Protective sweep permitted where shots fired in high
crime neighborhood. State v. Gamble 218 N.J
412 (2014)
Under
the totality of the circumstances, which provided the officers with a
reasonable and articulable suspicion that defendant was engaged in criminal
activity, the investigatory stop and protective sweep of the passenger
compartment of the van were valid.
State of New Jersey v. Kevin Gamble
(A-53-12) (071234)
Decided July 29,
2014
CUFF, P.J.A.D.
(temporarily assigned), writing for a unanimous Court.
In
this appeal, the Court considers the validity of a warrantless search of a van
and the seizure of a handgun from the van’s center console.
At approximately
11:00 p.m. on May 3, 2008, Irvington Police Officers Theodore Bryant and
Richard Santiago responded to a dispatch of “shots fired” in a high-crime
neighborhood. While patrolling the area, the officers received a second
dispatch in response to an anonymous 9-1-1 call reporting an individual seated
in a tan van with a gun in his lap. The officers spotted a tan van and parked
behind it. They directed a spotlight on the van, then exited the car with their
weapons drawn. Bryant saw the occupants moving frantically inside the van, “as
if trying to hide something.” He approached on the driver’s side and ordered
the occupants, defendant Kevin Gamble and co-defendant Terrell Wright, to exit
the van. Wright did so, but defendant started to and then retreated to the
driver’s seat. Fearing he might be trying to retrieve a weapon, Bryant struck
defendant and pulled him from the van. Finding no weapons on defendant, Bryant
began a search of the van. As he entered the vehicle, he noticed the handle of
a handgun protruding from the center console. Bryant then heard a commotion and
realized defendant was attempting to flee. After subduing and restraining
defendant, Bryant informed other officers about the gun, which was retrieved
from the van.
Defendant was charged with
second-degree unlawful possession of a handgun, third-degree receiving stolen
property (the handgun), and third-degree resisting arrest. He moved to suppress
the evidence recovered at the scene, arguing that the search was illegal
because no exception to the warrant requirement applied. The trial court denied
the motion. It found Bryant’s testimony credible and held that the totality of
the circumstances, including the fighting, defendant’s retreat back into the
van, and the report of shots fired, created a reasonable suspicion to
investigate. Moreover, the court found that the State met its burden because
the handgun was in plain view. Defendant pled guilty to second-degree unlawful
possession of a weapon and third-degree resisting arrest and was sentenced to
the statutory minimum of three year’s imprisonment with a three-year period of
parole ineligibility.
Defendant appealed, and the
Appellate Division reversed his conviction. The panel found that no exception
to the warrant requirement permitted the search of the van and the seizure of
the handgun. It concluded that, although the totality of the circumstances may
have provided police with a suspicion that criminal activity was afoot,
reasonable suspicion sufficient to support a stop required more. Thus, the
panel determined that the protective frisk was not permissible and that, since
there was no evidence demonstrating that Bryant saw the handgun in the console
prior to entering the van, the plain view exception to the warrant requirement
was inapplicable. The Court granted the State’s petition for certification. 213
N.J. 389 (2013).
HELD: Under the totality of the circumstances, which
provided the officers with a reasonable and articulable suspicion that
defendant was engaged in criminal activity, the investigatory stop and
protective sweep of the passenger compartment of the van were valid.
1. Appellate review of a decision on a
motion to suppress requires courts to uphold the factual findings underlying
the decision so long as they are supported by sufficient credible evidence in
the record. Reviewing courts should only reverse when the trial court’s
decision is so clearly mistaken as to require intervention in the interests of
justice. A trial court’s interpretation of the law and the consequences that
flow from established facts are not entitled to special deference and are
reviewed de novo.
In this appeal, the Court
considers the validity of a warrantless search of a van and the seizure of a
handgun from the van’s center console.
At approximately 11:00 p.m. on May 3, 2008, Irvington
Police Officers Theodore Bryant and Richard Santiago responded to a dispatch of
“shots fired” in a high-crime neighborhood. While patrolling the area, the
officers received a second dispatch in response to an anonymous 9-1-1 call
reporting an individual seated in a tan van with a gun in his lap. The officers
spotted a tan van and parked behind it. They directed a spotlight on the van,
then exited the car with their weapons drawn. Bryant saw the occupants moving
frantically inside the van, “as if trying to hide something.” He approached on
the driver’s side and ordered the occupants, defendant Kevin Gamble and
co-defendant Terrell Wright, to exit the van. Wright did so, but defendant
started to and then retreated to the driver’s seat. Fearing he might be trying
to retrieve a weapon, Bryant struck defendant and pulled him from the van.
Finding no weapons on defendant, Bryant began a search of the van. As he
entered the vehicle, he noticed the handle of a handgun protruding from the
center console. Bryant then heard a commotion and realized defendant was attempting
to flee. After subduing and restraining defendant, Bryant informed other
officers about the gun, which was retrieved from the van.
Defendant was charged with second-degree unlawful
possession of a handgun, third-degree receiving stolen property (the handgun),
and third-degree resisting arrest. He moved to suppress the evidence recovered
at the scene, arguing that the search was illegal because no exception to the
warrant requirement applied. The trial court denied the motion. It found
Bryant’s testimony credible and held that the totality of the circumstances,
including the fighting, defendant’s retreat back into the van, and the report
of shots fired, created a reasonable suspicion to investigate. Moreover, the
court found that the State met its burden because the handgun was in plain
view. Defendant pled guilty to second-degree unlawful possession of a weapon
and third-degree resisting arrest and was sentenced to the statutory minimum of
three year’s imprisonment with a three-year period of parole ineligibility.
Defendant appealed, and the Appellate Division
reversed his conviction. The panel found that no exception to the warrant
requirement permitted the search of the van and the seizure of the handgun. It
concluded that, although the totality of the circumstances may have provided
police with a suspicion that criminal activity was afoot, reasonable suspicion
sufficient to support a stop required more. Thus, the panel determined that the
protective frisk was not permissible and that, since there was no evidence
demonstrating that Bryant saw the handgun in the console prior to entering the
van, the plain view exception to the warrant requirement was inapplicable. The
Court granted the State’s petition for certification. 213 N.J. 389 (2013).
H_E_L_D_:_ _Under the totality of the circumstances, which provided the officers with a
reasonable and articulable suspicion that defendant was engaged in criminal
activity, the investigatory stop and protective sweep of the passenger
compartment of the van were valid.
1. Appellate review of a decision on a motion to
suppress requires courts to uphold the factual findings underlying the decision
so long as they are supported by sufficient credible evidence in the record.
Reviewing courts should only reverse when the trial court’s decision is so
clearly mistaken as to require intervention in the interests of justice. A
trial court’s interpretation of the law and the consequences that flow from
established facts are not entitled to special deference and are reviewed de
novo.
2. The right to
be free from unreasonable searches and seizures is guaranteed by the Fourth
Amendment to the United States Constitution and Article I, Paragraph 7 of the
New Jersey Constitution. A warrantless search is presumed invalid unless it
falls within one of the recognized exceptions to the warrant requirement, such
as the plain view exception. Law enforcement officers also are permitted to
conduct a limited protective sweep of a residence when necessary for safety
reasons, even absent probable cause to arrest. Such sweeps are only permissible
when officers are in the private premises for a legitimate purpose and possess
a reasonable articulable suspicion that the area to be swept contains a
dangerous individual. Similarly, officers may conduct protective sweeps of the
passenger compartment of a vehicle based on a reasonable belief that it
contains potentially dangerous weapons.
3. In many instances, the circumstances culminating in
a protective sweep commence with an investigatory stop. Both require a
reasonable articulable suspicion that the person to be frisked or the area to
be searched pose a danger to the officer. Specifically, police may conduct a
brief, investigatory stop if there is reasonable suspicion that the person being
stopped is engaged, or is about to engage, in criminal activity. This must be
based on specific and articulable facts, as well as rational inferences from
those facts, that reasonably lead the officer to believe the suspect is
dangerous and may gain immediate control of weapons. Reasonable suspicion may
not be solely based on a mere hunch or an anonymous tip. However, where an
anonymous tip is conveyed through a 9-1-1 call and contains sufficient
information to trigger public safety concerns and to provide an ability to
identify the person in question, police may undertake an investigatory stop
based on that information. Other factors that may give rise to reasonable
suspicion include nervousness and furtive gestures combined with other
objective facts, additional evasive action, lying to police, and the lateness
of the hour. When an investigatory stop is permissible, officers may also frisk
the individual.
4. The Court finds that the totality of the
circumstances created sufficient reasonable suspicion to justify the
investigatory stop of the van. Specifically, two anonymous calls were reported
on the night in question, at least one of which was placed through the 9-1-1
system. The tipster identified the vehicle’s color, type, and approximate
location, all of which were corroborated by officers on the scene. When
officers illuminated the vehicle, they observed behavior consistent with an
attempt to hide a prohibited item. These furtive gestures, the location of the
van, the late hour, and the 9-1-1 calls combined to create a reasonable
suspicion sufficient to justify an investigatory stop.
5. As for the legality of the subsequent frisk of the
occupants and search of the van, the Court explains that the totality of the
circumstances justifying the investigatory stop may also provide an officer
with a specific and particularized reason to believe a suspect is armed. Here,
in addition to those circumstances warranting the stop, defendant balked at
Bryant’s direction to exit the van. His retreat created the reasonable
suspicion that he was dangerous and could gain immediate access to a weapon,
specifically the handgun reported in the 9-1-1 call. The officers’ reasonable
concerns for their safety and the safety of others did not evaporate when they
failed to find a weapon on defendant or Wright. Rather, defendant’s behavior
enhanced the officers’ suspicion that there was a gun in the van that would be
within either occupant’s easy reach once they returned to the vehicle.
Accordingly, Bryant conducted a permissible, narrowly confined visual sweep of
the passenger compartment, which revealed a handgun protruding from the center
console. Since this search was a permissible protective sweep, the Court
declines to address the applicability of the plain view exception. (pp. 21-23)
6. The Court finds that the initial investigatory stop
of the van was justified under the totality of the circumstances. Similarly,
the officers’ decision to conduct a protective sweep of the van was
constitutionally permissible. Since no one factor was determinative, the Court
need not consider whether the 9-1-1 calls alone were sufficient to create a
reasonable suspicion of criminal activity. Rather, the totality of the
circumstances provided the requisite reasonable and articulable suspicion that
defendant was engaged in criminal activity, which permitted the investigatory
stop and the protective sweep of the van. (pp. 23-25)
The judgment of the Appellate Division is R_E_V_E_R_S_E_D_.
