State v. Gamble

• Decision Date: 29 July 2014
• Citation: 218 N.J. 412,95 A.3d 188
• Court: New Jersey Supreme Court
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Kevin GAMBLE, Defendant–Respondent.

218 N.J. 412

95 A.3d 188

STATE of New Jersey, Plaintiff–Appellant,

v.Kevin GAMBLE, Defendant–Respondent.

Supreme Court of New Jersey.

Argued May 5, 2014.

Decided July 29, 2014.

Frank Muroski, Deputy Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General, attorney; Mr. Muroski and Brian J. Uzdavinis, Deputy Attorney General, on the briefs).

Susan Brody, Deputy Public Defender II, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney).

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 car.

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 investigatorystop, Terry¹ 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.

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 interior. 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 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 view during a lawful investigative stop, and even if it was not in plain view, it was properly seized during a limited protective search of the van that was reasonable under the totality of circumstances.

The Appellate Division reversed defendant's conviction, concluding that no exception to the warrant requirement permitted the search of the van and the seizure of the handgun. The appellate panel held that, although the totality of the circumstances and evidence may have given the police officer a suspicion or a hunch that criminal activity was afoot, reasonable suspicion to support a stop demanded more. The panel concluded that defendant's furtive movements, accompanied only by a report of individuals with a gun in a tan van and defendant's attempts to reenter the van, were not enough to support a reasonable belief that defendant was dangerous and that the vehicle might contain a weapon accessible to defendant or his passenger. Accordingly, the panel held that the protective frisk was not permissible. Further, the panel found that there was no evidence in the record demonstrating the officer viewed the handgun in the console prior to entering the van. Therefore, because the officer was not lawfully in the viewing area, the plain view exception was not applicable. The panel also rejected the application of the automobile exception to the warrant requirement.

The State filed a petition for certification, which this Court granted. State v. Gamble, 213 N.J. 389, 63 A.3d 228 (2013).

III.

A.

The State argues that the search of the van was justified either as a limited protectivefrisk or as a plain view seizure.³ First, the State maintains that the totality of the circumstances, specifically, the 9–1–1 calls, the location of the van, and the frantic movements of the occupants, created sufficient reasonable suspicion to justify an investigatory stop. Second, the State contends that these factors, together with the driver's attempt to reenter the van and the fact that the occupants of the van would have been allowed to reenter after the stop, created sufficient reasonable suspicion to justify a limited vehicle protective frisk.

The State points to the recent United States Supreme Court decision in Navarette v. California, 572 U.S. ––––, ––––, 134 S.Ct. 1683, 1689–90, 188 L.Ed.2d 680, 688–89 (2014), where the Supreme Court held that the use of the 9–1–1 emergency system was an “indicator of veracity,” because its safeguards and features permit identification of callers. The State contends that Navaret...