State v Audubato
In State v. Adubato (Docket No. A-3419-09T1, Decided May 23, 2011) the New Jersey Superior Court held that police use his flashers when pulling up behind a stopped car late at night does not elevate a field inquiry into a Terry stop. The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, and to pat him down for the officer’s safety, if that stop is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. Under this standard, an investigatory stop is valid only if the officer has a particularized suspicion based upon an objective observation that the person stopped has been engaged or is about to engage in criminal wrongdoing.
Here, after receiving dispatcher notification about a possibly intoxicated driver “continually driving around the neighborhood . . . exiting the vehicle,” Officer Horton found defendant’s car—matching the license number provided by the dispatcher—stopped on the side of the road, with the engine running, the lights on, and the defendant speaking loudly on a cell phone. At the time Horton was unaware that the vehicle was parked in front of defendant’s residence because he had not yet performed a record check. When Horton approached the car he detected a strong odor of alcohol. He observed that defendant’s eyes were bloodshot and his speech slurred. Defendant, upon questioning, admitted to Horton that he had been drinking at a pub, at which time Horton administered field-sobriety tests. Based upon the results of those tests defendant was arrested and charged with DWI, among other offenses.
On appeal from denial of defendant’s motion to suppress, the court sought to determine whether, under the totality of the circumstances, Horton’s conduct violated defendant’s constitutional rights. Under the circumstances, the court found that further inquiry by Horton was warranted under both Pineiro (field inquiry standard) and Martinez (community caretaker standard). The court found Horton’s conduct to be “constitutionally ambiguous.” That is, while defendant may have been concerned that he was not free to drive away, he may also have been reassured that the person parking behind was a police officer rather than a stranger with potentially unfriendly intentions. Because the use of the flashing lights was routine, and enhanced Horton and his partner’s safety, as well as that of defendant, the court found it to be acceptable conduct. Moreover, once Horton ascertained that defendant had the odor of alcohol on his breath, bloodshot and watery eyes, slurred speech, and that he had been drinking, he had a sufficient basis for a Terry stop. As such, the denial of defendant’s motion to suppress was upheld.