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N.J.S.A. 2C:39-5(c), after his motion to "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3058-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS BOYD,

Defendant-Appellant.

____________________________________ April 3, 2012 Submitted March 21, 2012 - Decided

Before Judges Graves and J. N. Harris.

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On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-08-0667.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Marianne V. Rogers, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Thomas Boyd pled guilty to third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c), after his motion to

suppress was denied. He appeals, arguing the following: POINT I: THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE EVIDENCE BECAUSE THE COURT'S FINDINGS OF FACT WERE MISTAKEN, AS THE VIDEO ESTABLISHES THAT AT THE TIME THE OFFICER DECIDED TO STOP THE VEHICLE, THE LICENSE PLATE WAS NOT OBSTRUCTED AND THE OFFICER HAD NO OTHER BASIS FOR CONDUCTING A MOTOR VEHICLE STOP.

We affirm based upon our review of the record. I. On June 23, 2009, shortly after midnight, Millville Police Officer Vernon Babka responded to a dispatch relating to a burglar alarm activation at a car dealership on Second Street. While enroute, Officer Babka passed a gray Ford pickup truck going in the opposite direction, noticing its distinctive blue light bar on the roof. Officer Babka met two other police officers at the car dealership, and together they conducted a brief survey of the premises. They quickly determined that the premises were secure and had not been forcibly entered. While conversing with the others, Police Officer Babka saw the same Ford pickup truck enter the parking lot. As described by the police officer, "once it noticed that we were there it abruptly headed out of
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the parking lot quicker than it came in." At that time, Officer Babka also observed that the driver was a white male wearing a bandana. Two to five minutes later, while Officer Babka waited in the neighborhood, the pickup truck reappeared near the closed businesses. Officer Babka began to follow the pickup truck because he found it suspicious that "[i]t was driving around numerous parking lots of businesses that were closed at that time." He then observed what he described as "[a] trailer hitch blocking the license plate, obstructing the view." It was later described as "a metal ball there in the middle of the plate." Officer Babka activated his overhead lights, which triggered a video recording of events, and initiated a motor vehicle stop of the pickup truck. With the assistance of Sergeant Hagar and Police Officer Sataro, Officer Babka approached the driver of the pickup truck. Officer Babka testified to what happened next: When I approached the vehicle I could see on the passenger side that there was a soft case for a rifle, and it appeared to be a butt stock because the case was unzipped, and I could see . . . it from that driver's side. And Sergeant Hagar yelled out the word, "Gun." He had seen the gun in the vehicle.

The police officers immediately drew their service weapons and ordered the two occupants to exit the vehicle. Boyd was the passenger; co-defendant Keith Budd was the driver. Two weapons were recovered from inside the pickup truck. The first was the weapon that Officer Babka had observed between "[t]he passenger's leg and the door"; the second was a gun located "between the driver and passenger on the bench seat." After considering all of the evidence presented at the suppression hearing, including the video recording of the motor vehicle stop, the Law Division denied Boyd's motion to suppress. Concluding that "it's one o'clock in the morning and this burglar alarm is going off," the motion court found that there was reasonable suspicion to stop the pickup truck and question its occupants. Furthermore, even though "the [c]ourt [did not] find that trailer hitch to be a substantial obstruction," there was a sufficient basis for Officer Babka to "pull the car [sic] over for that statutory violation,[ ] as well." The motion court stated, "[t]he [c]ourt does not question Officer Babka's credibility." On appeal, Boyd challenges only the circumstances surrounding the motor vehicle stop. He does not contest
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the plain view observation of the rifle case or the seizure of the weapons without a warrant. His primary focus is on Officer Babka's supposed lack of credibility in relying upon the trailer hitch obstruction as the basis for the motor vehicle stop. Boyd contends that "once the vehicle's license plate [came] into view on the video, it is clear that it was unreasonable for Officer Babka to suspect that the vehicle was violating N.J.S.A. 39:3-33 because no part of the license plate was concealed or obscured." Even if these conclusions were discernable from the record, we are satisfied that Officer Babka's stop of the pickup truck did not violate any constitutional principles because it was based upon, as the motion court found, reasonable suspicion of unlawful activity. II. Our scope of review of the motion court's factual findings and credibility determinations in a suppression hearing is limited. We will uphold the court's factual findings if they are "'supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007) (further citation omitted)). We "give deference to those findings of the trial judge which are substantially influenced by [the] 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). Appellate review of the motion court's legal conclusions, however, remains plenary. Handy, supra, 206 N.J. at 45. The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect against "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I,

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