STATE OF NEW JERSEY VS. TYQUAN GIBBS (18-02-0090, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1410-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYQUAN GIBBS,
Defendant-Appellant.
_____________________________
Submitted March 18, 2020 – Decided April 6, 2020
Before Judges Fuentes, Haas and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 18-02-0090.
Joseph E. Krakora, Public Defender, attorney for
appellant (Laura B. Lasota, Assistant Deputy Public
Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Rookmin Cecilia Beepat, Assistant
Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
After the trial court denied his motion to suppress evidence in connection
with Hudson County Indictment No. 18-02-00090, defendant Tyquan Gibbs pled
guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b)(1). In accordance with the negotiated plea, the judge sentenced defendant
to five years in prison, subject to a forty-two month period of parole ineligibility.
We affirm.
Officer Sean Morelli of the Jersey City Police Department was the only
witness to testify at the suppression hearing. On November 25, 2017, Officer
Morelli and his partner, Officer Aguilar, were patrolling in a marked police car.
At approximately 3:00 p.m., a staff sergeant radioed them to advise that a private
citizen had reported seeing a black male with a red hat in possession of a firearm
at a specific intersection. The officers asked that the sergeant call the citizen
back for further information, but the sergeant responded that the citizen was
unavailable.
The officers drove to the intersection and saw a black male wearing a red
hat standing near the corner. The officers immediately recognized the individual
as defendant because defendant's mug shot was posted at the police station on a
"Be On The Lookout" (BOLO) list that stated he was under investigation for
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multiple shootings in Jersey City, and had been involved in past domestic
violence incidents.
As the officers got out of their car to investigate, defendant immediately
put his hands in his waistband and the officers could no longer see them. The
officers both ordered defendant to take his hands out of his pants, but he refused
to comply. Officer Morelli testified that when defendant reached for his
waistband, he was concerned for his safety because from his training and
experience, he "believed [defendant] had a firearm that he was adjusting in his
waistband." The officers each grabbed one of defendant's arms. As they did so,
Officer Aguilar saw a black and silver handgun sticking out of defendant's
sweatshirt pocket.
The officers arrested defendant and seized the handgun. During a search
incident to this arrest, the officers also found a packet of heroin in defendant's
pocket.
The judge denied defendant's motion to suppress the handgun and heroin
seized from him. The judge found that Officer Morelli's testimony was credible
and, based on the citizen's report, defendant's action in placing his hands in his
waistband, his refusal to show his hands, and the fact that defendant was on the
BOLO list, the police had the reasonable suspicion necessary to conduct a lawful
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investigatory stop. The judge further found that in the course of conducting that
stop, Officer Aguilar observed the gun in plain view as it protruded from
defendant's pocket, and that the police properly seized the heroin packet
following a search incident to defendant's arrest. This appeal followed.
On appeal, defendant raises the following contention:
POINT I
THE INVESTIGATORY STOP OF DEFENDANT,
BASED ON AN ANONYMOUS TIP THAT A BLACK
MAN WEARING A RED HAT WAS IN POSSESSION
OF A GUN AT MARTIN LUTHER KING, JR. DRIVE
AND GRANT AVENUE IN JERSEY CITY, WAS
NOT SUPPORTED BY REASONABLE SUSPICION
AND WAS UNCONSTITUTIONAL. THUS, THE
DISCOVERY OF THE HANDGUN AND DRUGS ON
DEFENDANT'S PERSON INCIDENT TO THE
ILLEGAL STOP MUST BE SUPPRESSED.
In addition, defendant raised the following arguments in his pro se supplemental
brief:
POINT I
THE INSUFFICIENCY OF THE INFORMATION
POSSESSED BY THE SOUTH DISTRICT POLICE
DEPARTMENT POLICE OFFICERS WAS
INSUFFICIENT TO SUPPORT A FORCIBLE
TERRY[1] STOP, BECAUSE THE ARRESTING
OFFICER DID NOT CONDUCT ANY
CORROBORATIVE INVESTIGATION TO
1
Terry v. Ohio, 392 U.S. 1 (1968).
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BOLSTER THE TIP, THE KNOWLEDGE,
ACQUIRED BY THE OFFICER AFTER STOPPING
[DEFENDANT], THAT HE HAD A GUN SHOULD
HAVE BEEN SUPPRESSED[.]
1. THE ANONYMOUS TIP LACKED ANY
INDICIA OF RELIABILITY TO SUPPLY THE
REQUISITE REASONABLE SUSPICION
NECESSARY TO EFFECT A TERRY STOP[.]
2. THE ANONYMOUS TIP LACKED ANY
PREDICTIVE INFORMATION THAT COULD
HAVE BEEN CORROBORATED[.]
3. THE ANONYMOUS TIP PROVIDED NO
INFORMATION FROM WHICH THE POLICE
COULD JUDGE THE RELIABILITY OR
VERACITY OF THE TIP[.]
4. THE OFFICERS LACKED ANY OTHER
GROUNDS TO STOP [DEFENDANT.]
POINT II
WAS [DEFENDANT] SEIZED (THUS, SUBJECTED
TO A SEIZURE BY THE POLICE OFFICERS) AND
IF SO WAS THE SEIZURE REASONABLE WITHIN
THE TRUE MEANING OF THE FOURTH
AMENDMENT[?]
POINT III
ASSUMING [DEFENDANT] WAS SEIZED, WAS
THE SEIZURE OF HIM REASONABLE[?]
1. The BOLO (BE ON THE LOOKOUT).
2. The Dispatch.
3. The Residential Area and The Time
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4. The Anonymous Telephonic Tip.
5. Summary.[2]
We reject these contentions and affirm.
Our review of a trial judge's decision on a motion to suppress is limited.
State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress
evidence, we must uphold the judge's factual findings, "so long as those findings
are supported by sufficient credible evidence in the record." State v. Rockford,
213 N.J. 424, 440 (2013) (quoting Robinson, 200 N.J. at 15). Additionally, we
defer to a trial judge's findings that are "substantially influenced by [the trial
judge's] opportunity to hear and see the witnesses and to have the 'feel' of the
case, which a reviewing court cannot enjoy." Ibid. (alteration in original)
(quoting Robinson, 200 N.J. at 15). We do not, however, defer to a trial judge's
legal conclusions, which we review de novo. Ibid.
The police may, without a warrant, temporarily detain a person if they
have a reasonable and articulable suspicion that the person is engaged in
unlawful activity and may be armed. Terry, 392 U.S. at 30-31; State v. Elders,
2
The arguments raised in defendant's supplemental brief largely parrot the
contentions presented by his appellate counsel. We have considered defendant's
pro se arguments, and conclude they are clearly without merit and do not warrant
further discussion. R. 2:11-3(e)(2).
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192 N.J. 224, 247 (2007). "A suspicion of criminal activity will be found to be
reasonable only if it is based on 'some objective manifestation that the person
[detained] is, or is about to be engaged in criminal activity.'" State v. Williams,
410 N.J. Super. 549, 555 (App. Div. 2009) (alteration in original) (quoting State
v. Pineiro, 181 N.J. 13, 22 (2004)). "In making this determination, a court must
consider '[t]he totality of the circumstances.'" Ibid. (alteration in original)
(quoting Pineiro, 181 N.J. at 22).
Applying these principles here, we discern no basis for disturbing the
judge's determination that the police properly seized the handgun and heroin
from defendant after conducting an investigatory stop of defendant. Our
Supreme Court has noted that an ordinary citizen reporting a crime to the police
is not viewed with suspicion, and courts assume that a further demonstration of
reliability is not necessary to justify a stop of the person identified in the citizen's
report. State v. Basil, 202 N.J. 570, 586 (2010) (citing State v. Amelio, 197 N.J.
207, 212 (2008)). "Thus, an objectively reasonable police officer may assume
that an ordinary citizen reporting a crime, which the citizen purports to have
observed, is providing reliable information." Ibid. (citing State v. Stovall, 170
N.J. 346, 362 (2002)). "There is an assumption grounded in common experience
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that such a person is motivated by factors that are consistent with law
enforcement goals." State v. Davis, 104 N.J. 490, 506 (1986).
Here, the police received a report from a citizen that a black man wearing
a red hat and standing at a specific intersection was in possession of a gun.
When the police arrived, defendant was the only person in the area and he
matched the citizen's description. The officers recognized defendant because he
was on the BOLO list. When defendant saw the police exit their patrol car, he
immediately placed his hands in his waistband, which alarmed the officers based
on their training and experience that movements of this nature often indicate that
the suspect is attempting to conceal a weapon. When defendant refused to show
his hands in response to the officers' reasonable requests, they grabbed his arms.
As they did so, Officer Aguilar saw the handgun sticking out of defendant's
pocket.
Under the totality of these circumstances, we are satisfied that the officers
had the required reasonable and articulable suspicion that defendant was
engaged in unlawful activity and was armed. Therefore, the investigatory stop
that led to Officer Aguilar's plain view observation of the handgun in defendant's
pocket was constitutionally permissible. Terry, 392 U.S. at 30-31. As our
Supreme Court has stated, the plain view doctrine allows seizures without a
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warrant so long as an officer is "lawfully . . . in the area where he observed and
seized the incriminating item or contraband, and it [is] immediately apparent
that the seized item is evidence of a crime." State v. Gonzales, 227 N.J. 77, 101
(2016). Under these circumstances the seizure of defendant's handgun was
unimpeachable.
After defendant's arrest, the officers' search of defendant's person was
authorized by the well-established Fourth Amendment exception permitting the
warrantless search of persons incident to their lawful arrest. See Chimel v.
California, 395 U.S. 752, 762-63 (1969); State v. Dangerfield, 171 N.J. 446, 461
(2002). Therefore, the judge also correctly denied defendant's motion to
suppress the packet of heroin seized following his arrest.
Affirmed.
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