State v. Kevin Gamble (071234)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State of New Jersey v. Kevin Gamble (A-53-12) (071234)
Argued May 5, 2014 – 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. (p. 11)
1
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.
(pp. 11-14)
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. (pp. 14-20)
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. (pp. 20-21)
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 REVERSED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-53 September Term 2012
071234
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KEVIN GAMBLE,
Defendant-Respondent.
Argued May 5, 2014 – Decided July 29, 2014
On certification to the Superior Court,
Appellate Division.
Frank Muroski, Deputy Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General, attorney;
Mr. Muroski and Brian J. Uzdavinis, Deputy
Attorney General, on the briefs).
Susan Brody, Deputy Public Defender II,
argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
This appeal involves the validity of a warrantless search
of a van and the seizure of a handgun from the van’s center
console. The initial investigatory stop, the subsequent frisk
of the occupants, and the protective search of the passenger
compartment of the van were precipitated by two late night
anonymous calls to police. The first reported “shots fired”;
1
the second reported an individual seated in a van with a gun on
his lap. Both calls identified a location that was well-known
to the responding police officers as a high-crime area.
The entry into the passenger compartment of the van by one
of the responding officers occurred after police located the
vehicle and observed frantic movements by its occupants. When
ordered to exit the vehicle, the driver started to leave and
then balked. After the driver was forcibly removed by an
officer, he was frisked. No weapon was found on him or his
passenger. As the officer returned to inspect the interior of
the van, he observed the handle of a gun protruding from the
center console of the van and almost simultaneously heard a
commotion caused by the driver’s attempt to flee. The gun was
seized by another officer after the driver was subdued,
restrained, and placed in a police car.
The totality of the circumstances -- specifically the 9-1-1
calls, the late hour, the location of the van, the frantic
movements of the occupants, and the hesitancy of the driver to
leave the van -- permitted the responding police officers to
form a reasonable suspicion that either one or both of the
occupants of the van were armed or that a weapon would be found
in the vehicle. The frisk of both occupants failed to produce a
weapon. That finding underscored the need to inspect the
interior of the vehicle to make sure it did not contain a weapon
2
before the driver and passenger re-entered the van. Under the
totality of the circumstances, we conclude that the officers
conducted a valid investigatory stop, Terry1 frisk, and
protective sweep of the passenger compartment of the van.
I.
We derive the facts from the evidentiary hearing held in
response to defendant’s motion to suppress. On May 3, 2008, at
approximately 11:00 p.m., Irvington Police Officers Theodore
Bryant and Richard Santiago responded to a dispatch of “shots
fired” in the area of Chancellor and Union Avenues, a high-crime
neighborhood. While patrolling the area, the officers received
another dispatch in response to an anonymous 9-1-1 call
reporting an individual seated in a tan van with a gun in his
lap. No other information was given.
The officers soon spotted a tan van parked on Chancellor
Avenue. The officers parked their vehicle behind the van and
directed a spotlight on it, then exited their vehicle with their
weapons drawn. Officer Bryant could see the occupants moving
frantically inside the vehicle, “as if trying to hide
something.” He approached on the driver’s side and ordered the
occupants, later identified as defendant Kevin Gamble and co-
1
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.
2d 889, 906 (1968).
3
defendant Terrell Wright, to exit the vehicle. At this point,
Officer Bryant did not see a gun in the van.
Wright, the front-seat passenger, exited as instructed. As
Officer Bryant approached, defendant began to exit and then
retreated to the driver’s seat. Bryant testified that he feared
defendant might be trying to retrieve a weapon. He struck
defendant and pulled him from the vehicle. Bryant frisked
defendant for weapons. Finding none, he transferred defendant
to a responding backup officer.2
Officer Bryant then returned to the vehicle to search its
interior. Bryant testified that he observed the handle of a
handgun protruding from the van’s middle console “as he entered
the vehicle.” At that point, Bryant heard a commotion and
realized that defendant was trying to flee. Bryant exited the
van, subdued and restrained defendant, placed him into a police
vehicle, and notified other officers that there was a handgun
inside the van. In addition to retrieving the handgun from the
van, police recovered shell casings at the scene.
Janelle Johnson, defendant’s fiancée, testified for
defendant. Johnson, the owner of the van, observed parts of the
incident from her apartment window across the street. She
testified that she heard someone yelling “get out the car, get
2
The record does not reveal whether the passenger was frisked.
The arguments of both parties suggest that he was frisked and no
weapon was found.
4
out the car,” and saw lights. Johnson looked out the window and
saw police surround the van with their guns drawn. Johnson went
outside and saw defendant lying on the ground. From the other
side of the street, she observed a police officer inside the van
“go straight towards the middle of the car and yank the console
out,” and remove a handgun. Johnson did not know where the
handgun came from or how it got inside the van.
II.
A.
Defendant was charged with second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b); third-degree
receiving stolen property (the handgun), N.J.S.A. 2C:20-7; and
third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a).
Defendant filed a motion to suppress the evidence recovered
at the scene, arguing that the search was illegal because no
exception to the warrant requirement applied. The State
contended that the search was reasonable under the automobile
exception to the warrant requirement, maintaining that there was
probable cause to believe there were weapons in the vehicle and
that exigent circumstances existed when defendant broke free and
attempted to flee from the officers. The State argued that,
even if the circumstances did not establish probable cause, the
officers had reasonable suspicion to justify a protective search
of the vehicle. Alternatively, the State maintained that the
5
search was permissible under the plain view exception to the
warrant requirement.
The motion court denied defendant’s motion to suppress.
The court credited Johnson’s testimony, but found Officer
Bryant’s testimony more credible. The motion court held that
the totality of the circumstances, including “the fighting, the
fact that one individual tried to retreat back into the car, the
corroboration of the handgun being found, and in connection with
a call, which indicated shots fired,” created a reasonable
suspicion to investigate, and further held that the State had
met its burden because the weapon was in plain view of the
officer.
Following the denial of his motion to suppress, defendant
pled guilty to second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b), and third-degree resisting arrest, N.J.S.A.
2C:29-2(a)(3)(a), pursuant to a negotiated plea agreement. The
court sentenced defendant to the statutory minimum of three
years’ imprisonment with a three-year period of parole
ineligibility.
B.
Defendant appealed, arguing that the trial court erred in
applying the plain view exception. He further contended that no
other exception to the warrant requirement applied to the search
of the van. The State maintained that the handgun was seized in
6
plain view during a lawful investigative stop, and even if it
was not in plain view, it was properly seized during a limited
protective search of the van that was reasonable under the
totality of circumstances.
The Appellate Division reversed defendant’s conviction,
concluding that no exception to the warrant requirement
permitted the search of the van and the seizure of the handgun.
The appellate panel held that, although the totality of the
circumstances and evidence may have given the police officer a
suspicion or a hunch that criminal activity was afoot,
reasonable suspicion to support a stop demanded more. The panel
concluded that defendant’s furtive movements, accompanied only
by a report of individuals with a gun in a tan van and
defendant’s attempts to re-enter the van, were not enough to
support a reasonable belief that defendant was dangerous and
that the vehicle might contain a weapon accessible to defendant
or his passenger. Accordingly, the panel held that the
protective frisk was not permissible. Further, the panel found
that there was no evidence in the record demonstrating the
officer viewed the handgun in the console prior to entering the
van. Therefore, because the officer was not lawfully in the
viewing area, the plain view exception was not applicable. The
panel also rejected the application of the automobile exception
to the warrant requirement.
7
The State filed a petition for certification, which this
Court granted. State v. Gamble, 213 N.J. 389 (2013).
III.
A.
The State argues that the search of the van was justified
either as a limited protective frisk or as a plain view seizure.3
First, the State maintains that the totality of the
circumstances, specifically, the 9-1-1 calls, the location of
the van, and the frantic movements of the occupants, created
sufficient reasonable suspicion to justify an investigatory
stop. Second, the State contends that these factors, together
with the driver’s attempt to re-enter the van and the fact that
the occupants of the van would have been allowed to re-enter
after the stop, created sufficient reasonable suspicion to
justify a limited vehicle protective frisk.
The State points to the recent United States Supreme Court
decision in Navarette v. California, 572 U.S. __, __, 134 S. Ct.
1683, 1689-90, 188 L. Ed. 2d 680, 688-89 (2014), where the
Supreme Court held that the use of the 9-1-1 emergency system
was an “indicator of veracity,” because its safeguards and
features permit identification of callers. The State contends
that Navarette supports its position that the anonymous 9-1-1
3
The State no longer argues that the automobile exception to the
warrant requirement applied in this case.
8
calls can provide reasonable suspicion. The State also invokes
State v. Golotta, 178 N.J. 205, 219 (2003) to support its
assertion that New Jersey courts treat anonymous 9-1-1 calls as
more reliable than other anonymous tips. The State further
distinguishes this case from Florida v. J.L., 529 U.S. 266, 274,
120 S. Ct. 1375, 1380, 146 L. Ed. 2d 254, 262 (2000), where the
Supreme Court held that the Fourth Amendment did not allow a
frisk of a young man at a bus stop based only on an anonymous
tip that he had a gun. Here, the State contends the calls
concerned a person with a weapon in a high-crime area and
reports that shots had been fired.
In its discussion of the plain view exception, the State
contends this Court should abandon the inadvertence requirement.
The State also maintains that the evidence adduced at the
suppression hearing supports the trial court’s finding that the
officer was lawfully at the threshold of the van’s open door
when he saw the gun, and therefore, the plain view exception to
the warrant requirement applies here.
B.
Defendant maintains that the handgun was not in plain view,
that the protective frisk theory is inapplicable to motor
vehicles, and that the search was not lawful on any other basis.
Therefore, defendant asserts that the Appellate Division
correctly reversed the denial of the motion to suppress.
9
Addressing plain view, defendant asserts that there is no
support for the State’s theory that the officer saw the weapon
before he entered the vehicle. Defendant maintains that even if
the officer was lawfully in the van at the time he saw the gun,
the plain view exception would not apply because the officer did
not discover the gun inadvertently; rather, he entered the van
with the express purpose to find it.
Defendant also argues that the search was not permissible
as a limited protective frisk. Defendant maintains that the
record does not support the State’s contention that it was the
officer’s intention to limit his inquiry to the center console.
Defendant contends that the totality of circumstances in this
case did not justify a protective frisk pursuant to the factors
articulated by this Court in State v. Lund, 119 N.J. 35, 48
(1990). He insists that there was no ongoing emergency when the
officers confronted the individuals in the van, and there was
insufficient evidence to support a reasonable suspicion that
defendant was armed and dangerous. Defendant further argues
that he did not pose a threat to officer safety at the time of
the search, as he had been placed under arrest. Finally,
defendant maintains that no other exception to the warrant
requirement applies because there was neither exigency nor
probable cause to justify the search.
IV.
10
A.
Appellate courts reviewing a grant or denial of a motion to
suppress must uphold the factual findings underlying the trial
court’s decision so long as those findings are supported by
sufficient credible evidence in the record. State v. Elders,
192 N.J. 224, 243 (2007). Deference to these factual findings
is required 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. Johnson, 42 N.J. 146, 161 (1964). Thus, appellate
courts should reverse only when the trial court’s determination
is “so clearly mistaken ‘that the interests of justice demand
intervention and correction.’” Elders, supra, 192 N.J. at 244
(quoting Johnson, supra, 42 N.J. at 162).
A trial court’s interpretation of the law, however, and the
consequences that flow from established facts are not entitled
to any special deference. State v. Gandhi, 201 N.J. 161, 176
(2010); Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995). Therefore, a trial court’s legal conclusions
are reviewed de novo. Gandhi, supra, 201 N.J. at 176.
B.
The Fourth Amendment to the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution guarantee
the right of people to be secure against unreasonable searches
11
and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7.
Constitutional protections prohibiting unreasonable searches and
seizures “impose a standard of reasonableness on the exercise of
discretion by government officials to protect persons against
arbitrary invasions.” State v. Maristany, 133 N.J. 299, 304
(1993). Reasonableness is the “touchstone” of the Fourth
Amendment. State v. Crumb, 307 N.J. Super. 204, 245 (App. Div.
1997), certif. denied, 153 N.J. 215 (1998).
“A warrantless search is presumed invalid unless it falls
within one of the recognized exceptions to the warrant
requirement.” State v. Cooke, 163 N.J. 657, 664 (2000). The
State bears the burden of proving that the warrantless search is
justified by one of those exceptions. State v. Bogan, 200 N.J.
61, 73 (2009). Evidence seized when found in plain view is one
exception. State v. Mann, 203 N.J. 328, 340-41 (2010).
Warrantless vehicle searches in New Jersey are also sustainable
either under the “‘automobile exception’ on the basis of
probable cause, or in connection with a search for weapons based
on an objectively-reasonable belief that an occupant of the
vehicle is dangerous and may gain access to weapons.” State v.
Pierce, 136 N.J. 184, 205 (1994).
An exception to the warrant requirement relevant to the
facts here is the protective sweep. The United States Supreme
Court in Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093,
12
1094, 108 L. Ed. 2d 276, 281 (1990), authorized law enforcement
officers to conduct a limited “protective sweep” of a residence
when necessary for safety reasons. The Court described a
protective sweep as “a quick and limited search of premises,
incident to an arrest and conducted to protect the safety of
police officers or others[,] . . . narrowly confined to a
cursory visual inspection of those places in which a person
might be hiding.” Ibid.
In State v. Davila, 203 N.J. 97, 116 (2010), this Court
analyzed the application of Buie in situations where the
protective sweep of a residence occurred when officers were
lawfully present in a home for some purpose other than to effect
an arrest. The Court concluded that the absence of probable
cause to arrest did not render a protective sweep per se
illegal. Id. at 121. However, the Court directed that an
inquiry must be made into the circumstances justifying the
sweep. Id. at 125. A protective sweep of a home may only occur
when
(1) law enforcement officers are lawfully
within the private premises for a legitimate
purpose, which may include consent to enter;
and (2) the officers on the scene have a
reasonable articulable suspicion that the
area to be swept harbors an individual
posing a danger. Where those substantive
conditions are met, as a matter of
procedure, the sweep will be upheld only if
(1) it is cursory, and (2) it is limited in
13
scope to locations in which an individual
could be concealed.
[Ibid.]
The Court emphasized that the justification for a limited
protective sweep is the “serious concern for officer safety when
articulable facts are present that justify taking [such a]
precaution,” and noted that the Supreme Court decisions in Terry
and Long4 relied on a similar rationale. Id. at 117.
In Michigan v. Long, 463 U.S. 1032, 1034-35, 103 S. Ct.
3469, 3473, 77 L. Ed. 2d 1201, 1210 (1983), the United States
Supreme Court held that police may conduct a “protective search
of the passenger compartment” of a vehicle based on a reasonable
belief “that the vehicle contain[s] weapons potentially
dangerous to the officers.” See also Lund, supra, 119 N.J. at
40 (“[I]n Michigan v. Long, the Court upheld the right of police
to conduct a weapons search of the interior of a car when they
have a reasonable belief that the motorist is potentially
dangerous.”). In Lund, supra, this Court adopted the rule in
Long to govern protective searches of automobiles based on
reasonable suspicion. 119 N.J. at 48.
Encounters between private citizens and police may take
many forms. In the law enforcement context, the most common are
the field inquiry, the investigatory stop, the stop and frisk,
4
Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d
1201 (1983).
14
the protective sweep of a residence or vehicle, and the search
of a person, vehicle, or premises. See State v. Rodriguez, 172
N.J. 117, 125-27 (2002). Each is governed by a different
standard, ibid., and circumstances of an encounter between a
private citizen and police may evolve quickly, thereby
progressing rapidly from a simple field inquiry to a search, see
State v. Sirianni, 347 N.J. Super. 382, 388 (App. Div.), certif.
denied, 172 N.J. 178 (2002).
Here, as in many instances, the circumstances that
culminated in a protective sweep of a house or vehicle commenced
with an investigatory stop. As detailed in Davila, supra, the
investigatory stop and the protective sweep require a reasonable
articulable suspicion that the person to be frisked or the area
to be swept poses a danger to the officer. 203 N.J. at 125-26.
Police may conduct a brief, investigatory stop, sometimes
called a Terry stop, if there is reasonable suspicion that the
person being stopped is engaged, or is about to engage, in
criminal activity. State v. Nishina, 175 N.J. 502, 510-11
(2003). Reasonable suspicion to justify such a stop must be
“based on specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant
the officer in believing that the suspect is dangerous and the
suspect may gain immediate control of weapons.” Long, supra,
463 U.S. at 1049, 103 S. Ct. at 3480, 77 L. Ed. 2d at 1220
15
(internal quotation marks omitted); see Lund, supra, 119 N.J. at
39. Although a mere “hunch” does not create reasonable
suspicion, Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20
L. Ed. 2d at 909, the level of suspicion required is
“considerably less than proof of wrongdoing by a preponderance
of the evidence,” and “obviously less” than is necessary for
probable cause, United States v. Sokolow, 490 U.S. 1, 7, 109 S.
Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989).
“[A]n anonymous tip alone seldom demonstrates the
informant’s basis of knowledge or veracity.” Alabama v. White,
496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308
(1990). That is because “ordinary citizens generally do not
provide extensive recitations of the basis of their everyday
observations,” and an anonymous tipster’s veracity is “by
hypothesis largely unknown, and unknowable.” Ibid. (internal
quotation marks omitted).
J.L. illustrates the shortcomings of anonymous reports of
criminal activity. In J.L., supra, 529 U.S. at 268-69, 120 S.
Ct. at 1377-78, 146 L. Ed. 2d at 258-59, the Supreme Court
determined that no reasonable suspicion arose from a bare-bones
tip that a young black male in a plaid shirt standing at a bus
stop was carrying a gun. The tipster did not explain how he
knew about the gun, nor did he suggest that he had any special
familiarity with the young man’s affairs. Id. at 271, 120 S.
16
Ct. at 1379, 146 L. Ed. 2d at 260. As a result, police had no
basis for believing “that the tipster ha[d] knowledge of
concealed criminal activity.” Id. at 272, 120 S. Ct. at 1379,
146 L. Ed. 2d at 261. Furthermore, the tip included no
predictions of future behavior that could be corroborated to
assess the tipster’s credibility. Id. at 271, 120 S. Ct. at
1379, 146 L. Ed. 2d at 260. Accordingly, the tip was
insufficiently reliable to justify a stop and frisk. Ibid.
Similarly, in Rodriguez, supra, this Court held that police
impermissibly detained a man based on nothing more than an
anonymous call from a man that two men would be arriving by bus
in Atlantic City carrying drugs purchased in Philadelphia. 172
N.J. at 131. We determined that an investigatory stop required
more than an accurate description of the defendant and an
accurate prediction of his mode of transportation. Ibid.
On the other hand, when the 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, a police officer may undertake an
investigatory stop of that individual. This Court has
previously treated an anonymous 9-1-1 call as more reliable than
other anonymous tips. In Golotta, supra, 178 N.J. at 209, this
Court held that an investigative stop of a vehicle was allowable
based on an anonymous 9-1-1 call reporting reckless driving.
17
The caller identified the color of the truck, its license plate
number, and its direction. Ibid. An officer observed a vehicle
matching that description as to all but the last letter of the
license plate. Id. at 223-24. The Court concluded that the
stop was permissible for three reasons: (1) the “enhanced
reliability” of 9-1-1 calls, (2) the fact that only a temporary
stop of the vehicle was involved and not a search of the vehicle
or arrest of the driver, and (3) the “significant risk of death
or injury to himself or the public” posed by an intoxicated or
erratic driver. Id. at 218.
Recently, in Navarette, supra, 572 U.S. at __, 134 S. Ct.
at 1690-91, 188 L. Ed. 2d at 689-91, the Supreme Court favorably
referred to Golotta, and used a similar rationale in holding
that an anonymous 9-1-1 call claiming eyewitness knowledge of
dangerous driving contained sufficient indicia of reliability.
The Court determined that an anonymous 9-1-1 call in which the
caller claimed eyewitness knowledge of dangerous driving
indicative of intoxication had sufficient indicia of
reliability, considering the short time between the reported
incident and the 9-1-1 call and the technological and regulatory
features of the 9-1-1 system which safeguard against false
reports. Id. at __, 134 S. Ct. at 1689-91, 188 L. Ed. 2d at
689-91.
18
Other factors may also give rise to reasonable suspicion.
In Lund, supra, we recognized that “[n]ervousness and furtive
gestures may, in conjunction with other objective facts, justify
a Terry search.” 119 N.J. at 47. Other factors that may
combine with furtive movements to give rise to reasonable
suspicion include “additional evasive action, lying to the
police, the presence of other incriminating information about
the motorist or occupants of the car, the absence of
identification, and even the lateness of the hour.” Id. at 48;
see also State v. Citarella, 154 N.J. 272, 279-80 (1998)
(finding suspect’s movements and gestures, presence of
incriminating information about vehicle or occupants, and time
and place of encounter can create reasonable suspicion necessary
to justify search); State v. Daniels, 264 N.J. Super. 161, 167
(App. Div. 1993) (holding furtive movements of reaching under
seat and towards console, plus denial of movements, plus
reasonable belief car was stolen created reasonable concern for
safety sufficient to justify protective search).
When a police officer forms a reasonable and articulable
suspicion to justify an investigatory stop, the officer may also
conduct a patdown or frisk of the outer clothing of such persons
in an attempt to discover weapons. Terry, supra, 392 U.S. at
30-31, 88 S. Ct. at 1884-85, 20 L. Ed. 2d at 911; State v.
Privott, 203 N.J. 16, 30 (2010).
19
V.
With those principles in mind, we turn to the facts of this
case.
A.
The first issue before this Court concerns whether there
was a reasonable suspicion to justify the initial stop of the
van. The standard takes into account “the totality of the
circumstances -- the whole picture.” United States v. Cortez,
449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629
(1981).
In this case, the State maintains that the totality of
circumstances, specifically the 9-1-1 calls, the location of the
van in a high-crime neighborhood late at night, and the frantic
movements of the occupants, created sufficient reasonable
suspicion to justify an investigatory stop. We agree. Two
anonymous calls were reported on the night in question. One
call reported shots fired in the area around Chancellor and
Union Avenues in Irvington; the other reported a person seated
in a tan van parked on Chancellor Avenue with a gun in his lap.
At least one, if not both, of the calls was placed through the
9-1-1 system. Although the tipster did not inform officers how
he or she knew about the gun, the tip identified the vehicle’s
color, type, and approximate location. Police officers were
20
able to corroborate the tip by finding a tan van at the reported
location.
Additionally, once the officers located the vehicle, they
did not immediately approach it. Their suspicion was not based
solely on the anonymous 9-1-1 call. The officers illuminated
the van with a spotlight, which permitted them to observe
behavior consistent with an attempt to hide a prohibited item.
These furtive gestures, the location of the van, the late hour,
combined with the 9-1-1 calls, created a reasonable suspicion
sufficient to justify an investigatory stop of the vehicle.
B.
Having determined that there was reasonable suspicion
justifying the initial stop of the van, we now turn to the
legality of the subsequent frisk of the occupants and search of
the vehicle. An officer lawfully stopping a vehicle may conduct
a protective frisk of the passenger compartment if he has a
reasonable suspicion that the individual is dangerous and may
gain immediate access to weapons. Long, supra, 463 U.S. at
1049, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1220; Lund, supra, 119
N.J. at 48. This involves “balancing the State’s interest in
effective law enforcement against the individual’s right to be
free from unwarranted and/or overbearing police intrusions.”
State v. Caldwell, 158 N.J. 452, 459 (1999). That determination
is fact-sensitive and requires consideration of whether the
21
totality of the circumstances provided the officer with an
articulable and particularized suspicion that the individual was
involved in criminal activity, within the context of the
officer’s relative experience and knowledge. State v. Arthur,
149 N.J. 1, 7-8 (1997). The same circumstances which justify an
investigatory stop may also present the officer with “a specific
and particularized reason to believe that the suspect is armed.”
Privott, supra, 203 N.J. at 30.
In addition to the totality of the circumstances that
warranted the investigatory stop, defendant balked at Officer
Bryant’s direction to exit the car. Defendant’s retreat to the
driver’s seat as Officer Bryant got closer created a reasonable
suspicion that defendant was dangerous and could gain immediate
access to a weapon, specifically the handgun that had been
reported in the 9-1-1 call. Terry, supra, 392 U.S. at 30-31, 88
S. Ct. at 1884-85, 20 L. Ed. 2d at 911; Privott, supra, 203 N.J.
at 30.
After Officer Bryant completed the patdown of defendant and
did not find a weapon, he returned to the car to conduct a
search of the interior of the vehicle. He did so only after a
frisk of defendant and his passenger revealed that neither
carried a weapon. Yet, their conduct, particularly defendant’s
conduct, enhanced, rather than allayed, the officers’ concern
that there was a weapon in the van. The officers’ reasonable
22
suspicion that there was a gun in the van that would be within
easy reach when defendant and his passenger returned to the
vehicle, and the officers’ reasonable concerns for their safety
and the safety of others did not evaporate when they failed to
find a weapon on either defendant or his passenger. The risk to
officers and public safety, which underpinned this Court’s
holding in Davila, is equally present here. While the
protective sweeps in Buie and Davila were aimed at protecting
officers from danger that may be encountered in a home from
individuals lurking therein, this rationale applies equally to
limited protective searches of vehicles, where officers are
permitted to “ferret out weapons that might be used against
police officers.” Davila, supra, 203 N.J. at 129. The sweep,
however, must be cursory and limited in scope to the location
where the danger may be concealed. Here, the narrowly confined
visual sweep of the passenger compartment, which revealed a
handgun protruding from the center console, was permissible.
C.
As the search was a permissible protective sweep of the
passenger compartment of the vehicle, we need not discuss the
applicability of the plain view exception to the facts here.
VI.
We therefore conclude that the initial investigatory stop
of the vehicle was justified under the totality of the
23
circumstances. Similarly, the officers’ decision to conduct
what can best be characterized as a protective sweep or frisk of
the van was constitutionally permissible.
No one factor was determinative. Here, there was a
confluence of factors, including the 9-1-1 calls reporting
gunshots and an individual with a gun, the late hour, the
location of the van in a high-crime area, and the furtive
movements of the van’s occupants when the officers arrived on
the scene and as they approached the vehicle. While the United
States Supreme Court and this Court have held that anonymous 9-
1-1 calls alone may contain sufficient indicia of reliability in
certain situations, notably reports of intoxicated driving, see
Navarette, supra, 572 U.S. at __, 134 S. Ct. at 1690-91, 188 L.
Ed. 2d at 689-90; Golotta, supra, 178 N.J. at 209, we need not
determine here whether the anonymous 9-1-1 calls alone were
sufficient to create a reasonable suspicion of criminal
activity. Based on the totality of the circumstances, once the
officer completed the patdown of defendant and did not locate
the gun, it was reasonable for the officer to believe the van
contained a gun. To permit defendant and his passenger to re-
enter the van before ensuring that it did not contain a weapon
ignores the risk to officers and public safety.
In sum, the 9-1-1 calls were simply one piece of the
puzzle. The totality of all the circumstances provided the
24
officers with a reasonable and articulable suspicion that the
individuals were involved in criminal activity and thus
permitted the investigatory stop and the protective sweep of the
van.
VII.
The judgment of the Appellate Division is, therefore,
reversed.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and FERNANDEZ-VINA; and JUDGE RODRÍGUEZ (temporarily assigned)
join in JUDGE CUFF’s opinion.
25
SUPREME COURT OF NEW JERSEY
NO. A-53 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KEVIN GAMBLE,
Defendant-Respondent.
DECIDED July 29, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST REVERSE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7
1