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 interests of brevity, portions of any opinion may not have been summarized).

State v. Danny Mai (A-98-08)

Argued October 13, 2009 -- Decided May 6, 2010

RIVERA-SOTO, J., writing for a unanimous Court.

The question in this appeal is whether police were authorized to open the door of a vehicle as part of ordering a passenger to exit.

In the early morning hours of May 4, 2007, Jersey City Police Officers Michael Szymanski and Martha Rodriguez responded to a radio call of a man wearing a black jacket and mask and waving a gun. Before arriving at the scene, the officers received a separate radio call about a silver van double-parked in the same area, with several young men milling around it. Two other police cars arrived as back-up, and the officers conducted a motor vehicle stop of the van. As Officer Szymanski approached, he saw a large group inside the van moving around, but he could not tell what they were doing. He explained that he was concerned about the officers' safety because of the call of a man with a gun, and that he did not want to take a chance of the man firing on him. Officer Szymanski opened the passenger-side sliding door and observed defendant Danny Mai seated next to the door on the middle row of seats, wearing a "black thing around his neck," an outfit consistent with the earlier radioed description of "the man with a gun." Officer Szymanski instructed defendant to come out and place his hands on the ground to be patted down for weapons. As defendant started to exit, the officers observed a gun on the floor where he was sitting. For safety reasons, the officers took the gun, which was a semi-automatic handgun loaded with seven rounds of ammunition in the magazine. Defendant was arrested. In a search incident to his arrest, police recovered another magazine loaded with seven rounds in his pocket and a gun holster strapped to his shoulders.

Defendant was charged with two weapons offenses. He moved to suppress the evidence.