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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. JOSE M. VEGA, a/k/a JOSE VEGA, a/k/a JOSE MIGUEL VEGA, a/k/a PABLO AVENTURA, Defendant–Appellant.

DOCKET NO. A–0410–12T4

    Decided: April 17, 2014

Before Judges Harris and Guadagno.Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

After the denial of his motion to suppress a handgun found in the back seat of a car he was driving, defendant Jose M. Vega entered a guilty plea to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5(b).  On appeal, defendant presents one argument:

point one

the trial court improperly denied defendant's motion to suppress evidence.

For the reasons that follow, we affirm.

On August 30, 2008, at approximately 10:15 p.m., Bayonne Police Officers George Ponik and David Bacarella observed a 1999 four-door Acura stopped at a traffic light.   The Acura had an expired inspection sticker and tinted windows, and the officers stopped the vehicle because of suspected motor vehicle code violations.1

Bacarella approached the driver's side of the Acura while Ponik came to the passenger side.   Bacarella advised defendant, who was driving the Acura, why he had been stopped and requested his motor vehicle credentials.   Ponik described defendant as “extremely, extremely nervous talking to [Officer] Bacarella about handing over paperwork[.]”  The front window on the driver's side was open but the other three were closed.   As Ponik could not see into the vehicle, he asked defendant to roll down the other windows.   After all four windows were lowered, Ponik illuminated the interior of the Acura with his flashlight “to make sure there were no weapons.”   The middle armrest on the rear seat was slightly ajar and Ponik could see the handle and part of the barrel of a silver handgun inside.   Ponik notified his partner that he spotted a gun and reached into the car to grab it.   Bacarella arrested and handcuffed defendant.   When the officers returned to the station, Ponik unloaded the gun and removed two regular and seven hollow-point bullets.

A Hudson County grand jury returned an indictment charging defendant with second-degree possession of a handgun and fourth-degree possession of hollow-point bullets.   Ponik was the only witness to testify at the hearing on defendant's motion to suppress.

The Law Division found Ponik to be “extremely credible” and ruled that the stop of defendant's vehicle was proper based on the officers' observation of the expired inspection sticker and tinted windows.   The court also found nothing wrong with requiring defendant to roll down the windows for the officers' safety.   Finally, the court found that the illumination of the interior of the Acura with Ponik's flashlight was permissible to look for contraband in plain view.

On appeal, defendant argues that the court erred in denying his motion to suppress.   He concedes that the initial stop was proper but claims there was no justification for further inspection of the interior of the Acura.   We disagree.

Once the police observed the expired inspection sticker and tinted windows on the Acura, they had a reasonable and justifiable suspicion of a violation of the traffic laws and had probable cause to stop and cite the driver.   See State v. Mai, 202 N.J. 12, 19 (2010) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889 (1968)).   The crux of this appeal is whether the police action in ordering defendant to lower his windows, which led to the illumination of the back seat and seizure of the handgun, was permissible.

The Law Division accepted Officer Ponik's explanation that the command to roll down the windows was done to protect the officers' safety.   Ponik testified that as he “walked up to the passenger side, [Officer] Bacarella was speaking to [defendant], and as for our safety, we couldn't tell if there was another or further passengers in the vehicle because of the tint.”   Ponik concluded that the combination of the tinted windows and defendant's nervous behavior “heightened our suspicions that there was something wrong.”

Considering the totality of the circumstances, we are satisfied that the officers' concern for their safety was reasonable and the command to lower the passenger and two rear windows was an appropriate precaution.   We note that, but for the illegal tinting, it is likely that Ponik would have had an unobstructed view of the back seat armrest, even with the windows rolled up.   Ponik confirmed that even if defendant's car did not have tinted windows, it would have been “standard procedure” to use his flashlight to illuminate the interior for the safety of the officers.

“[T]raffic stops may be dangerous encounters[ ]” and “the fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.”  Maryland v. Wilson, 519 U.S. 408, 413, 117 S.Ct. 882, 885, 137 L. Ed.2d 41, 47 (1997).   Ponik testified that when he approached defendant's vehicle, the tinted windows prevented him from determining whether there were any additional passengers in the car.   That fact justified the objectively reasonable belief that, as a precautionary measure, the tinted windows had to be lowered.   Under these circumstances, both the lowering of the windows and the illumination of the interior of the vehicle were proper and lawful.   Once Ponik spotted the gun protruding from the armrest, the seizure of the fully loaded weapon was proper under the “plain view” doctrine.   See State v. Bogan, 200 N.J. 61, 79 n.10 (2009);  State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L. Ed.2d 695 (1984).



FN1. N.J.S.A. 39:8–9 requires that motor vehicles be examined and display a certificate of approval.  N.J.S.A. 39:3–74 prohibits “non-transparent material upon the front windshield ․ or front side windows” of a vehicle..  FN1. N.J.S.A. 39:8–9 requires that motor vehicles be examined and display a certificate of approval.  N.J.S.A. 39:3–74 prohibits “non-transparent material upon the front windshield ․ or front side windows” of a vehicle.


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