Unlawful Possession for Weapon Protective Sweep by police at scene of Motor Vehicle Stop

There must be specific and articulable facts that, at the time of the search of a vehicle, a person is capable of gaining immediate control of a weapon or weapons

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

State v. Ortiz  New Jersey Appellate Division May 6, 2019 (Not Approved for Publication)

Facts:

The salient evidence adduced during the suppression hearing was as follows. The State’s sole witness, Detective Thomas Delmauro, testified that on May 10, 2015, the Newark Police Department received an anonymous tip that an African-American male in his mid-twenties was carrying a firearm in the area of Hunterdon Street in Newark. The caller said the man had dreadlocks, was wearing a white T-shirt, was driving a white Ford Expedition with New Jersey license plates that bore a specific number, and that the vehicle was on Hunterdon Street near Avon Avenue.

Around noon that day, Delmauro drove to that area in an unmarked vehicle, parked, and commenced his surveillance. Two other detectives, Laurie and Santiago, were dispatched at the same time in a separate unmarked police vehicle. When Delmauro arrived, he found the Expedition described by the caller parked on Hunterdon Street. Delmauro parked across the street from the Expedition, and the other two officers parked one block away on Avon Avenue, which ran perpendicular to Hunterdon Street. Laurie and Santiago were the designated “take-down unit.”

Within several minutes, Delmauro saw a person fitting the description provided by the caller on Hunterdon Street. That person was later identified as defendant. Delmauro repositioned his car, parking directly in front of the Expedition. Defendant subsequently got into the driver’s seat of the Expedition.

Looking through the rear-view window of the surveillance car and into the windshield of the Expedition, Delmauro observed defendant handling a handgun that was black and khaki in color. He also saw defendant reach toward what Delmauro assumed was the glove compartment. Defendant then leaned back into the driver’s seat, where he remained until Ahmad Manns, a man later identified as defendant’s cousin, got into the Expedition and sat in the front passenger’s seat. Delmauro called the other detectives and advised that defendant had put a gun in the glove compartment of the Expedition, and Delmauro would let them know when defendant drove off. Defendant then made a K-turn on Hunterdon Street and headed toward Avon Avenue.

Delmauro followed the Expedition and called the other detectives to advise that defendant was headed toward them and to stop defendant’s vehicle. Delmauro parked his car and walked to the spot where the other two detectives were conducting the stop. By then, defendant and Manns were standing at the rear of the Expedition; one detective was standing next to defendant and the other next to Manns.

The passenger door to the Expedition was open, so Delmauro reached in and opened the glove compartment, where he saw the gun he had previously observed defendant handling, along with the registration and insurance card for the Expedition. However, Delmauro testified he went into the glove compartment to look for the gun and not for the registration and insurance card. In fact, Delmauro commented defendant was not stopped because of a motor vehicle violation but to investigate whether there was a gun in the car.

Delmauro was questioned about but unable to provide any conclusive testimony concerning whether defendant and Manns were handcuffed before Delmauro opened the glove compartment. When asked on direct examination what he did when he saw the gun in the glove compartment, Delmauro testified:

I notified [the other detectives] that, you know, the gun is in the glovebox, but I’m not sure, I think they had him in handcuffs already. I think they had him in handcuffs before I was walking up because I told them that, you know, I already saw the gun in the glovebox. So for their safety they might have handcuffed him already, but I can’t tell you for sure if they had him handcuffed before or after . . . .

On cross-examination, defense counsel questioned Delmauro as follows:

1. And before the search took place were the two occupants handcuffed?
2. I don’t recall if they were handcuffed at that point. Q. Where do you think — where were they?
3. They were in the rear of the vehicle. ….
4. And — but you didn’t see whether or not they were handcuffed?
5. I don’t recall if they were handcuffed. I don’t believe they were until I opened the glovebox, but I don’t recall for sure.
6. Who was with [defendant and Manns] when they were in the rear?
7. I believe Det. Laurie was with the driver, Mr. Ortiz[,] and I believe Det. Santiago was standing with Mr. Manns.

Defendant was ultimately arrested for possession of a weapon. Manns was not arrested because, while at the scene of the stop, defendant admitted he was the owner of the subject handgun.

We also considered whether the protective sweep exception applies in this matter. That exception authorizes the police to perform a warrantless protective sweep of the passenger compartment of a vehicle when the totality of circumstances support a reasonable suspicion that a driver or passenger is dangerous and may gain immediate access to weapons. State v. Gamble, 218 N.J. at 431-32. The burden is on the State to present specific and articulable facts that, considered with the rational inferences from those facts, support the application of this exception. Ibid.

The protective sweep exception in the automobile setting does not turn solely on the potential presence of a weapon in a vehicle. Instead, it addresses the imminent danger to police when a driver or passenger will be permitted access to a vehicle that may contain a weapon or may be in a position to evade or overpower the officers at the scene.

[Robinson, 228 N.J. at 548.]
In Robinson, the Court found the protective sweep exception did not

apply under the following facts. Late one evening in April 2012, a police officer on patrol noticed a car on the roadway that was being driven “unsafe[ly].” Id. at 536. The patrol officer activated his lights and conducted a motor vehicle stop. Ibid. The patrol officer obtained identifying information from the driver and his three passengers. Ibid. The dispatch officer subsequently informed the patrol officer that the driver had an outstanding warrant for a drug offense and was known to carry weapons. Id. at 536-37. In addition, one of the passengers had an outstanding traffic warrant. Ibid. The patrol officer called for backup and four officers arrived. Id. at 537-38.

The two occupants who had warrants were removed from the car, arrested and handcuffed; no weapons were found in their possession. Id. at 537-38. After they stepped out of the car, the officers frisked the other two occupants, who did not possess any weapons. They were detained, but not handcuffed, on the roadside and monitored by the officers. Id. at 538. There was no evidence any of the four occupants of the car reached for a weapon or any other object in the car, and none resisted the officers’ directions. Id. at 537-38.

One of the officers conducted a sweep of the interior of the car to check for weapons. Id. at 538. After searching the front driver and passenger areas, the officer picked-up a purse that was lying on the front passenger seat. Ibid. Feeling what he suspected was a handgun, the officer opened and discovered a handgun in the purse. Id. at 538-39. The police decided to seek a search warrant, and arranged to have the vehicle towed and impounded. Id. at 539.

The Court determined the protective sweep exception did not permit the police to search the car without a warrant. Id. at 549. The Court acknowledged that, given the dispatcher’s report, one could have had reasonable suspicion a weapon might be inside the vehicle, and the fact weapons were not found on the occupants when frisked did not remove the need for concern. Id. at 548 (citing Gamble, 218 N.J. at 432-33). However, the Court found the officers’ “swift and coordinated action eliminated the risk that any of the four occupants would gain immediate access to the weapon [in the purse on the front seat].” Id. at 535. Specifically, the Court noted:

Because [the officer who stopped the vehicle] summoned four backup officers, the officers outnumbered the occupants of the vehicle. The officers arrested, frisked, handcuffed, and took into custody the two individuals with outstanding warrants . . . . They directed [the other two occupants], who were cooperative, to an area away from the vehicle and carefully monitored them. The officers thus assumed and maintained control of the vehicle and the scene. In light of that prudent police work, none of the four occupants was given an opportunity to return to the car. None was in a position to gain access to any weapon – the handgun in the vehicle, or the officers’ service weapons – as might have happened had [the initial patrol officer] attempted to conduct the traffic stop alone, or with a single partner. In short, the record did not reveal specific and articulable facts that, at the time of [the] search of the vehicle, would reasonably warrant the conclusion that any of the vehicle’s four occupants was potentially capable of gaining “immediate control of weapons.”

Accordingly, we conclude that the search of the car was not within the protective sweep exception to the warrant requirement. The Court’s decision in Robinson underscores that, when determining whether the protective sweep exception applies, there must be specific and articulable facts that, at the time of the search of a vehicle, a person is capable of gaining immediate control of a weapon or weapons in the vehicle. A trial court must carefully consider the actual risk that exists. Whether that risk is present includes but is not limited to a consideration of the ratio of police officers to passengers; the ability of the police to keep passengers from entering a vehicle; and the passengers’ or passenger’s willingness to cooperate with the police.

Here, the trial court did not have the benefit of the Robinson opinion, decided approximately nine months after the trial court’s ruling. Therefore, we conclude the proper course of action is, in addition to remanding this matter for the reasons previously stated, remand this matter for the trial court to reconsider its ruling in light of the decision in Robinson. In the event the search of the glove compartment is found to be illegal under either one of the exceptions discussed, the trial court must also consider whether the doctrine of inevitable discovery applies. See State v. Sugar (Sugar II), 100 N.J. 214, 237 (1984). To reap the benefit of such doctrine, the State will have to show by clear and convincing evidence that:

(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.