NEW JERSEY DWI CENTER
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION D
DOCKET NO. A-4542-10T4
STATE OF NEW JERSEY,
MARK W. MACLAY,
Argued February 1, 2012 – Decided February 22, 2012
Amended February 29, 2012
Before Judges Sapp-Peterson and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-081.
Andrew J. Blair argued the cause for appellant.
Matheu D. Nunn, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Mr. Nunn, on the brief).
Defendant appeals from the order of the Law Division, denying de novo his motion to suppress a motor vehicle stop that led to his arrest and conditional plea to driving under the influence, N.J.S.A. 39:4-50. We reverse and remand.
Defendant was arrested and charged with driving under the influence in Mt. Olive Township on December 27, 2008. The facts related to the motor vehicle stop may be briefly stated. At a suppression hearing in municipal court on July 20, 2009, the arresting officer testified that he was prompted to conduct a motor vehicle stop of defendant based on information relayed by police dispatch. According to dispatch, an off-duty police officer reported that a “possible drunk driver” was traveling northbound on Route 206 near Flanders Netcong Road with a specific license number.
The arresting officer could not recall if the off-duty police officer called 911 or reached police some other way. He testified that the color of the vehicle matched the vehicle’s registration information. There was no evidence that defendant had been driving erratically or unusually, or that he had appeared to violate any motor vehicle law, other than the report of possible drunk driving.
The municipal court reserved decision and the case then took a circuitous procedural path. The day after the hearing, before the court ruled on the motion, the municipal prosecutor requested by letter dated July 21, 2009 that the court allow the State to supplement the record with a recording of the 911 transmission of the off-duty officer. The prosecutor submitted the recording with his request. In a response dated July 29,defense counsel objected to the requested supplementation of the record. He argued that the parties had rested and the State’s disclosure was late — defense counsel having requested discovery in January — and it was prejudicial.
By letter opinion dated September 14, 2009, the municipal court accepted the additional evidence without argument or reopening the hearing for additional testimony, and then denied the motion to suppress. The court specifically addressed the 911 recording, noting that the off-duty officer stated to the 911 operator that he observed the operator of the vehicle driving erratically and possibly under the influence. Relying on State v. Golotta, 178 N.J. 205, 213 (2003), the municipal court found that the 911 call carried “enhanced reliability;” the caller’s status as an off-duty officer further enhanced his reliability; and the arresting officer corroborated the caller’s “first hand observations.”
By letter to the court dated September 30, 2009, defense counsel objected that the court had considered the 911 recording without further hearing; he also objected that even as of the date of his writing, the 911 recording had never been served on him. However, sometime after the court’s decision, defendant entered his conditional plea, admitting that he was operating a motor vehicle with a blood alcohol level of .21 percent. The court sentenced defendant to seven months license suspension, ordered that he attend the Intoxicated Driving Resource Center for twelve hours, and imposed appropriate fines and penalties. The court stayed sentence pending municipal appeal.
In September 2010, the Law Division remanded the case to the municipal court for a formal decision on the State’s request to supplement the hearing record with the 911 recording. The Law Division’s order reportedly provided that if the municipal court on remand determined that the 911 recording had been properly considered, then the matter would be returned to the Law Division for further consideration of the municipal appeal; but, if the municipal court on remand determined that the 911 recording had not been properly considered, then the court was directed to determine the suppression motion without it on the balance of the existing record.
1 When the remand was heard, the original judge was no longer sitting in municipal court. On November 8, 2010, the new judge created a record of defense counsel’s request for all discovery in the matter, which was made by a letter dated December 31,
1 A copy of the order was not included in the record on appeal, but it was described in the transcript of the municipal appeal.
2008; the State’s disclosure of the police report; and counsels’ two letters from July 2009. The judge declined to rule on whether the 911 recording should have been excluded by his predecessor.
The matter came before the Law Division again in May 2011. The court sustained defendant’s objection to consideration of the 911 recording, reasoning the State violated its continuing duty to provide it; defense counsel did not have an opportunity to cross-examine witnesses regarding it; and he did not have the opportunity to argue its significance before the municipal court. The Law Division judge noted that even as of its hearing in May 2011, the 911 recording still had not been disclosed to defense counsel.
Based on the remaining record, however, the court denied anew the motion to suppress.
The court held that under State v. Amelio, 197 N.J. 207 (2008), cert. denied, __ U.S. __, 129 S. Ct. 2402, 173 L. Ed.2d 1297 (2009), and State v. Golotta, 178 N.J. 203 (2003), the officer had a reasonable and articulable suspicion of a motor vehicle violation, based on the reliable report of an off-duty officer, notwithstanding that the arresting officer was uninformed of the details that led the off-duty officer to suspect the driver was under the influence.
The caller . was known to be a police officer who provided a sufficient quantity of information, including the license plate and the location of the vehicle. The information provided was with sufficient specificity to permit [the arresting] Officer . to reasonably conclude that the Defendant’s vehicle was in fact the suspected vehicle.. . . Granted all he was told was there [w]as a possible drunk driver, he wasn’t specifically told if the vehicle was weaving or how it was traveling, but an off duty police officer said that it was a possible drunk driver.
. . . [T]his was just a temporary stop. This was not intrusive. The officer, by being told by dispatch that there was a possible drunk driver and it came from an off duty police officer, certainly [the arresting] Officer . could draw a reasonable inference that the officer who reported it certainly had some type of training in DWI detection. It’s an officer, all officers go through the academy. I think that’s well known. And I think that it’s a reasonable inference that a police officer, when he’s told that here’s a possible drunk driver by another officer, that that inference could be drawn and that nothing further is needed.
The court denied a motion to stay the sentence pending appeal and imposed sentence anew, consistent with the sentence imposed by the municipal court. On appeal, defendant argues that the police lacked reasonable and articulable suspicion for the stop. The State did not file a cross-appeal challenging the exclusion of the 911 recording.
In reviewing a trial court’s decision on a municipal appeal, we determine whether sufficient credible evidence in the record supports the trial court’s decision. State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 384 (App. Div. 2000). Unlike the Law Division, which conducts a de novo review on the record, R. 3:23-8(a), we do not make independent findings of fact. State v. Locurto, 157 N.J. 463, 471 (1999). However, we exercise plenary review of legal conclusions that flow from established facts. State v. Handy, 206 N.J. 39, 45 (2011). It is the legal conclusions of the trial court with which we disagree. A police officer may, without a warrant, conduct an investigatory traffic stop based on a reasonable and articulable suspicion that the defendant engaged in a traffic offense. “[A] stop founded on a suspected motor vehicle violation essentially is governed by the same case law used to evaluate a stop based on suspected criminal or quasi-criminal activity.” Golotta supra, 178 N.J. at 213. See also State v. Puzio, 379 N.J. Super. 378, 381 (App. Div. 2005).
The “articulable reasons” or “particularized suspicion” of criminal activity must be based upon the law enforcement officer’s assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of officer’s experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual’s freedom.
[State v. Davis, 104 N.J. 490, 504 (1986).]
The State bears the burden to “demonstrate by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion.” Amelio, supra, 197 N.J. at 211.
Reasonable and articulable suspicion does not require that the officer prove that a defendant actually committed a motor vehicle violation; he or she need only prove that there existed reasonable and articulable suspicion of a violation. State v. Williamson, 138 N.J. 302, 304 (1994); State v. Jones, 326 N.J. Super. 234, 239 (App. Div. 1999). On the other hand, the investigatory stop may not be predicated on “unparticularized suspicion or ‘hunch.’” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L. Ed.2d 889, 909 (1968). Rather, the officer must be able to base his actions on “specific and articulable facts” and rational inferences from those facts. Amelio, supra, 197 N.J. at 212 (internal quotations omitted). See also Golotta, supra, 178 N.J. at 221 (911 caller must convey “a unmistakable sense that the caller has witnessed an ongoing offense”); State v. Nishina, 175 N.J. 502, 511 (2003) (State must possess “some minimal level of objective justification for making the stop”) (internal quotation omitted).
In assessing a stop that is based solely on information provided to the arresting officer, as opposed to the officer’s own observations of suspected unlawful activity, the court must assess both the reliability of the source of the information, and the adequacy of the information itself, to determine if there is a reasonable and articulable suspicion of unlawful activity. Golotta, supra, 178 N.J. at 213-14. “Generally, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” Ibid. (internal citations and quotations omitted). “Generally, where an officer relies on information provided by others the question is the reasonableness of the officer’s reliance on that information under the totality of the circumstances.” State v. Pitcher, 379 N.J. Super. 308, 319 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). However, when the source of information is another police officer, the reliability may usually be presumed. United States v. Ventresca, 380 U.S. 102, 111, 85 S. Ct. 741, 747, 13 L. Ed.2d 684, 691 (1965); United States v. Yusuf, 461 F.3d 374, 385 (3d Cir. 2006). See also Kevin G. Byrnes, N.J. Arrest, Search & Seizure, § 6:3-1a (2011)
(“When one officer communicates his or her observations to other officers, that same high degree of reliability is usually accorded to the data conveyed.”).
An arresting officer who has gathered no evidence and made no observations himself upon which to ground a reasonable and articulable suspicion, may rely upon evidence gathered or observations made by other officers. State v. Crawley, 187 N.J. 440, 457 (“[I]f the dispatcher . . . had been provided adequate facts from a reliable informant to establish a reasonable suspicion that defendant was armed, common sense tells us that the dispatcher had the power to delegate the actual stop to officers in the field.”), cert. denied, 549 U.S. 1078, 127 S.Ct. 740, 166 L. Ed.2d 563 (2006); State v. Fioravanti, 46 N.J. 109, 122 (1965) (stating that “[p]robable cause must be judged on the basis of . composite information” possessed by police), cert. denied, 384 U.S. 919, 86 S. Ct. 1365, 16 L. Ed.2d 440 (1966). Moreover, the officer conducting the arrest or stop need not be apprised of the detailed basis of the other officer’s evidence or observations. “[O]fficers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.” Crawley, supra, 187 N.J. at 457. See also Fioravanti, supra, 46 N.J. at 123 (“A policeman directed to stop a fleeing car and to apprehend its occupants for burglary cannot hold a hearing. He must assume that reason exists for the order and act on that premise.”).
On the other hand, where the officer conducting the arrest or stop relies solely on the information from others, the police intrusion must be sustained on the basis of the information received. Put another way, the police intrusion is not insulated from scrutiny because the police officer conducting the arrest or stop relied in good faith on others. “[A]n otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.” Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L. Ed.2d 306, 313 (1971).
[I]f the information received by the dispatcher or headquarters fell short of the suspicion required by law for an investigatory stop, the fact that Officers relied in good faith on the dispatch would not make the stop a constitutional one. Ultimately, the State must prove that a warrantless, investigatory stop was based on reasonable and articulable suspicion, and failing that any evidence obtained as a result of an unconstitutional stop must be suppressed.
[Crawley, 187 N.J. at 157-58 (internalcitations omitted).]
See also Handy, supra, 206 N.J. at 47-48 (suppression compelled where officer arrested defendant pursuant to direction of dispatcher, who unreasonably relied on ten-year-old warrant that did not match defendant). Our Supreme Court has found reasonable and articulable suspicion of driving under the influence where the operator was observed to be drunk before entering a vehicle. Amelio, supra, 197 N.J. at 213 (seventeen-year-old daughter of defendant reported to police that after a verbal fight in household, she observed her father was drunk and left the house in a car). The Court accepted that implicit in the daughter’s report of her father’s drunkenness was observation of “signs of drunkenness [that] are matters of common knowledge and experience.” Id. at 214. “The caller’s description that her father was drunk provided a sufficiently precise description of a commonly understood condition, and therefore, no further elaboration of his condition was required.” Id. at 215.
However, unlike those motor vehicle violations that are observed directly, the police in a DUI case often must infer that a driver is under the influence based on the manner in which the driver operates his vehicle. In some cases, the mode of operation may involve an independent violation of motor vehicle law that provides separate grounds for a stop, such as speeding, N.J.S.A. 39:4-99. See, e.g., Locurto, supra, 157 N.J. at 466. The observation that a vehicle was “all over the road,” “out of control,” and “weaving back and forth” was sufficient to justify a stop that led to a conviction for violating N.J.S.A. 39:4-50. Golotta, supra, 178 N.J. at 209. Failure to maintain a lane, N.J.S.A. 39:4-88(b), has been found to justify an investigatory stop. See, e.g., Cerefice, supra, 335 N.J. Super. at 377-78 (stop warranted by erratic driving consisting of driver’s failure to maintain lane by repeatedly veering onto shoulder).
In other cases, the visual cues may not present a clear case of a separate motor vehicle violation. Driving below the speed limit, or pausing longer than usual when a light turns green may not violate the motor vehicle law, unless perhaps it impedes traffic, N.J.S.A. 39:4-97.1. Weaving within a lane is not failure to maintain a lane. Cf. N.J.S.A. 39:4-88(b). Yet, under appropriate circumstances, such behavior may be a reasonable indication of driving under the influence.2 See State
2 The National Highway Traffic Safety Administration has analyzed over 12,000 traffic stops and issued a guidance document regarding visual indicators of driving under the influence. See “The Visual Detection of DWI Motorists,” www.nhtsa.gov/ staticfiles/nti/pdf/808677.pdf. One cue is “Speed and Braking Problems,” described to include driving more than ten mph below the speed limit. Officers statistically found drivers to be under the influence over forty-five percent of the time when
v. Dickey, 294 N.J. Super. 619, 622 (App. Div. 1996)
(investigative stop upheld where a trooper stopped a car going 21 m.p.h. under the speed limit and weaving in and out of traffic lanes), rev’d on other grounds 152 N.J. 468 (1998).
Applying these principles, we are constrained to reverse, notwithstanding the reliability of the off-duty officer’s report and the arresting officer’s confirmation that he had stopped the driver that the off-duty officer had observed. There is little question regarding the reliability of the source of information utilized in this case. The report of the possible drunk driver came from an off-duty police officer.3 Nor is there any question that the vehicle the off-duty officer observed was the vehicle stopped by the arresting officer. See Golotta, supra, 197 N.J. at 215 (stating that officer and the court must possess sufficient information to be “certain that the vehicle stopped is the same as the one identified by the caller”) (internal quotations omitted).
conducting a stop because of such a speed issue. Moreover, when that factor was coupled with another cue, such as lack of vigilance, described to include responding more slowly than normal to a change in a traffic signal, the likelihood of driving under the influence rose to seventy percent. Ibid.
3 By contrast, a significant issue in Golotta, supra, and Amelio, supra, was the reliability of the person making the report to the police of the suspected violation of N.J.S.A. 39:4-50.
However, suppression is compelled because the State has failed to present sufficient facts upon which one could draw a reasonable and articulable suspicion of driving under the influence. There was no observation of inebriation or alcohol consumption before defendant entered his vehicle; nor was there any record evidence — after suppression of the 911 recording — that defendant was observed driving erratically, or unusually, or in violation of other motor vehicle laws. The off-duty officer’s conclusory report that defendant was a “possible drunk driver” does not suffice. On the record before us, we cannot determine whether the report was a “hunch,” or grounded in specific observed facts leading to a reasonable inference of a violation of N.J.S.A. 39:4-50.
Contrary to the State’s argument, Amelio and Golotta do not compel a different result. We recognize that contemporaneous reports of life-threatening motor vehicle violations, such as driving under the influence, are treated differently from other reports of unlawful activity. Golotta, supra, 178 N.J. at 220.
In light of the need to act swiftly to protect the public, and the relatively lesser intrusion involved in a motor vehicle stop, as opposed to a search, our Court has required a reduced degree of corroboration of 911 reports from informants or concerned citizens that someone is driving under the influence. Id. at 217-22. However, the information received must still establish an objective, factual basis for the suspicion of the motor vehicleviolation. As the Court stated in Golotta, supra, 178 N.J. at 221, the information must convey “an unmistakable sense” of a violation. In Amelio, supra, the daughter observed her father was drunk before he entered a vehicle. The off-duty officer’s observation here that defendant was a “possible drunk driver” did not imply any direct observation of defendant’s alcohol consumption. In Golotta, the defendant was observed driving erratically — “all over the road,” “out of control,” and “weaving back and forth.” No similar observations are in the record before us. We reverse and remand to the municipal court to allow defendant to withdraw his conditional guilty plea and for further proceedings consistent with this opinion.
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