State v. Reininger, A-1833-11T1; Appellate Division; opinion by Graves, J.A.D.; decided and approved for publication May 20, 2013. Before Judges Graves, Espinosa and Guadagno. On appeal from the Law Division, Hunterdon County, Indictment No. 09-08-0303. DDS No. 14-2-0019 [26 pp.]

Patrolman Gregory Wester of the Readington Township Police Department observed a Toyota sport utility vehicle with its lights off parked behind a Wachovia Bank in the early morning hours. Approaching with a flashlight, he saw that the SUV had Texas license plates and defendant Duston Reininger asleep in the driver’s seat. Defendant produced a Texas driver’s license but not the registration or proof of insurance.

Wester noticed several items "stacked" on the backseat and asked defendant if there was anything illegal in the SUV or if he was transporting any firearms. Defendant said no. However, Wester saw two nylon firearm cases on the backseat. He again asked if there were any firearms in the SUV and defendant again said "No."

When Wester confronted defendant about the cases on the backseat, defendant admitted he was transporting "long arms" to Texas. He then denied consent to search but admitted that there were firearms in the SUV.

Wester opened the back door and removed the cases "for safety reasons." Defendant then told another officer there were "approximately 12 firearms" in the SUV, including a loaded Glock handgun behind the driver’s seat. He was charged with hindering his own apprehension, advised of his Miranda rights, and handcuffed. Wester returned the cases to the SUV, which was towed to the police department. He later obtained a search warrant. The subsequent search revealed 21 firearms, hollow-nose bullets and a large-capacity magazine.

Defendant was indicted for, inter alia, unlawful possession of assault firearms, possession of handguns without a permit, unlawful possession of rifles, unlawful possession of shotguns, possession of hollow-nose bullets, and possession of a large-capacity ammunition magazine. His pretrial motion to suppress the evidence seized with and without a warrant and his statements to police was denied. He was tried in absentia and convicted on all counts except unlawful possession of assault firearms and handguns without a permit.

Defendant appeals, asserting numerous errors.

Held: The police officer’s seizure of the firearm cases on the backseat was justified under the plain-view exception to the warrant requirement since he was lawfully conducting a field inquiry from outside defendant’s SUV when he saw the cases, he did not have advance knowledge that firearms would be in the car, and he had probable cause to believe that defendant unlawfully possessed firearms.

The panel first rejects defendant’s claim that the indictment was defective because the prosecutor failed to instruct the grand jury on the exemption for the interstate transportation of firearms in 18 U.S.C.A. § 926A, finding that the exemption was not available because the firearms were not stored "in a locked container other than the glove compartment or console" and were directly accessible to defendant.

The panel then rejects defendant’s claim that the trial court erred in denying his motion to suppress evidence obtained with and without a search warrant and his statements made prior to arrest.

The panel says because defendant does not challenge the initial field inquiry, the question becomes whether the ensuing investigation was reasonably related to the circumstances that justified the interference in the first place. The U.S. Supreme Court has held that when circumstances give rise to suspicions unrelated to the initial detention, an officer may broaden the inquiry and satisfy those suspicions. Here, defendant’s inconsistent stories, inability to produce the registration, and his nervousness were sufficient justification for further investigation.

Also, a simple observation into the interior of an auto by a police officer located outside the car is not a search under the Fourth Amendment. It also is well-settled that Wester’s use of a flashlight to illuminate the cases on the rear seat did not transform an otherwise reasonable observation into an unreasonable search.

The trial court concluded the warrantless seizure was objectively reasonable for the safety of the officer. The panel opines that the warrantless seizure was not necessary for safety because defendant had been removed from the SUV and there were backup officers present.

However, the panel says the limited seizure was valid under the plain-view exception to the search warrant requirement. To satisfy this exception. Wester was lawfully conducting a field inquiry while standing outside defendant’s SUV when he saw the firearm cases. He did not have advance knowledge that firearms would be in the vehicle. And based on defendant’s initial denials that there were firearms in his car, Wester’s plain-view discovery of the cases, and defendant’s subsequent admission that he was transporting long arms to Texas, Wester had probable cause to believe that defendant possessed firearms in violation of the law. The plain-view exception clearly applies.

Because the seizure was proper under the plain-view doctrine, the state did not have to establish exigent circumstances under the automobile exception.

The panel holds that defendant’s motion to suppress his statements to the police before his arrest was properly denied since during Wester’s lawful seizure of the firearm cases, defendant was neither handcuffed nor secured in a police vehicle, and the video confirms he was not pressured or coerced into making any incriminating statements.

The panel also holds that there was sufficient probable cause to justify the warrant. Further, the court did not err in proceeding in absentia since defendant had actual notice of his scheduled trial date and the consequences of failing to appear.

The panel says that defendant’s argument, raised for the first time on appeal, that there was insufficient evidence to support his conviction for possession of a large-capacity magazine is procedurally barred because he failed to move for a new trial on that ground as required by Rule 2:10-1. Moreover, there was strong evidence to support the jury’s finding that defendant possessed a large-capacity magazine that was compatible and operable with a semi-automatic weapon. Nor was his possession of hollow-nose bullets protected by the exemption under N.J.S.A. 2C:39-3(g)(2) since he was not carrying the ammunition from its "place of purchase" to his dwelling.

Finally, the panel rejects defendant’s claim that New Jersey’s gun-control scheme violates his right under the Second Amendment of the U.S. Constitution to keep and bear arms.

For appellant — Evan F. Nappen, P.C. (Richard V. Gilbert on the brief). For respondent — Jeffrey S. Chiesa, Attorney General (Jennifer E. Kmieciak, Deputy Attorney General, on the brief).