STATE OF NEW JERSEY VS. BRUCE W. JACKSON (14-01-0052, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-4376-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRUCE W. JACKSON, JR.,

Defendant-Appellant.
______________________________

Submitted July 25, 2017 – Decided June 14, 2018

Before Judges Ostrer and Leone.

On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 14-01-0052.

Joseph E. Krakora, Public Defender, attorney
for appellant (Mark H. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).

Christopher S. Porrino, Attorney General,
attorney for respondent (Sarah D. Brigham,
Deputy Attorney General, of counsel and on the
brief).

The opinion of the court was delivered by

LEONE, J.A.D.
 Defendant Bruce W. Jackson appeals his August 5, 2015 judgment

of conviction after a guilty plea. He challenges the denial of

his motion to suppress. We affirm.

I.

We derive the following facts from the trial court's factual

findings at the April 23, 2015 suppression hearing, and the hearing

testimony of Officer Timothy Rehmann, Officer Michael McLaughlin,

and Officer Colt Gibson, all patrol officers with the Millville

Police Department.

On September 7, 2013, Officer Rehmann received a call from a

known source reporting that shots had been fired at the Delsea

Gardens apartment complex involving a black Toyota FJ Cruiser with

a white top. The caller followed the FJ Cruiser to a Wawa. When

Rehmann got there, the FJ Cruiser had left the Wawa, but Rehmann

reviewed the Wawa's surveillance footage, saw the FJ Cruiser had

parked there, and identified defendant as the driver and the

registered owner of the FJ Cruiser. Rehmann lacked sufficient

evidence of a shooting, but printed out a picture of the FJ Cruiser

from the surveillance footage and posted it where other officers

saw it, including Officer Gibson.

On October 1, 2013, at 12:19 a.m., Officers Rehmann,

McLaughlin, and Gibson responded to another report of shots fired

at an apartment in Delsea Gardens. Rehmann found a bullet strike

2 A-4376-15T4
through an apartment window and bullet fragments in the apartment.

Other officers found shell casings on the ground nearby.

While looking for evidence, Officer McLaughlin was approached

by an individual in a hooded sweatshirt, with the hood pulled

tightly over his face. The individual stated he knew who did the

shooting, and he was willing to talk in a more private place.

McLaughlin met privately with the individual, who said he saw a

black FJ Cruiser with a white top pull into the complex, multiple

persons exit the vehicle, and the persons "cranking rounds off."

They then got back in the FJ Cruiser and left. The individual

declined to identify himself due to the high level of gang activity

in the area and his resulting fear of retaliation. McLaughlin

shared this information with the other officers, including Officer

Gibson.

Within a few minutes of that conversation, Officer McLaughlin

observed a black FJ Cruiser with a white top pull into the complex.

McLaughlin testified that "as they pulled in, they turned their

headlights off and it seemed like as soon as they saw the police

car there they hurried up and turned back out," driving without

headlights on the street. Officer Rehmann testified that while

taking photographs of the shell casings, he observed a black FJ

Cruiser with a white top enter Delsea Gardens, drive with no lights

3 A-4376-15T4
on, turn into a nearby parking lot, and then turn back and exit

the complex.

Officer Gibson testified he observed the black FJ Cruiser

with a white top pull into the complex with its headlights on,

make an immediate u-turn, emerge from behind a building with its

lights off, and then leave the complex, driving on the street with

its lights off. Gibson immediately went to his vehicle to follow

the FJ Cruiser.

Officer Gibson located the FJ Cruiser stopped at a Wawa gas

station. He exited his vehicle and performed a "felony stop,"

pointing his weapon at the occupants of the FJ Cruiser and ordering

them to open the door, exit the FJ Cruiser, and lay on the ground.

Three occupants – including defendant, the driver – exited the FJ

Cruiser. Two other occupants of the FJ Cruiser, who were in the

Wawa, fled when the police approached.

Officer Gibson approached and looked in the FJ Cruiser to

confirm there were no more occupants left in the vehicle. Through

a window he observed a handgun in the pouch behind the front

passenger seat.

Officers Rehmann and McLaughlin joined Officer Gibson. Using

his flashlight, Rehmann looked into the vehicle to see if any

weapons were in plain view and to verify the vehicle was

unoccupied. Without opening the doors, Rehmann observed the butt

4 A-4376-15T4
end of the semi-automatic-pistol in the pouch on the back of the

front passenger seat. He also looked through the rear window of

the SUV and saw a revolver and the barrel of a shotgun in the

cargo area.1

Defendant was charged with second-degree unlawful possession

of a handgun, N.J.S.A. 2C:39-5(b) and third-degree unlawful

possession of a shotgun, N.J.S.A. 2C:39-5(c)(1). After the hearing

on defendant's motion to suppress, the trial court found "[t]here

was a legitimate reason to stop [the] car for a motor vehicle

violation," that "the felony stop" was justified under "the

totality of the circumstances," and the weapons were properly

seized under "a recognized exception to the warrant requirement

in that they were recovered due to the fact that they were located

in plain view."

Defendant pled guilty to second-degree unlawful possession

of a weapon. At the plea hearing, defendant stated as follows.

On October 1, 2013, he was driving his FJ Cruiser and had a 9 mm

Ruger handgun in the pouch behind the front passenger seat. He

had no permit. He, co-defendant Hector Guevera, and three other

passengers drove to the Delsea Gardens apartment complex, heard

1
Officer McLaughlin testified he patted down defendant, and found
a large hunting knife. However, defendant was not charged with
possessing the knife, and it is not at issue on appeal.

5 A-4376-15T4
shots fired, left, and discovered the FJ Cruiser had a bullet

hole. They drove to the residence of Guevera, got two more

handguns and a shotgun, and drove back to Delsea Gardens. They

then drove to get gas at the Wawa, where the police came and saw

and seized the guns. Pursuant to the plea agreement, the trial

court sentenced defendant to five years in prison with one year

of parole ineligibility.

Defendant appeals, arguing:

THE ITEMS SEIZED FROM DEFENDANT'S VEHICLE
SHOULD HAVE BEEN SUPPRESSED AS FRUITS OF AN
ILLEGAL WARRANTLESS SEARCH. BECAUSE NO
EXIGENT CIRCUMSTANCES EXISTED, THE
WARRANTLESS SEARCH OF THE VEHICLE WAS
UNCONSTITUTIONAL.

II.

We must hew to our standard of review. An appellate court

is "bound to uphold a trial court's factual findings in a motion

to suppress provided those 'findings are "supported by sufficient

credible evidence in the record."'" State v. Watts, 223 N.J. 503,

516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)).

"Deference to those findings is particularly appropriate when the

trial court has the '"opportunity to hear and see the witnesses

and to have the feel of the case, which a reviewing court cannot

enjoy."'" Ibid. (quoting Elders, 192 N.J. at 244). "Nevertheless,

we are not required to accept findings that are 'clearly mistaken'

6 A-4376-15T4
based on our independent review of the record." Ibid. (quoting

Elders, 192 N.J. at 244). "We owe no deference to a trial . . .

court's interpretation of the law, and therefore our review of

legal matters is de novo." State v. Hathaway, 222 N.J. 453, 467

(2015).

III.

The United States and New Jersey Constitutions allow an

investigatory stop "where a police officer observes unusual

conduct which leads him reasonably to conclude in light of his

experience that criminal activity may be afoot." Terry v. Ohio,

392 U.S. 1, 30 (1968); State v. Davis, 104 N.J. 490, 504-05 (1986).

An investigatory stop is valid "if, based on the totality of the

circumstances, the officer had a reasonable and particularized

suspicion to believe that an individual has just engaged in, or

was about to engage in, criminal activity." State v. Stovall, 170

N.J. 346, 356 (2002).

Reasonable suspicion "requires '"some minimal level of

objective justification for making the stop."'" State v. Amelio,

197 N.J. 207, 211-12 (2008) (citations omitted). "Although a mere

'hunch' does not create reasonable suspicion, 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." State v. Gamble, 218 N.J. 412, 428

7 A-4376-15T4
(2014) (citations omitted). "Because the 'determination of

reasonable [and articulable] suspicion is fact-sensitive,' a

careful review of the totality of the circumstances surrounding

each case is required." State v. Mann, 203 N.J. 328, 338 (2010)

(alteration in original) (citation omitted). Here, the totality

of the circumstances gave rise to reasonable suspicion both of a

traffic violation and of illegal possession of a firearm.

"'It is firmly established that a police officer is justified

in stopping a motor vehicle when he has an articulable and

reasonable suspicion that the driver has committed a motor vehicle

offense.'" State v. Locurto, 157 N.J. 463, 470 (1999) (citation

omitted). Here, it is undisputed Officer Gibson had the right to

stop the FJ Cruiser once he and the other officers saw it commit

a motor vehicle violation by driving without headlights on the

streets around midnight. N.J.S.A. 39:3-47(a) ("No person shall

drive . . . any vehicle . . . on any street or highway during the

times when lighted lamps are required unless such vehicle . . .

displays lighted lamps[.]"). Thus, when Gibson saw the FJ Cruiser

parked at the Wawa, he had the right to detain the FJ Cruiser and

its driver, defendant.

In addition, Officer Gibson had a reasonable suspicion the

occupants of the FJ Cruiser had one or more firearms. Gibson was

aware of the report of the shooting at Delsea Gardens, which had

8 A-4376-15T4
been confirmed by Officer Rehmann's discovery of the bullet hole,

bullet fragments, and shell casings. Gibson also knew that Officer

McLaughlin had received information that the shooting was done by

persons in the FJ Cruiser.

"[A]s a general rule, '[a]n anonymous tip, standing alone,

is rarely sufficient to establish a reasonable articulable

suspicion of criminal activity.'" State v. Golotta, 178 N.J. 205,

228 (2003) (citation omitted). "[H]owever, there are situations

in which an anonymous tip, suitably corroborated, exhibits

'sufficient indicia of reliability to provide reasonable suspicion

to make the investigatory stop.'" Florida v. J.L., 529 U.S. 266,

270 (2000) (citation omitted). "When an anonymous tip is involved,

additional factors must be considered to generate the requisite

level of reasonable and articulable suspicion." State v. Privott,

203 N.J. 16, 26 (2010).

Unlike those cases, which involved anonymous telephone calls,

here the individual spoke to Officer McLaughlin face-to-face.

"Generally speaking, information imparted by a citizen directly

to a police officer will receive greater weight than information

received from an anonymous tipster." State v. Basil, 202 N.J.

570, 586 (2010). "'[W]hen a tip is made in-person, an officer can

observe the informant's demeanor and determine whether the

informant seems credible enough to justify immediate police action

9 A-4376-15T4
without further questioning.'" Ibid. (citation omitted). "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.

This is so even though the individual "refuse[d] to give any

identifying data about [him]self out of an expressed fear for

h[is] safety," as that "does little to diminish the reliability

of the information." Id. at 576-87 (finding probable cause that

the defendant had a gun based on face-to-face information from a

woman who refused to identify herself). "One reason a face-to-

face encounter with a citizen is considered more reliable than a

purely anonymous tipster is that 'an in-person informant risks

losing anonymity and being held accountable for a false tip.'"

State v. Hathaway, 222 N.J. 453, 471 (2015) (quoting Basil, 202

N.J. at 586). Here, the individual reported the shooting "in a

face-to-face conversation," allowing Officer McLaughlin to observe

his "physical characteristics" including race, sex, height, and

weight, "providing the possibility of his later identification."

Id. at 475 (finding an officer could reasonably credit an anonymous

patron who reported a robbery face-to-face). Thus, "[t]his case

is not like Florida v. J.L.," Basil, 202 N.J. at 588-89, and the

individual was "more akin to an eyewitness citizen informant than

an anonymous tipster," Hathaway, 222 N.J. at 475.

10 A-4376-15T4
 The trial court found the officers could assume the individual

was providing reliable information when he stated he witnessed the

black FJ Cruiser with a white top enter Delsea Gardens and he knew

who did the shooting, establishing personal knowledge. The

individual stated the FJ Cruiser pulled into Delsea Gardens,

multiple persons exited the FJ Cruiser and began shooting,

reentered the FJ Cruiser, and left. This information was

sufficient to provide reasonable suspicion that the FJ Cruiser's

occupants had at least one firearm.

In any event, the individual's information was corroborated

in numerous ways. First, the officers had information that a

black FJ Cruiser with a white top had been involved in the

September 7 shooting. Second, the officers had found physical

evidence confirming that a shooting had taken place at Delsea

Gardens on October 1. Third, about thirty minutes after that

shooting, and only ten minutes after the individual spoke with

Officer McLaughlin, all three of the testifying officers saw a

Black FJ Cruiser with a white top pull into Delsea Gardens.2

Fourth, the FJ Cruiser immediately turned off its headlights and

left the complex "as soon as they saw the police cars." As the

trial court found, the officers could infer the occupants turned

2
Officer Rehmann testified that FJ Cruisers were not a "fairly
common, widespread type of vehicle."

11 A-4376-15T4
off the headlights of the FJ Cruiser, immediately drove off, and

illegally operated it on the street without lights "to conceal it

from identification by the officers." An attempt to hide from

police can contribute to reasonable suspicion. See State v.

Valentine, 134 N.J. 536, 553-54 (1994).

All that information gave Officer Gibson reasonable suspicion

the occupants of the FJ Cruiser had violated the motor vehicle

laws, reasonable suspicion they had just been involved in the

shooting incident at Delsea Gardens, and reasonable suspicion to

believe they were armed with guns and were trying to evade the

police. He thus had ample basis to "stop" the parked FJ Cruiser

and detain the occupants for an investigatory stop.

As Officer Gibson had reasonable suspicion the occupants had

at least one gun, had been shooting, and had tried to evade police,

it was entirely appropriate for him to order the occupants to exit

the FJ Cruiser at gunpoint. See, e.g., State v. Padilla, 321 N.J.

Super. 96, 108 (App. Div. 1999) (ruling that where a "caller

reported a person with a gun; consequently, the officers had the

right to draw their handguns"). "[T]he authority to conduct an

investigative stop must necessarily carry with it some ability to

effectuate such a stop, including the use of force, if necessary."

State v. Branch, 301 N.J. Super. 307, 319 (App. Div. 1997) (holding

officer properly drew and cocked gun to effectuate a stop), rev'd

12 A-4376-15T4
in part on other grounds, 155 N.J. 317 (1998). Gibson was

"authorized to take such steps as were reasonably necessary to

protect [his] personal safety and to maintain the status quo during

the course of the stop." United States v. Hensley, 469 U.S. 221,

235 (1985).

In Hensley, the United States Supreme Court held that an

officer's conduct in approaching the suspect with gun drawn in a

Terry stop "was well within the permissible range in the context

of suspects who are reported to be armed and dangerous." Id. at

223-24, 235. "The courts have rather consistently upheld such

police conduct when the circumstances . . . indicated that it was

a reasonable precaution for the protection and safety of the

investigating officers." 4 Wayne R. LaFave, Search and Seizure §

9.2(d), at 403 & n.124 (5th ed. 2012).3

Defendant notes "the principle that 'the investigative

methods employed [in a Terry stop] should be the least intrusive

means reasonably available to verify or dispel the officer's

suspicion in a short period of time." Privott, 203 N.J. at 31

(alteration in original) (quoting Florida v. Royer, 460 U.S. 491,

3
Defendant does not challenge the reasonableness of ordering
defendant and his passengers to exit the car, see State v. Bacome,
228 N.J. 94, 104-08 (2017), lie down, or be handcuffed, see State
v. Legette, 441 N.J. Super. 1, 28 (App. Div. 2015), rev'd on other
grounds, 227 N.J. 460 (2017).

13 A-4376-15T4
500 (1983)). Here, the officers engaged in non-intrusive means

by looking through the windows of the FJ Cruiser and seeing the

guns within, which verified their suspicions.

IV.

The seizure of the guns was permissible under the plain-view

doctrine. At the time of the stop, the doctrine justified a

warrantless seizure of evidence when:

(1) the officer was "lawfully in the viewing
area," (2) the officer discovered the evidence
"'inadvertently,' meaning that he did not know
in advance where the evidence was located nor
intend beforehand to seize it," and (3) it was
"immediately apparent" that the items "were
evidence of a crime, contraband, or otherwise
subject to seizure."

[State v. Earls, 214 N.J. 564, 592 (2013)
(citation omitted).]4

Here, the officers were lawfully present next to the FJ

Cruiser because they made a valid "stop" of the vehicle while it

was parked at a Wawa gas station.

Moreover, when Officers Gibson and Rehmann looked through the

FJ Cruiser's windows and saw the pistol protruding from, the pouch

behind the front passenger seat, and the revolver and the barrel

of the shotgun in the cargo area, it was immediately apparent that

4
Subsequent to this stop, our Supreme Court removed the
inadvertence requirement, but did so only prospectively. State
v. Gonzales, 227 N.J. 77, 101 (2016).

14 A-4376-15T4
the firearms were evidence of criminal activity. "The term

'immediately apparent' in the third factor means that the police

officer must have 'probable cause to associate the item[] with

criminal activity.'" State v. Bogan, 200 N.J. 61, 79 n.10 (2009)

(quoting State v. Bruzzese, 94 N.J. 210, 236-37 (1983)).

Defendant argues that while the officers could see the

firearms through the FJ Cruiser's windows, they could not seize

them. Our Supreme Court ruled otherwise in State v. Mann, 203

N.J. 328 (2010). In Mann, an officer peered into the open window

of a GMC Yukon SUV, saw what appeared to be drugs on the back

seat, opened the door, and seized the drugs. Id. at 334-35. The

Court ruled that the officer "was lawfully standing outside the

Yukon when he looked inside the open window and observed the

suspected drugs," and "conclude[d] that the plain view exception

to the warrant requirement applies, and that [the officer]'s

seizure of the drugs from the back seat of defendant's vehicle was

lawful." Id. at 340-41; see State v. Reininger, 430 N.J. Super.

517, 526-27, 535-36 (App. Div. 2013) (ruling an officer who saw

firearm cases in a vehicle could open the door and seize them

under the plain view doctrine); State v. Smith, 306 N.J. Super.

370, 379-81 (App. Div. 1997). "There is no legitimate expectation

of privacy shielding that portion of the interior of an automobile

which may be viewed from outside the vehicle by either inquisitive

15 A-4376-15T4
passersby or diligent police officers." Reininger, 430 N.J. Super.

at 534 (quoting Texas v. Brown, 460 U.S. 730, 740 (1983)).

Further, the discovery of the evidence was inadvertent. "The

purpose of the inadvertence requirement, in part, was to

acknowledge that 'where the discovery is anticipated, where the

police know in advance the location of the evidence and intend to

seize it,' the police should secure a valid warrant." Gonzales,

227 N.J. at 91-92 (citation omitted). Here, the police did not

know where the FJ Cruiser was until Officer Gibson found it at the

Wawa, and even then did not know if the gun or guns were still in

the FJ Cruiser or on its occupants, some of whom had fled and

others who had not been frisked until moments before the guns were

spotted. Thus, "the 'inadvertence' requirement of plain view

. . . was satisfied in this case because the police officers did

not know in advance that evidence would be found" in that precise

location. State v. Johnson, 171 N.J. 192, 213 (2002).

Thus, Officer Rehmann properly seized the pistol, revolver,

and shotgun that were in plain view. While he was doing so, the

handgun on the floor came into plain view. Accordingly, seizure

of the firearms was justified under the plain-view doctrine.

"Because the seizure of the [guns] was proper under the plain

view doctrine, it was not necessary for the State to establish

exigent circumstances under the automobile exception." Reininger,

16 A-4376-15T4
430 N.J. Super. at 537. In any event, exigent circumstances also

justified the search of the FJ Cruiser once the police saw the

guns.

At the time of this stop, the automobile exception permitted

a warrantless search of an automobile if: "(1) the stop is

unexpected; (2) the police have probable cause to believe that the

vehicle contains contraband or evidence of a crime; and (3) exigent

circumstances exist under which it is impracticable to obtain a

warrant." State v. Pena-Flores, 198 N.J. 6, 28 (2009).5 Under

that test, "courts must not only consider the mobility of the

vehicle or the lessened expectation of privacy in it, but also

must look, to all of the facts and circumstances surrounding the

search to determine the existence of exigency." Id. at 26.

Legitimate considerations are as varied as the
possible scenarios surrounding an automobile
stop. They include, for example, the time of
day; the location of the stop; the nature of
the neighborhood; the unfolding of the events
establishing probable cause; the ratio of
officers to suspects; the existence of
confederates who know the location of the car
and could remove it or its contents; whether
the arrest was observed by passersby who could
tamper with the car or its contents; whether
it would be safe to leave the car unguarded
and, if not, whether the delay that would be
caused by obtaining a warrant would place the
officers or the evidence at risk.

5
Subsequent to this stop, our Supreme Court removed the exigent
circumstances requirement in State v. Witt, 223 N.J. 409, 450
(2015), but did so only prospectively.

17 A-4376-15T4
 [Id. at 29.]

Here, the stop occurred after midnight. The FJ Cruiser

contained multiple firearms and its occupants had just been

shooting. Although four occupants had been secured by a number

of officers, two other occupants "who kn[e]w the location of the

car and could remove it or its contents" were at large. Ibid.

The search also took place at a Wawa, where "passersby . . . could

tamper with the car or its contents." Ibid. Further, it was

unsafe to leave the FJ Cruiser unguarded, and to delay to obtain

a warrant would place the officers and evidence at risk. Seeing

the guns gave the officers probable cause, there were sufficient

exigent circumstances to justify a search of the FJ Cruiser and

the seizure of the firearms.

The State also contends the officers could have conducted a

protective sweep of the FJ Cruiser to search for weapons because

they had reasonable suspicion. See State v. Gamble, 218 N.J. 412,

426-33 (2014). We need not reach that issue because the officers

had probable cause once they saw the firearms, and could properly

seize them under the plain view and automobile exceptions.

Affirmed.

18 A-4376-15T4