STATE OF NEW JERSEY v. AL TOREEK JOHNSON (2011)

Defendant Al–Toreek Johnson appeals from a final judgment of conviction for second-degree unlawful possession of a firearm based on his conditional plea, following denial of his motion to suppress the handgun.   Defendant was sentenced as a third-degree offender to three years in prison without parole to run concurrently with a sentence to be imposed on another offense in a different county.   Because the motion to suppress was properly denied, we affirm.

Detective Michael Morgan from the Newark Police Department's Criminal Gang Enforcement Unit was traveling on Market Street as a front-seat passenger in an unmarked police vehicle on August 1, 2008, at about 8:00 p.m. He, along with Sergeant Constantino, the driver, and Detective Garcia, the rear-seat passenger, stopped behind a green taxi cab.   The cab was occupied by three males in the back seat with defendant sitting to the left and co-defendant Tyquan Hudley sitting to the right.   Morgan observed defendant display a silver .38 caliber revolver and point it at the two other passengers.   The situation did not appear to be threatening as all three passengers were joking and laughing.   The gun was in view only briefly and then, Morgan believed, defendant placed it back in his waistband.   The passenger in the middle displayed a Crips hand signal.

At the next traffic light, all three officers exited their vehicle, approached the cab, displayed their badges and shouted, “Police.”   Morgan then opened the driver's side rear door and saw defendant grab at his waist.   The officer quickly swiped at defendant's waistband and removed a .38 caliber handgun.   Although Hudley made no movements, Garcia grabbed him at the waist and recovered a 9 mm Glock handgun from him.

Defendant was arrested and subsequently indicted for the weapons offense.   Defendant moved to suppress the gun seized from him, arguing that Morgan lacked reasonable suspicion that he had a handgun in his waistband.   He contended that Morgan grabbed his waistband before Morgan noticed the gun.

In denying the motion to dismiss on July 14, 2009, Judge Garry J. Furnari noted that the State had the burden to prove that there was probable cause for the search and that a warrant was not required.   He found that Morgan was credible, that defendant displayed the gun in the rear seat of the car, and that Morgan observed that act.   He found that the officer walked over to the taxi, reached down to conduct a pat down of defendant, who was the person displaying the gun in the taxi, felt the gun, yelled that there was a weapon, and “had every right to grab that weapon.”   He also found that Morgan “had every right to search this defendant without patting him down if he so chose after making the observations of a weapon being in the possession of that individual.”   The judge concluded, “I can see nothing about this search that would be in violation of the Fourth Amendment to the United States Constitution, Article 1, Paragraph 7 of the New Jersey Constitution and, therefore, the motion to suppress is denied.”   Defendant thereafter entered his conditional plea on September 21, 2009, and was sentenced the following month.   This appeal followed.

Defendant raises the following issue for our consideration:

POINT I—THE TRIAL JUDGE ERRED IN FAILING TO GRANT THE MOTION TO SUPPRESS THE HANDGUN SEIZED WITHOUT A WARRANT.

More specifically, defendant urges that Morgan “had no right to open the cab door and seize ․ defendant's waistband.”   He urges that Morgan seized him before noticing the gun in his waistband.   As a consequence, he contends that Morgan lacked reasonable suspicion and violated defendant's constitutional rights.   He further asserts that Morgan had only “a generalized suspicion that there may be a weapon in the taxi cab,” whereas the Fourth Amendment requires “ ‘individualized, rather than generalized, suspicion,’ ” quoting State v. Davila, 203 N.J. 97, 129 (2010).

We disagree.   Morgan clearly had far more than a suspicion.   He made an actual observation of defendant in possession of a gun.   He also observed the passenger in the middle seat throw a Crips hand signal, which was sufficient to lead Morgan to conclude that defendant probably was not licensed to carry the handgun.   Having probable cause, and being faced with the exigent circumstance of a moving motor vehicle, and needing to ensure officer safety, Morgan properly retrieved the handgun from defendant and placed him under arrest.   Defendant was not entitled to have the handgun suppressed.

Defendant's arguments are without sufficient merit to warrant any further discussion in this opinion.   R. 2:11–3(e)(2).   We affirm substantially for the reasons expressed by the trial judge in his oral opinion delivered on July 14, 2009.   His findings and conclusions are supported by substantial, credible evidence in the record of the motion to suppress.  State v. Locurto, 157 N.J. 463, 471 (1999).

Affirmed.

PER CURIAM