STATE OF NEW JERSEY VS. MICHAEL KEE (17-11-3227, CAMDEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3793-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL KEE, a/k/a
MIKEY,
Defendant-Appellant.
_______________________
Submitted January 13, 2021 – Decided April 26, 2021
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 17-11-3227.
Joseph E. Krakora, Public Defender, attorney for
appellant (Gilbert G. Miller, Designated Counsel, on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Steven A. Yomtov, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Michael Kee appeals from his judgment of conviction,
challenging the denial of his motions to suppress. We affirm.
On March 1, 2017, at about 8:00 p.m., defendant, Tymera Green, Troy
Brown, and Brown's cousin left a home located at Fifth and Walnut Streets in
Camden, New Jersey. The group was celebrating defendant's birthday. Before
getting in the car, defendant told Green that he would be right back, then walked
with Brown around the corner. Green and Brown's cousin got into defendant's
silver Nissan Altima and waited. About five minutes later, Green heard a
gunshot moments before defendant and Brown came back to the car with their
hoods pulled over their heads.
Defendant got into the driver's seat, Brown got into the front passenger's
seat, and Green and Brown's cousin remained in the back. When they returned,
Green said the pair was frantic and defendant drove away at a high rate of speed.
After making a few turns, defendant turned to Green, gave her a handgun, and
instructed her to hold it. Green secured the gun under her shirt. The vehicle
was headed south on Fourth Street when it passed officers James DiMarco, Kyle
Cook, and Justin Widman of the Camden County Metro Police Department.
DiMarco, Cook, and Widman were standing near the intersection of
Fourth and Mechanic Streets. Each officer testified they observed the silver
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Nissan traveling south on Fourth Street at a high rate of speed. The speed limit
in the area was twenty-five miles per hour. As the vehicle passed, the officers
shined their flashlights on the pavement in front of it to signal the driver to slow
down. The car continued at the same rate of speed. DiMarco advised Cook and
Widman, who were conducting bicycle patrols, that he was going to stop the
Nissan. While walking toward his patrol car, DiMarco noticed the Nissan's
brake lights activate at the intersection of Fourth Street and Atlantic Av enue,
before turning left onto Atlantic. Cook and Widman testified the Nissan failed
to heed the stop sign at the intersection.
DiMarco, whose car was facing away from Fourth Street, proceeded down
Mechanic Street, turned right onto Broadway, and right again onto Atlantic
Avenue. Cook and Widman pursued the Nissan on their bicycles. They traveled
south down Fourth Street then made a left onto Atlantic. As they turned onto
Atlantic, Cook and Widman saw the Nissan stop and park on the side of the
road. Cook testified that defendant attempted to exit the vehicle after he parked.
DiMarco also saw the silver Nissan stop and park but was dispatched to a report
of a nearby shooting before reaching the car. Cook and Widman approached on
their bicycles and activated their body cameras as they initiated the stop.
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At the suppression hearing, the State produced video footage of the traffic
stop captured by Cook and Widman. The first thing that can be heard on the
video is the dispatcher requesting available officers to respond to the area of
Fourth and Mount Vernon Streets. Cook is shown standing on the driver's side
as he directs defendant to exit the vehicle, walk to the back, and keep his hands
on the top of the car. Cook asks "why are you driving so fast?" Defendant
responds that his girl and his little nephew are in the back seat.
While Widman is standing next to the front passenger window with his
flashlight trained on defendant's face, the following exchange occurred:
WIDMAN: Where you guys comin' [sic] from man?
DEFENDANT: What? Huh?
WIDMAN: Where yous [sic] coming from? Where?
COOK: Keep your hands on the car.
DEFENDANT: We just come from Walnut Street.
[DVD 1, Cook.]
Simultaneously, the following message can be heard over the radio:
DISPATCH: Fourth and Mount Vernon. We got a
report of a white Maxima, uh, crashed into another
vehicle. The uh, suspect. Okay, correction. The victim
was in the car. The white Maxima. Appears to be uh,
one shot to the uh, the chest.
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WIDMAN: Fifth and Walnut?
DEFENDANT: Right there on the –
COOK: Yo, this, it's where they're coming from.
WIDMAN: Huh?
COOK: That's where they're coming from.
DEFENDANT: It's not us though –
COOK: Keep your hands. Where do you live?
DEFENDANT: I live in Woodland.
COOK: In Woodland?
DEFENDANT: Yeah. I got my name and
(indiscernible) in the car.
COOK: What's your name?
DEFENDANT: My name Michael Kee.
[DVD 1, Cook; DVD 2, Widman.]
Cook directed defendant to sit on the curb then turned to Widman and
said:
COOK: This is where they're coming from.
WIDMAN: Huh?
COOK: That's where they're coming from, the shots
fired.
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DEFENDANT: We just left from right there because
they were shooting. We was at my friend's house on
Walnut Street.
COOK: What were you doing over there?
DEFENDANT: My brother live right there. We were
talking to my brother. And when we heard shots we
just pulled off, like, that shit scared us because they
almost shot us.
[DVD 1, Cook; DVD 2, Widman.]
Cook also asked defendant for his address, with whom he resided, and his
date of birth. Defendant answered. During that exchange, the following
messages can be heard over the radio:
UNIDENTIFIED SPEAKER: (Indiscernible) one
person shot in the chest.
UNIDENTIFIED SPEAKER: Hispanic male,
approximately (indiscernible) got at least one bullet
wound to chest. Uh, critical slash grave condition.
DISPATCH: Ten-four.
UNIDENTIFIED SPEAKER: (Indiscernible) younger
black male in a green hooded sweatshirt.
UNIDENTIFIED SPEAKER: You guys coming in? I
need that traffic blocked off at Fifth and Mount Vernon
ASAP.
[DVD 1, Cook; DVD 2, Widman.]
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Brown, a young black male wearing a Philadelphia Eagles hoodie,
matched the description that came over the radio. Widman responded:
WIDMAN: Bravo-six-eight. We have a vehicle
stopped. It's gonna [sic] be at Fourth and Atlantic.
They were fleeing the area. They were coming from
Fifth and Walnut they said. I have one individual in the
passenger's seat with a green Eagles hoodie.
[DVD 2, Widman.]
Defendant responded to the statement Widman made over the radio:
DEFENDANT: That's where we live at.
COOK: Stay there. Is there anything in the car?
DEFENDANT: Sir ain't [sic] nothing in the car, but my
information and everything in the kids (indiscernible).
COOK: How many people are in the car?
DEFENDANT: There's four people in the car. Me, the
passenger, and two people in the back.
WIDMAN: Where you guys going right now? Who
lives on this block?
BROWN: Nah, we just dropping my cousin off. Takin
[sic] my little cousin.
WIDMAN: Where?
BROWN: Out in Centerville.
WIDMAN: Centerville? This ain't [sic] Centerville.
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BROWN: We comin [sic] from my mom's house.
That's what I'm tellin [sic] you. That's what I said, we
coming from my mom's house. That's what I told you.
[DVD 1, Cook; DVD 2, Widman.]
At this point, backup arrived. The remaining occupants were removed
from the vehicle. Widman instructed Green to sit on the curb next to defendant.
She testified that while seated, defendant warned her not to say anything to the
police. Defendant told Green that she saw how easy it was for him to shoot
someone and threatened to kill her if she told on him.
Each passenger was placed into a different police vehicle. Defendant had
not been Mirandized.1 Green was placed into the back of a patrol car, uncuffed,
while her purse was placed in the front. The front of the vehicle was not
accessible from the back. Green testified that after about five minutes, she
removed the handgun from her shirt 2 and tucked it under the cushion of the
backseat. She did not inform anyone about the gun. When asked why she hid
the gun, Green responded "[b]ecause I didn’t want anything to do with it. I
didn’t want to hold it."
1
Miranda v. Ariz., 384 U.S. 436 (1966).
2
The record is unclear as to how Green secreted the gun under her shirt.
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Green sat in the back of the patrol car for approximately twenty minutes
before she was driven to a police station. She was not taken inside. Green
remained in the patrol car for some time before she was driven to the prosecutor's
office. At some point after leaving Atlantic Avenue but before reaching the
prosecutor's office, Green's phone was taken from her and placed in the front of
the patrol car where she could not access it. When she arrived at the prosecutor's
office, Green continued to wait in the back of the vehicle for a period of time
before she was eventually escorted inside and questioned for approximately two
hours. While being questioned, Green allowed detectives to download several
photographs from her phone. Green left the prosecutor's office at about 1:30
a.m.
The following morning, another officer was assigned the patrol car Green
was placed in the night before. While performing a pre-shift inspection of the
vehicle, he discovered the handgun underneath the back seat.
Defendant filed motions to suppress the roadside statements he made to
the police on the night of his arrest, as well as the handgun. He argued his
statements were taken while he was in custody and had not been given his
Miranda warnings, therefore they must be suppressed. He also argued that the
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police had no basis to conduct the traffic stop, and that the discovery of the
handgun was the product Green's illegal detention.
Evidentiary hearings were held on January 2, 2019, and January 10, 2019.
DiMarco, Cook, Widman, and Green testified on behalf of the State. Defendant
did not call any witnesses. On February 7, 2019, the motion judge issued a
written decision denying both motions.
The judge deemed the officers' testimony credible. He admitted
defendant's roadside statements, finding they were not taken in violation of
Miranda, but rather answers to appropriate questions associated with a routine
traffic stop. Based on the time of day and defendant's attempted departure from
the vehicle, the judge also found the instructions that were given and the limited
questions that were asked were intended to secure the scene and collect
biographical information. They were not intended to elicit incriminating
statements.
The judge found the alleged traffic violations justified the traffic stop
based on the officers' testimony. He also found defendant lacked standing to
challenge admissibility of the gun because he relinquished his interest in the
firearm by abandoning it, and that the exclusionary rule was inapplicable in this
case.
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On February 7, 2019, pursuant to a plea agreement, defendant plead guilty
to an amended count one, aggravated manslaughter, N.J.S.A. 2C:11-4(a). In
return, the State recommended a term of thirteen years' imprisonment, subject
to eighty-five percent parole ineligibility under the No Early Release Act,
N.J.S.A. 2C:43-7.2, followed by a five-year period of parole supervision. All
other counts were dismissed. Under the plea agreement, defendant preserved
his right to appeal the denial of the motion to suppress his roadside statements. 3
This appeal ensued.
Defendant raises the following points for our consideration:
POINT I
DEFENDANT'S STATEMENTS AT THE SCENE OF
THE ROADSIDE STOP WERE THE PRODUCT OF
UNWARNED CUSTODIAL INTERROGATION
AND SHOULD HAVE BEEN SUPPRESSED.
POINT II
THE HANDGUN DISCOVERED BY THE POLICE
UNDER THE REAR SEAT CUSHION OF THE
PATROL CAR IN WHICH TYMERA GREEN HAD
EARLIER BEEN LOCKED WAS SEIZED IN
CONTRAVENTION OF GREEN'S RIGHT TO BE
FREE FROM UNREASONABLE SEARCHES AND
3
Defendant's right to appeal the denial of his motion to suppress physical
evidence was automatically preserved. R. 3:5-7(d); see also State v. Greeley,
178 N.J. 38, 50-51 (2004) ("[O]nly motions for suppression on the grounds of
unlawful search and seizure automatically survive the entry of a guilty plea.").
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SEIZURES UNDER THE FEDERAL AND STATE
CONSTITUTIONS. U.S. CONST. AMEND. IV; N.J.
CONST. ART. I PAR. 7.
A. Standing
B. Green's Seizure and the Resultant Seizure of
the Gun
C. Exclusionary Rule
I
Our review of the trial court's decision on a motion to suppress is limited.
State v. Robinson, 200 N.J. 1, 15 (2009). "An appellate court reviewing a
motion to suppress evidence in a criminal case must uphold the factual findings
underlying the trial court's decision, provided that those findings are 'supported
by sufficient credible evidence in the record.'" State v. Boone, 232 N.J. 417,
425-26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 (2016)). We do so
"because those findings 'are substantially influenced by [an] opportunity to hear
and see the witnesses and to have the 'feel' of the case, which a reviewing court
cannot enjoy.'" State v. Gamble, 218 N.J. 412, 424-25 (2014) (alteration in
original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "The governing
principle, then, is that '[a] trial court's findings should be disturbed only if they
are so clearly mistaken "that the interests of justice demand intervention and
correction."'" Robinson, 200 N.J. at 15 (alteration in original) (quoting State v.
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Elders, 192 N.J. 224, 244 (2007)). "We owe no deference, however, to
conclusions of law made by trial courts in deciding suppression motions, which
we instead review de novo." State v. Brown, 456 N.J. Super. 352, 358-59 (App.
Div. 2018) (citing State v. Watts, 223 N.J. 503, 516 (2015)).
II
Defendant argues the statements he made to the police immediately after
he was pulled over must be suppressed because the officers failed to use the least
intrusive means necessary to carry out the traffic stop. Until the officers
received the transmission about the gunshot victim, they had no basis to use such
aggressive tactics. What should have been an innocuous traffic stop, defendant
contends, was transformed into an unlawful arrest when he was ordered to get
out of the vehicle, go to the back, and keep his hands on top of the car. By the
time reasonable suspicion arose justifying limited questioning regarding the
nearby shooting, defendant suggests he was already under arrest. Consequently,
because he had not received his Miranda warnings, defendant argues the
statements must be suppressed.
"General on-the-scene questioning as to facts surrounding a crime or other
general questioning of citizens in the fact-finding process" does not require
Miranda warnings. Miranda v. Ariz., 384 U.S. 436, 477 (1966). The United
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States Supreme Court, as well as our courts, have distinguished between
detaining a citizen in the course of an investigatory stop, pursuant to Terry v.
Ohio, 392 U.S. 1, 21-22 (1968), and placing a citizen in custody so as to trigger
Miranda requirements. See Berkemer v. McCarty, 468 U.S. 420, 435-442
(1984); State v. Smith, 374 N.J. Super. 425, 432-35 (App. Div. 2005).
An investigatory stop is characterized by a detention in which the person
approached by a police officer would not reasonably feel free to leave, even
though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J.
346, 355-56 (2002); see also Terry, 392 U.S. at 19. A police officer may
lawfully conduct an investigatory traffic stop, without a warrant, based on a
reasonable and articulable suspicion that the driver or any of its occupants have
committed a traffic violation. State v. Dunbar, 229 N.J. 521, 532-33 (2017).
In this case, we see no error in the motion judge's denial of defendant's
motion to suppress his roadside statements. Defendant argues he was placed
into custody when the traffic stop was initiated because he was pulled out of the
car and directed to stand near the back. Because he had not been given his
Miranda warnings, defendant argues the entire interaction must be suppressed.
However, "once a motor vehicle has been lawfully [detained] . . . the police
officers may order the driver to get out of the vehicle without violating the
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Fourth Amendment's proscription against unreasonable searches and seizures."
State v. Smith, 134 N.J. 599, 611-12 (1994) (quoting Pa. v. Mimms, 434 U.S.
106, 111 n.6 (1977)).
At the suppression hearing, officers DiMarco, Cook, and Widman each
testified they observed defendant's vehicle traveling at a high rate of speed down
a street with a twenty-five mile per hour speed limit. Cook and Widman also
testified that defendant failed to observe the stop sign at the intersection of
Fourth and Atlantic and exited the car after parking. Under these circumstances,
the officers' reasonable suspicion that defendant committed at least two traffic
violations justified the investigatory stop and brief detention.
Once the traffic stop was initiated, the police were justified in asking
"general on-the-scene question[s]" regarding the reason for the stop and were
not required to provide Miranda warnings. Miranda, 384 U.S. at 477.
"Typically, this means that the officer may ask the detainee a moderate number
of questions to determine his identity and to try to obtain information confirming
or dispelling the officer's suspicions." Berkemer, 468 U.S. at 439.
That is precisely what happened in this case. The officers conducted an
investigatory detention during which they inquired who the driver was, where
he was coming from, and why he was driving so fast. The questions were related
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to the traffic violation that gave rise to the stop. As more information became
available over the radio, it became apparent that defendant may have been
involved in the nearby shooting. That also gave rise to a reasonable suspicion
of illegal activity that justified a line of questioning more intrusive than what
may be permitted during an ordinary traffic stop. A review of the record,
however, reveals that the officers did not engage in such an interrogation.
Rather, the officers removed the remaining occupants from the car and placed
them in separate police vehicles. The interactions the officers had with
defendant, and each other, were clearly intended to secure the scene and ensure
officer safety.
Even if the officers had posed a limited number of questions intended to
"confirm[] or dispel[]" their suspicion, Berkemer, 468 U.S. at 439, that
defendant was involved in the shooting, caselaw suggests it would have been
permissible. A court must consider the totality of the circumstances in
determining whether an interrogation is custodial. State v. P.Z., 152 N.J. 86,
102 (1997). The content of the biographical questions, the amount of time spent
in investigatory detention, and the evolving nature of the events of the traffic
stop lead us to conclude defendant was not subjected to a custodial interrogation
requiring Miranda warnings. Instead, the interaction represented a valid
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investigatory detention justified by the circumstances. Accordingly, we affirm
the motion judge's decision denying defendant's motion to suppress his roadside
statements.
III
Next, defendant argues the handgun was seized in contravention of
Green's right to be free from unreasonable searches and seizures. He contends
Green's prolonged detention, which began around 8:30 p.m. when she was
placed in the back of a patrol car and ended around 1:30 a.m. when she was
released from the prosecutor's office, constitutes a de facto arrest lacking
probable cause. Because Green hid the gun while she was unlawfully detained,
defendant argues New Jersey's constitutional protections prohibit it from being
used against him. The motion judge admitted the handgun, finding that (1)
defendant had abandoned the firearm by relinquishing it to Green; (2) Green was
lawfully detained when she hid it; and (3) the purposes of the exclusionary rule
would not be served by suppression.
A.
In finding defendant had standing to assert violations of Green's
constitutional rights, the motion judge relied primarily on State v. Bruns, 172
N.J. 40 (2002). In that case, the defendant sought to suppress evidence seized
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from a vehicle that was subjected to a warrantless stop and search for reasons
unrelated to the robbery the defendant allegedly committed. Bruns, 172 N.J. at
43. The defendant had no connection with the vehicle, but the evidence seized
from it implicated him in the robbery. Id. at 44-45. The Court explained:
In order to contest at trial the admission of evidence
obtained by a search or seizure, a defendant must first
demonstrate that he has standing. Generally speaking,
that requires a court to inquire whether defendant has
interests that are substantial enough to qualify him as a
person aggrieved by the allegedly unlawful search and
seizure. Jones v. United States, 362 U.S. 257, 261
(1960).
[Id. at 46.]
The Court noted that Article I, Paragraph 7 of the New Jersey Constitution
provides broader standing to challenge warrantless searches and seizures than
under the Fourth Amendment of the United States Constitution. Id. at 50. In
New Jersey, standing depends upon "whether that defendant has a proprietary,
possessory or participatory interest in the place searched or items seized." Id.
at 46 (citing State v. Alston, 88 N.J. 211, 228 (1981)). "[I]n most cases in which
the police seize evidence implicating a defendant in a crime that defendant will
be able to establish an interest in the property seized or place searched . . . ." Id.
at 59. A participatory interest
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connotes some involvement in the underlying criminal
conduct in which the seized evidence is used by the
participants to carry out the unlawful activity . . . . It
thus provides standing to a person who, challenging the
seizure and prosecutorial use of incriminating
evidence, had some culpable role, whether as a
principal, conspirator, or accomplice, in a criminal
activity that itself generated the evidence.
[State v. Mollica, 114 N.J. 329, 339-40 (1989).]
However a defendant's basis for challenging the search will be diminished
"[i]f substantial time passes between the crime and the seizure of the evidence,
and a proprietary connection between defendant and the evidence no longer
exists," or if "the search was not directed at the defendant or at someone who is
connected to the crime for which he has been charged[.]" Bruns, 172 N.J. at 59.
Because the defendant had abandoned the subject evidence a week earlier, was
not present when it was found, and had no connection to the events leading to
the challenged search, the Court found he did not have standing. Ibid.Applying those principles, we agree with the motion judge that defendant
has a participatory interest in the handgun. Defendant was a participant in the
underlying criminal activity in which the seized evidence was used. Mollica,
114 N.J. at 339-40. In contrast to Bruns, in this case, the evidence was found
the morning after it left defendant's possession, and he was directly connected
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to the events that led to the gun's discovery. Therefore, we find defendant has
standing to challenge its unlawful seizure.
B.
Defendant contends the motion judge erred in concluding Green's
detention following the traffic stop was lawful. He suggests the police lacked
probable cause to carry out the de facto arrest. Because the shooting occurred
several blocks from Atlantic Avenue and Green was not identified as a suspect,
defendant argues there was no justified cause to detain her. He reasons that if
her seizure was unlawful, then the handgun is the result of unconstitutional
police conduct, which, in turn, makes her abandonment the gun irrelevant.
Once a vehicle is stopped, "a police officer may inquire 'into matte rs
unrelated to the justification for the traffic stop.'" Dunbar, 229 N.J. at 533
(quoting Ariz. v. Johnson, 555 U.S. 323, 333 (2009)). An officer may inspect
the driver's license, determine whether there are any outstanding warrants
against him or her, and check the vehicle's registration and proof of insurance.
Ibid. (quoting Rodriguez v. United States, 575 U.S. 348, 355 (2015)). If, "the
circumstances 'give rise to suspicions unrelated to the traffic offense, an officer
may broaden [the] inquiry and satisfy those suspicions.'" Ibid. (alterations in
original) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)). "[A]n
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investigative stop becomes a de facto arrest when '"the officers' conduct is more
intrusive than necessary for an investigative stop."'" Dickey, 152 N.J. at 478(quoting United States v. Jones, 759 F.2d 633, 636 (8th Cir. 1985)).
A continued investigatory stop is lawful if it is "reasonable at its
inception" and "the scope of the continued detention [is] reasonably related to
the justification for the initial interference." State v. Coles, 218 N.J. 322, 344
(2014). There is no bright line test to determine the point at which a stop
becomes a de facto arrest, but the Court has identified several guiding factors:
unnecessary delay, fear and humiliation resulting from law enforcement's
conduct, transportation of the detained person to another location, isolation of
the person, or confinement of the person. Dickey, 152 N.J. at 478-79 (quoting
United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994)). A de facto arrest
is lawful only if supported by probable cause. Id. at 478.
Property that is discarded while a person is unlawfully seized by the police
is not considered abandoned. State v. Tucker, 136 N.J. 158, 172 (1994). Thus,
when evidence is discovered as the result of an illegal seizure, that property is
inadmissible. Ibid.Here, moments after the traffic stop was initiated, Cook and Widman
received information about a shooting just a few blocks away from their
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location. Defendant advised the officers that there were two back seat
passengers, and that he and the occupants of the Nissan had just departed the
area where the shooting occurred. The officers then learned that two young
black males were involved in the shooting, one wearing a green hooded
sweatshirt. Defendant and Brown matched that description.
All the occupants were removed from the vehicle, including Green. She
was seated on a curb and then escorted to a police vehicle. She was not
handcuffed, but she was separated from her purse before being confined in the
back of the patrol car. She remained confined, and isolated from her
companions, in the back seat of the police car for about thirty minutes before
being transported.
The steps taken, until Green was transported to the police station, were
not greater than necessary to address justified concerns for police safety, and the
thirty minutes Green sat in the back of a patrol vehicle were directly related to
securing the scene. See State v. Mann, 203 N.J. 328, 338-39 (2010) (explaining
reasonableness is examined objectively in light of the facts known to police at
the time). The officers had reliable evidence that someone in the vehicle may
have been armed. The separation and detention of the occupants were out of
concern for the safety of all those present in light of the probability weapons
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were in the vehicle. See Terry, 392 U.S. at 25-26 (explaining officer safety is
the foundation for a limited pat down for weapons when the officer had an
articulable suspicion that a suspect may be armed).
Green hid the gun about five minutes after she was placed inside of the
patrol car. Accordingly, even if Green's detention turned into a de facto arrest
as she waited in the back of the police car for several hours, she was lawfully
detained when she hid the handgun. Therefore, its discovery was not the product
of illegal seizure requiring suppression of the gun. Tucker, 136 N.J. at 172.
Rather, the weapon was found because Green abandoned the firearm during a
lawful investigatory detention.
In hiding the gun, she met all of the elements required to demonstrate
abandonment. Green was in actual possession of the firearm, she knowingly and
voluntarily relinquished it, and when it was discovered the following morning,
there were no other apparent or known owners of the property. Johnson, 193
N.J. at 549. The initial traffic stop was lawful, and the subsequent investigatory
detention was no greater than necessary to secure the firearm the officers
believed to be in the vehicle. Green was therefore lawfully detained while at
the scene of the traffic stop. In turn, since Green abandoned the gun while
lawfully detained, we also find that law enforcement came into possession of
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the firearm through a constitutionally sound sequence of events. Consequently,
the exclusionary rule is inapplicable in this case. The handgun was properly
admitted to evidence and defendant's motions to suppress were correctly denied.
Affirmed.
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