NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6040-05T46040-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CADREE B. MATTHEWS,

Defendant-Appellant.

________________________________

Submitted February 4, 2008 - Decided

Before Judges Lintner, Sabatino and Alvarez.

On appeal from the Superior Court of

New Jersey, Law Division, Union County, Indictment Nos. 05-05-0554 and 05-05-0556.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

LINTNER, P.J.A.D.

Following a denial of his motion to suppress and a subsequent unsuccessful Miranda hearing, defendant, Cadree B. Matthews, pled guilty to third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count One) and third-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Two), as charged in Union County Indictment Number 05-05-0554. Defendant also pled guilty to second-degree unlawful possession of a handgun by a person having previously been convicted of Possession of a Controlled Dangerous Substance with Intent to Distribute, N.J.S.A. 2C:39-7b, as charged in Union County Indictment Number 05-05-0556. He reserved the right to appeal the denial of his motion to suppress the gun recovered by the police.

The judge granted the State's motion for an extended term as a persistent offender, N.J.S.A. 2C:44-3a, and imposed a ten- year term of incarceration with five years of parole ineligibility on the conviction of possession of a weapon by those previously convicted, N.J.S.A. 2C:39-7b. On each of the remaining third-degree offenses, the judge imposed concurrent five-year terms to run concurrent with the ten-year term.

The central issue presented by this appeal is whether an anonymous tip, standing alone, can form the basis for a Terry stop and frisk search, as well as a search of a motor vehicle. We hold that, under the circumstances of this case, both the stop and frisk and the search of the vehicle violated the Fourth Amendment prohibition against unreasonable searches and seizures. Accordingly, the order denying the suppression of the evidence and the judgment of conviction on both weapons offenses are reversed.

The following undisputed facts emerged from the suppression hearing. On February 19, 2005, at approximately 2:30 a.m. while on patrol in his marked vehicle, Officer James Edgar of the Linden Police Department received a radio report from headquarters that an individual in a burgundy Durango with a temporary tag was flashing a gun at the 1100 block of East St. George Avenue in Linden. Edgar and Officer Birch responded in separate police vehicles and arrived at the scene, described as a well-lit business district.

As Birch and Edgar converged on the Durango, they considered it to be a "high risk traffic stop." The Durango had dark-tinted windows, making it difficult to see inside. Birch ordered the driver to take the keys out of the ignition, place them on the roof, and exit the vehicle. He complied. A pat- down search of the driver did not turn up any weapons. The two remaining occupants sitting in the rear of the Durango were ordered out of the car. A pat-down search of both passengers also revealed no weapons. Other officers arrived at the scene. After the driver and occupants were taken to a secure location, several officers searched the vehicle for weapons. A gun was found under the front passenger seat. The driver and occupants were then arrested. Photographs were taken of the gun and its location in the car.

Meanwhile, a black male, later identified as defendant, approached the scene and made several attempts to get into the vehicle. The officers told defendant that there was an investigation in progress and to leave the scene. He refused, became irate and combative, and again tried to get into the Durango. As a result, defendant was placed under arrest. While in the back seat of Edgar's police vehicle in handcuffs, prior to being advised of his Miranda rights, defendant volunteered that the gun was his. Later at headquarters, after being given his Miranda rights, defendant made a similar statement.

Denying defendant's motion to suppress the gun, the judge issued a letter opinion posing the following rhetorical question and answer:

Safety of the officers is both legitimate and weighty. The pat-down search revealing negative results, the question then becomes whether or not the officers violated any of the defendants' rights by going further and searching the motor vehicle or whether the officers, having found no weapons on the pat-down search, should have permitted the occupants of the vehicle to return to the vehicle without securing that vehicle to assure that there were no guns in the vehicle. Stating the question states the answer. The same exigencies, articulable suspicion, and justification that allows the pat-down search for the protection of the officers and the public, allows the minimal intrusion into the vehicle compartment to make sure the vehicle was safe for the public and the officers. To conduct a protective weapons search of the car, the police are required to conform to the [Terry] standard. Here the information and confirmation of same provides the basis for the validity of the stop and the scope of the search to the inner compartment of the vehicle was reasonably confined to safety concerns.

(citations omitted.)

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS THE EVIDENCE SEIZED WHERE THE POLICE ILLEGALLY STOPPED AND SEARCHED THE VEHICLE WITHOUT PROBABLE CAUSE.

a. The information provided by an unnamed informant did not provide an objectively reasonable suspicion necessary to justify the "stop and frisk" of the individuals in the vehicle.

b. The officers did not have an articulable suspicion that the occupants of the vehicle posed a danger justifying the warrantless search of the vehicle.

POINT II

THE COURT ABUSED ITS DISCRETION IN SENTENCING [DEFENDANT] TO AN EXTENDED TERM OF IMPRISONMENT AND DID NOT ADEQUATELY CONSIDER THE MITIGATING FACTORS IN THIS CASE.

POINT III

PURSUANT TO THE NEW JERSEY SUPREME COURT'S RECENT HOLDING IN STATE V. PIERCE, DEFENDANT'S SENTENCE MUST BE VACATED AND HIS CASE REMANDED TO THE LOWER COURT FOR RESENTENCING.

Defendant challenges both the stop and entry into the vehicle to search for the weapon. The State asserts that the anonymous tip provided a reasonable suspicion to permit the stop and search of the Durango, thus passing constitutional muster. The State also argues, for the first time on appeal, that because defendant abandoned the gun he is not afforded protection under the Fourth Amendment.

The United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." U.S. Const. amend. IV,