Opinion
DOCKET NO. A-3319-09T2
05-21-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MALCOLM D. LUCAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Skillman.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 08-11-2744 and 09-06-0219.
Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant was indicted for possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b), and possession of a weapon by a convicted felon, in violation of N.J.S.A. 2C:39-7. Defendant filed a motion to suppress the evidence upon which these charges were based, which the trial court denied. Defendant then pled guilty pursuant to a plea bargain to the charge of possession of a weapon by a convicted felon. The trial court sentenced defendant in accordance with that plea bargain to a five-year term of imprisonment without eligibility for parole.
The court sentenced defendant at the same time to a concurrent eighteen-month term for a charge in a separate indictment of possession of marijuana with the intent to distribute, to which defendant pled guilty as part of the same plea bargain. That conviction would not be affected by the denial of defendant's motion to suppress, which is the sole subject of this appeal.
Defendant appeals from the denial of his motion to suppress. That denial was based on the evidence presented at a three-day hearing, which can be briefly summarized.
The handgun that defendant pled guilty to unlawfully possessing was discovered in plain view in a car in which defendant was riding as a passenger. Two Atlantic City police officers observed the driver fail to stop at a stop sign around 1:30 a.m. on August 30, 2008 and then suddenly stop on a highway at a green light. Based on these observations, the officers pulled over the car for motor vehicle violations.
After the officers got out of their car and asked the driver for his driving credentials, one of the officers pointed his flashlight into the car and observed the butt of a handgun in the map compartment behind the passenger front seat. The officers then ordered the driver, defendant and other occupants to get out of the car and handcuffed them. In accordance with Atlantic City police department procedures, the officers who had made the motor vehicle stop called "forensic detectives" to come to the scene and remove the gun from the car. Those officers arrived about twenty minutes later, seized the gun, and brought it to police headquarters. Except for the entry into the car to seize the gun, no other search was made at that time.
Defendant presented testimony by the driver and other occupants of the car, who offered a significantly different version of the stop of the car and discovery of the handgun that defendant was found to have unlawfully possessed. However, the trial court found their testimony to be incredible and instead credited the testimony of the police officers who stopped the car and discovered the handgun in plain view.
The court determined that that stop was valid because it was based on an articulable, reasonable suspicion that the driver had committed motor vehicle violations. The court also found that one of the officers observed the handgun in plain view in the map compartment of the rear portion of the backrest of the front passenger seat. The court concluded that under these circumstances it was permissible for the police to seize the handgun without first obtaining a warrant. Accordingly, the court denied defendant's motion to suppress.
On appeal, defendant does not challenge the trial court's factual finding that the police officers observed the driver of the car in which defendant was riding commit apparent motor vehicle violations, which justified the stop. Defendant also does not challenge the court's finding that one of the officers observed what appeared to be the butt of a handgun in a compartment behind the passenger seat. In any event, we are satisfied those findings are fully supported by the evidence presented at the hearing on defendant's motion to suppress.
Defendant's sole argument is that the police were required to obtain a warrant before entering the car to seize the gun they had observed from outside the car in plain view. In support of this argument, defendant relies primarily upon State v. Pena-Flores, 198 N.J. 6, 11 (2009), in which the Court reaffirmed that the police may conduct "an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement." However, the police in this case did not conduct a search of the car in which defendant was riding. Rather, they discovered the handgun upon which defendant's conviction was based by observing the gun in plain view while they were standing outside the car. Such an observation does not constitute a search. See State v. Foley, 219 N.J. Super. 210, 215-16 (App. Div. 1987). Therefore, the automobile exception to the warrant requirement interpreted in Pena-Flores has no applicability to this case.
Instead, this case involved an entry into the car for the sole purpose of seizing a handgun the police had reason to believe the occupants did not have a permit to carry, which had been revealed without a search. A warrant is not required for such a seizure of evidence or contraband discovered in plain view. See State v. Mann, 203 N.J. 328, 341 (2010); State v. Mai, 202 N.J. 12, 25 (2010). Moreover, even assuming that a showing of exigent circumstances was required in order to enter the car in which defendant had been riding to seize the handgun, we would conclude, substantially for the reasons stated by the trial court, that such exigent circumstances existed once the police observed the handgun and that this exigency continued for the twenty-minute period until the arrival of the forensic detective who seized the gun. See also State v. O'Donnell, 203 N.J. 160, 162 (2010) (noting that "[w]hen determining the propriety of a warrantless seizure, '[t]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'" (quoting State v. Bogan, 200 N.J. 61, 81 (2009)).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION