 158 N.J. 452, 459 (1999) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).
An anonymous tip should be considered as one factor in this evaluation because "a descriptive tip by an informant may con¬tribute to a reasonable objective and particularized suspicion to serve as the basis for an investigatory stop." Stovall, supra, 170 N.J. at 361. However, an "anonymous tip standing alone cannot justify a Terry stop." State v. Richards, 351 N.J. Super. 289, 303 (App. Div. 2002).
In J.L., as here, "the officers' suspicion that J.L. was car¬rying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller." J.L., supra, 529 U.S. at 270, 120 S. Ct. at 1378, 146 L. Ed. 2d at 260. The tip did not demonstrate that the caller was honest or reliable as it was a mere anonymous report of "a young black male standing at a particular bus stop and wearing a plaid shirt . . . carrying a gun." Id. at 268, 120 S. Ct. at 1377, 146 L. Ed. 2d at 258-59. The Court acknowledged that its juris¬prudence has permitted officers to act upon anonymous tips, "suitably corroborated," where the tip "exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" Ibid. (citing Alabama v. White, 496 U.S. 325, 327, 110 S. Ct. 2412, 2414, 110 L. Ed. 2d 301, 306 (1990) (where police surveillance corroborated the tipster's accurate prediction of the suspect's future behavior)). It characterized White as "a close case" and concluded:
The tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court's decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibil¬ity. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J. L. of engaging in unlawful conduct: The reason¬ableness of official suspicion must be meas¬ured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who nei¬ther explained how he knew about the gun nor supplied any basis for believing he had inside information about J. L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.
[Id. at 271, 120 S. Ct. at 1379, 146 L. Ed. 2d at 260-61.]
In Richards, the police received an anonymous telephone call reporting "'that three black males' were involved in 'nar¬cotics transactions' [and] that 'two . . . were standing in front of 15 [Martin Luther King Avenue],' and 'a third male . . . was on the pay phone at Number 60 Abbett Avenue,' [and] one of the men was 'supposedly car[ry]ing a .22 caliber handgun.'" Richards, supra, 351 N.J. Super. at 294. No physical descriptions were given and no information concerning the informant was conveyed by the dispatcher to the arresting officer. Ibid.
The officers went to 60 Abbett Avenue and observed a black male using the pay phone. Id. at 295. Neither of the officers recognized defendant from any prior encounters. Ibid. They advised the man of the report they had received; defendant did not react or make any furtive gestures. Id. at 296. They asked him for identifica¬tion, but he did not respond. Ibid. They instructed him to go to the police car and put his hands on the hood of the car so they could conduct a pat-down of his outer clothing. Ibid. When he started to put his hand in his pocket, an officer took hold of his arm and instructed him to keep his hands in plain view. Ibid.
When they reached the police car and the officer released defendant's arm, he again reached for his pocket, which alarmed the officer that he might be trying to get a gun. Ibid. At that point, defendant began to loudly pro¬test and continued to do so despite the officer's instructions to lower his voice or face arrest for disorderly conduct. Ibid. The police then advised him that he was under arrest and he again began to reach for his pocket. Ibid. He was then handcuffed, searched, and found in possession of cocaine and mari¬juana. Id. at 297. We observed that "[d]efendant was sim¬ply a man talking on a public telephone late at night who was approached by a police officer on an anonymous tip containing no descriptive content given by a person with no track record as an informant" and concluded that the anonymous tip, alone, could not justify the Terry stop in question. Id. at 303.
Had defendant here been standing on the corner of Jefferson and Oakland, the tip alone would not support a Terry stop. Defendant's black jacket and bandanna were not more descriptive than J.L.'s plaid shirt. There was no predictive content to the tip; no basis for the tipster's knowledge; and no track record for the tipster's veracity. But that is not what happened here. Rather, when the police arrived on the scene at 97 Jefferson Avenue, they observed a minivan stopped in the roadway, which created a reasonable and justifiable suspicion of a violation of N.J.S.A. 39:4-138, prohibiting the operator of a vehicle from standing the vehicle "[o]n the roadway side of any vehicle stopped or parked at the edge or curb of a street." Thus, the investigatory stop of the vehicle was proper under Terry. State v. Cerefice, 335 N.J. Super. 374, 384 n.4 (App. Div. 2000) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); Locurto, supra, 157 N.J. at 470; State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). Indeed, because the police observed the motor vehicle violation, they had probable cause to stop the vehicle and cite the driver. See, e.g., Smith, supra, 306 N.J. Super. at 380.
As a consequence, we must determine whether the police action in opening the minivan's door and removing defendant from the minivan was constitutional. "Under ordinary circumstances, '[w]hen the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by the police for additional questioning.'" State v. Chapman, 332 N.J. Super. 452, 463 (App. Div. 2000) (quoting United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993) (internal quotation and citation omitted). Neither may the police ask the passengers for identification, remove them from the vehicle, or frisk them without any reasonable grounds to suspect criminal activity. Hornberger v. Am. Broad. Cos., 351 N.J. Super. 577, 614 (App. Div. 2002).
Squarely on point is State v. Woodson, 236 N.J. Super. 537 (App. Div. 1989). In Woodson, the defendant was stopped by two State Troopers on the New Jersey Turnpike after his automobile was clocked at seventy m.p.h. Id. at 538. Trooper McHugh approached the defendant's automobile and, without any preliminary attempt to communicate with the two occupants, opened the passenger-side door to speak with the defendant driver. Id. at 539. When he opened the door, an open can of beer, "which had been resting between the front seat and the passenger's door," fell out of the car. Ibid. Because the open can of beer constituted a violation of N.J.S.A. 39:4-51a, Trooper McHugh conducted a search of the interior compartment of the car. Ibid. During the search, he found a clear plastic bag that he reasonably believed to contain marijuana. Ibid. He then ordered the passenger and the defendant out of the car and conducted a more thorough search, which revealed more controlled dangerous substances. Ibid.
During the suppression hearing, the trial judge found, contrary to the State's assertions, that "the opening of the car door constituted a warrantless search which did not come within any of the recognized exceptions to the rule requiring the suppression of evidence seized during the course of such a search." Ibid. (citing State v. Ercolano, 79 N.J. 25, 42 (1979); State v. DeLorenzo, 166 N.J. Super. 483, 487-88 (App. Div. 1979)). On appeal, the State argued that "the difference between ordering occupants out of a car on the one hand and opening a car door on the other is meaningless and should not control the outcome of this appeal." Id. at 540. We disagreed.
As we explained in Woodson, "[t]here is a significant difference between ordering one out of a car and opening a car door without warning." Ibid. Ordering an occupant out of the car gives the occupant an opportunity to safeguard from public view that as to which he has a real privacy interest. Ibid. Conversely, "[s]uddenly opening a car door is unconstitutionally intrusive because the police officer thereby surprises the occupant when the latter is entitled to consider his private affairs secure from outside scrutiny." Id. at 540-41. We concluded that the "plain view" exception to the search warrant requirement was inapplicable because it applies "only where the officer is lawfully in the viewing area" and the evidence was inadvertently discovered. Id. at 541.
Here, the officers expressed concern for their safety as a basis for ordering defendant to step out of the minivan, but the totality of the circumstances does not suggest any basis for such a concern. Although they saw the occupants of the vehicle moving about, they did not testify that their movements were furtive. They did not testify to any conversation with the driver or any occupant of the minivan, and thus had no cause for concern based on anything the occupants of the vehicle said to them, unlike State v. Baum, 393 N.J. Super. 275, 287-88 (App. Div.), certif. dismissed, 192 N.J. 473 (2007). Indeed, they did not even speak to the driver before opening the right rear door and ordering defendant out of the minivan. They also did not testify that the individuals outside the vehicle did or said anything to cause them to fear for their safety. Thus, the only basis they articulated for their safety concerns was the anonymous tip.
We examine the expressed concern for the officers' safety from the perspective of a reasonable police officer in the particular circumstances. State v. Daniels, 264 N.J. Super. 161, 165 (App. Div. 1993) (citing State v. Lund, 119 N.J. 35, 37, 45 (1990)). "The test is 'whether a reasonably prudent police officer in the circumstances presented would be warranted in the belief that his safety was in danger.'" State v. Johnson, 274 N.J. Super. 137, 154 (App. Div.) (quoting State v. Kennedy, 134 N.J. Super. 454, 458 (App. Div. 1975)), certif. denied, 138 N.J. 265 (1994). In evaluating the officers' concern for their safety, we must give weight to both an officer's knowledge and experience and "'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.'" Cald¬well, supra, 158 N.J. at 461 (quoting Arthur, supra, 149 N.J. at 10-11). Thus, we must determine whether the officers' belief that defendant was armed and dangerous was reasonable in the circumstances. State v. Garland, 270 N.J. Super. 31, 42 (App. Div.), certif. denied, 136 N.J. 296 (1994).
In this case, we are satisfied that the officers' safety concern was not reasonable because it was based solely on the anonymous tip that, standing alone, could not even justify a Terry stop, much less justify a sudden and intrusive opening of the door and an instruction to step out of the vehicle. Had the door not been opened and defendant not been ordered out of the minivan, the gun would not have been in plain view and, thus, no other exception to the requirement for a warrant existed in this case. The evidence seized from the minivan and from defendant's person should have been suppressed under Wong Sun.
Reversed and remanded for proceedings consistent with this opinion.
Richard Sadowski
Assistant Editor
